Commonwealth v. Smith

POMEROY, Justice,

dissenting.

This Court has recently evolved a new formula for assuring the voluntariness of confessions by juvenile suspects.1 The purpose of this rule is to ensure that the juvenile has the ability to “understand the full implica*507tion and consequences of . [his] predicament” and has sufficient judgment “to assess the spectrum of considerations encompassed in the waiver decision.” Opinion of the Court, at 800.

While one can only applaud the motivation of the Court in seeking to ensure the voluntariness of juvenile confessions admitted at trial, it has seemed to this writer and other members of the Court that the new approach is unnecessarily protective and overly paternalistic.2 Today’s decision further highlights the difficulties which this rule creates for our criminal justice system in the area of juvenile crimes.

In this case the majority concludes that the appellant, who was 17 years old at the time of his arrest, “did not receive the requisite protections envisioned in our recent case law,” 3 and accordingly holds that his confession should have been excluded from evidence. Three separate reasons are advanced as compelling this conclusion, any one of which, according to the majority, would have been sufficient to resolve this case:

(1) The Commonwealth failed to prove that Barry Smith’s father, who was informed by the police of his son’s constitutional rights, was an adult who was “interested” in his son’s welfare. Implicit in this portion of *508the Court’s discussion is the assumption that a parent who does not accompany his child to the police station is, ipso facto, not “interested” in him;

(2) The Commonwealth failed to prove that Smith’s father understood the constitutional rights possessed by his son;

(3) The Commonwealth failed to prove that Smith waived his right to consult with an interested adult before he made the confession here involved.4

The first and third of these propositions, at least, are novel even under the per se rulings of our recent cases. Their necessary consequence in many situations will be to preclude any police questioning of a juvenile. Where no sufficiently “interested” adult is nearby at the time a minor is arrested, the police must locate a suitable mentor for their suspect. Furthermore, this new rule, requiring the Commonwealth to show that a minor had an opportunity to consult with a concerned adult before making a confession, merely substitutes the judgment of an adult for that of the minor. It is no guarantee that a subsequent waiver by the minor of his rights is truly voluntary. Circumstances are easily imaginable where a minor who would not otherwise cooperate with the police will do so on the advice of a parent who, although aware of the nature of the minor’s rights, nevertheless advises him to tell the police the truth.5 The only way to pre*509vent this is to inquire also into what advice is actually given by the adult and then pass judgment on whether that advice helped the juvenile do what was best for himself in that situation. Are we to say that the nature and content of a consultation between a minor and a parent or other adult are to be examined by a suppression court, that the soundness of the advice given must be evaluated and the validity of the confession determined in the light of such findings? If so, a new and, I submit, unnecessary avenue of inquiry will be opened without any corresponding improvement in the ability of the court to fulfill its function of determining the voluntariness of a juvenile confession.

Finally, the majority here once more fails to explain why a youth of seventeen years of age is always entitled to more protection than is a youth of eighteen, or even as much as is a child of far more tender years.6

In sum, I adhere to the belief that some minors in some circumstances are capable of effectively waiving their constitutional rights without the advice of any adult and that no purpose is served by a per se rule which excludes from evidence a confession made by any juvenile whether or not the traditional test of voluntariness would mandate such exclusion.

EAGEN, C. J., joins in this dissenting opinion.

. The majority opinion refers to this new rule as a “technique which would avoid the warning of a juvenile becoming a mere ritual wherein the effect of actual comprehension is ignored.”

3. Opinion of the Court at 800.

. See Commonwealth v. Stanton, 466 Pa. 143, 351 A.2d 663, 667 (1976) (dissenting opinion of Pomeroy, J.); Commonwealth v. Webster, 466 Pa. 314, 353 A.2d 372, 379 (1976) (dissenting opinion of Pomeroy, J.); Commonwealth v. Chaney, 465 Pa. 407, 350 A.2d 829, 831 (1975) (dissenting opinion of Pomeroy, J., joined by Jones, C. J., and Eagen, J.); Commonwealth v. Riggs, 465 Pa. 208, 348 A.2d 429, 431 (1975) (dissenting opinion of Pomeroy, J.). The gravamen of these dissents is that the traditional test of the voluntariness of a waiver of constitutional rights by a juvenile in the light of all the circumstances surrounding the waiver, including the age of the suspect and his opportunity for guidance by a concerned adult, adequately protects youthful defendants. See, e. g., Commonwealth v. Fogan, 449 Pa. 552, 296 A.2d 755 (1972); Commonwealth v. Darden, 441 Pa. 41, 271 A.2d 257 (1970), cert. denied, 401 U.S. 1004, 91 S.Ct. 1243, 28 L.Ed.2d 540 (1971); Commonwealth v. Moses, 446 Pa. 350, 287 A.2d 131 (1971).

. Opinion of the Court at 800.

. One may inquire how the minor could effectively reject such an opportunity, which the majority has invested with due process significance, when by hypothesis he is unable to make a valid waiver of his other constitutional rights regarding interrogation without the guidance of a concerned adult.

. See Commonwealth v. Starkes, 461 Pa. 178, 335 A.2d 698 (1975) where the minor’s mother, who was admittedly uninformed (at least by the police) of her son’s constitutional rights, advised him “to tell the truth.” The majority’s reversal on the ground that she had not been so informed might be called a holding that a minor is entitled to the effective assistance of a parent.

In addition, I fail to see how a ten minute conversation between a child and parent in a proper environment will necessarily serve to fortify the minor against police interrogation which *509might otherwise prompt a confession. See Commonwealth v. McFadden, 470 Pa. 604, 369 A.2d 1156 (1976).

. Commonwealth v. Stanton, 466 Pa. 143, 351 A.2d 663, 664 (1976) (dissenting opinion by Chief Justice Jones).