Commonwealth v. Roberson

SPAETH, Judge,

dissenting:

I dissent.

Appellant was seventeen years old when he was arrested on January 23, 1975. The arresting officers took him to the Police Administration Building where, after questioning that lasted over a period of eight and one half hours, he confessed. At no time before appellant waived his Miranda rights did the police offer him the opportunity to consult with an interested, informed parent, adult, or lawyer.1 “Statements made by a juvenile without this protection must be suppressed.” Commonwealth v. Walker, 477 Pa. 370, 374, 383 A.2d 1253, 1255 (filed March 23,1978). See also Commonwealth v. Lawson, 478 Pa. 200, 386 A.2d 509(filed April 28, 1978); Commonwealth v. Graver, supra note 2; Commonwealth v. Smith, supra note 2.

The Commonwealth contends that appellant has failed to preserve his right to argue on appeal that his confession *477should have been suppressed because made without informed adult advice, on the theory that appellant’s post-verdict motions did not specifically advance this argument. Included in the post-verdict motions was this:

The Court erred in not granting defendant’s motion to suppress defendant’s alleged confession and admitting same into evidence as the statement was the fruit of an illegal arrest and the product of unnecessary delay between arrest and arraignment; furthermore, the defendant did not knowingly and intelligently waive his constitutional rights and the statement was involuntary under the totality of the circumstances. (Emphasis added.)

In Commonwealth v. Baylis, 477 Pa. 472, 384 A.2d 1185 (1978), the Supreme Court held that the emphasized language was insufficient to preserve a juvenile’s claim of ineffective waiver of Miranda rights in a suppression motion. It is not clear whether this holding is applicable to a case like this one, which involves not a suppression motion but a post-verdict motion; the requirements of Pa.R.Crim.P. 323(d) (a suppression motion must “state specifically and with particularity the evidence sought to be suppressed, the grounds for suppression, and the facts and events in support thereof”) appear more stringent than those of Pa.R.Crim.P. 1123(a) (“only those issues raised and the grounds relied upon in the motions may be argued” in post-verdict proceedings).2 I would not decide this point, however, but assume for sake of discussion that appellant’s post-verdict motions were not sufficiently specific. Nevertheless appellant preserved the issue now argued to us by including it in a brief submitted to the lower court as an addendum to the post-verdict motions. Commonwealth v. Pugh, 476 Pa. 445, 383 A.2d 183 (1978); Commonwealth v. Perillo, 474 Pa. 63, 376 A.2d 635 (1977).3

*478The Commonwealth argues that the failure to suppress appellant’s confession was harmless error because appellant took the stand and “spoke freely of his statement and the circumstances surrounding his confession.” Appellee’s Brief at 21. Citing Commonwealth v. Hart, 471 Pa. 271, 370 A.2d 298 (1977), the Commonwealth appears to read appellant’s testimony as a “reiteration” of his confession. However, the record demonstrates that appellant did not reiterate his confession, but repudiated it. The error therefore was not harmless. Commonwealth v. Lawson, supra 478 Pa. at 205, 386 A.2d at 511. The Commonwealth also argues that the error was harmless under the “overwhelming evidence” test. Under that test, however, the overwhelming evidence relied on must be uncontradicted. Commonwealth v. Story, 476 Pa. 391, 412-16, 383 A.2d 155, 166-68 (1978). Here, the victims’ identifications of appellant were contradicted by appellant’s own testimony of an alibi, corroborated by testimony by appellant’s mother.

I should reverse and remand for a new trial.

CERCONE, J., joins in this opinion.

. At the suppression hearing, police officers testified that appellant was permitted to make a telephone call to his mother, about six hours after the questioning begem. This call could not satisfy the requirement of consultation with an informed adult, i. e., one who has been informed of the suspect’s constitutioned rights. See Commonwealth v. Graver, 473 Pa. 473, 475, 375 A.2d 339, 340 (1977); Commonwealth v. Smith, 472 Pa. 492, 499-01, 372 A.2d 797, 801-02 (1977).

. Rule 323(d) is the cited basis for the holding of Commonwealth v. Baylis, supra.

. Although appellant’s counsel “submitted the brief] to the court as an addendum to [his] post-trial motions,” N.T. 742, the brief was not included in the record. It has, however, been made available to this court in accordance with the procedure sanctioned by the Supreme *478Court in Commonwealth v. Jones, 478 Pa. 172, 176 n.1, 386 A.2d 495, 497 n.1 (1978). See also Commonwealth v. Allen, 478 Pa. 342, 386 A.2d 964 (1978) (Dissenting Opinion by EAGEN, C. J.).