dissenting.
I dissent. Appellant argues that a juvenile, because of his youth and lack of experience, is incapable of understanding the constitutional rights afforded him by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and therefore, without the aid and advice of someone more sophisticated and knowledgeable, any waiver on a juvenile’s part is a nullity. This argument follows the reasoning of a majority of this Court in recent rulings concerning confessions by juveniles. See Commonwealth v. Chaney, 465 Pa. 407, 350 A.2d 829 (1975); Commonwealth v. Webster, 466 Pa. 314, 353 A.2d 372 (1976); Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975); Commonwealth v. Starkes, 461 Pa. 178, 335 A.2d 698 (1975); Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974).
Prior to Commonwealth v. Roane, supra, this Court consistently ruled that the validity of a waiver of constitutional rights, be it by a juvenile or adult, depended upon whether the waiver was knowing and intelligent, and this in turn was to be resolved after a consideration of all the attending circumstances. In Roane, supra, however, a majority of this Court ruled that if the parent of a juvenile who is faced with police questioning specifically refuses to consent to a waiver of Miranda *616rights and to questioning of the juvenile, the prosecution has a heavy burden to establish that the juvenile’s waiver was knowing and intelligent. In the Roane opinion, it was stated that an important factor in determining whether a waiver of Miranda rights by a juvenile was knowing and intelligent would be evidence that, before any waiver was made, the juvenile had access to the advice and counsel of a parent, lawyer, or other adult interested primarily in his welfare. Since Roane, supra, a majority of this Court has extended Roane, and ruled that a waiver of Miranda rights by a juvenile is per se involuntary, unless the juvenile is granted beforehand the benefit of counsel or parental or informed interested adult guidance. Commonwealth v. Smith, 465 Pa. 310, 350 A.2d 410 (1975); Commonwealth v. Chaney, supra; Commonwealth v. Riggs, supra; Commonwealth v. McCutchen, supra. In Commonwealth v. Smith, supra, this Court stated:
“ ‘. . . absent a showing that a juvenile had an opportunity to consult with an interested and informed parent, or adult or counsel before he waived his Miranda rights, his waiver will be ineffectual.’ ” [Emphasis in original.] [Quoting from Commonwealth v. Chaney, supra.] 465 Pa. at 312, 350 A.2d at 411.
Appellant McFadden was arrested at 4:30 a. m., at his home in his mother’s presence. At the time he was informed of his Miranda rights. He was then handcuffed to a chair in the living room and left there, with his mother, while the police completed their search of the house. The search took only ten minutes. During the course of the search appellant’s mother got into an argument with the police over the money that they discovered. Furthermore, it is not clear whether appellant and his mother were left alone in the living room or whether the police stayed in the room with them. The majority’s assumption that advice could pass freely from mother to son is not warranted. The record, as pointed out by the majority in footnote 4, does not show whether or not po*617lice were in the living room with appellant and his mother during the ten minute duration of the search.
It is now axiomatic that the prosecution has the burden of proving that an alleged waiver of constitutional rights is knowing and intelligent. Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975); Commonwealth v. Ewell, 456 Pa. 589, 319 A.2d 153 (1974). In my opinion the prosecution did not show that the appellant was given the opportunity to consult with his mother at the time that he was arrested, as required by Smith, supra. After he was informed of his rights, he was in his mother’s presence for only ten minutes and for at least part of that time his mother was embroiled in an argument with the police over ownership of the money. Moreover, the prosecution did not show that appellant and his mother were left alone during this ten minute period. Under these circumstances I cannot conclude that appellant had meaningfully consulted with his mother.
Additionally, police gave no indication to either appellant or his mother that they were going to question him at that time. It appears that their only interest was incarcerating appellant and searching the house for evidence. When the police finally did decide to question appellant, his mother was not present with him, although she was present in the police administration building. As we stated in Commonwealth v. Webster, supra, 466 Pa. at 326, 353 A.2d at 378,
“. . . police officials must make a reasonable effort to provide an opportunity for the youthful accused to confer with and receive the benefit of counsel or an interested and informed adult [’s] guidance before permitting him to elect to waive these important constitutional rights.”
Accordingly, I would reverse the judgment of sentence and remand for proceedings consistent with this opinion.
ROBERTS, J., joins in this dissenting opinion.