(dissenting).
I
The Court’s decision today ordering the suppression of appellant’s confession, in my view, confounds all logic. On the one hand, the Court states that “we do not accept the thesis that all confessions of minor offenders elicited without the benefit of counsel, or an adult confidant must necessarily be rejected.” Opinion of the Court, ante at n. 5 [typewritten copy at 11.] 1 2Nonetheless, the sole reason for the Court’s determination that appellant’s waiver of his constitutional rights was not knowing and intelligent is the fact that appellant’s mother was not advised of her son’s constitutional rights prior to conferring with him before his interrogation. This ill-conceived per se rule was first promulgated by the Court in Commonwealth v. Starkes, 461 Pa. 178, 385 A.2d 698.2 It is, in my opinion, totally without basis in law or logic.
The constitutional rights of a juvenile, like those of any other person, are personal to the individual. Only *330he may waive those rights, not his parents or any other adult. If this is so, then it is clear that even had appellant’s mother been advised of her son’s constitutional rights and subsequently advised him not to waive them, this fact alone would not necessarily preclude this Court from finding that appellant’s waiver of those rights was voluntary under the traditional totality of circumstances test for voluntariness.3 Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968). See Commonwealth v. Davis, 455 Pa. 142, 314 A.2d 313 (1974); Commonwealth v. Porter, 449 Pa. 153, 295 A.2d 311 (1972); Commonwealth v. Moses, 446 Pa. 350, 287 A.2d 131 (1971); 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) for the application of that test to confessions by juvenile defendants. The trial court applied that test in this case, and properly, in my view, found no merit to the claim that appellant’s waiver of rights and confession were involuntary.
At the time of Darryl Webster’s interrogation by the police for his part in the killing of Mary Ampio, he was 16 years of age, in the tenth grade and apparently of at least average intelligence. There is no indication in the record that he did not fully appreciate his rights and understand what he was doing when he confessed. Upon being advised of his rights as required by Miranda v. Arizona 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and being told of his suspected involvement in the firebombing, he replied, as the majority records, “If the other boys are going to talk, I better get my side in also. Because they are not going to put everything on me.” Opinion ante at 378. There is no uncontradicted evi*331dence of coercion of Webster by the police or any evidence of police brutality, either direct or psychological in nature. In my mind, it is clear that appellant’s confession was motivated by the knowledge that an accomplice had implicated him in the firebombing and that his confession was his free and voluntary act.
II
Another reason compels my dissent in this case. Assuming that the Court is merely following the precedent established in Commonwealth v. Starkes, 461 Pa. 178, 335 A.2d 698, I see no reason why this appellant should receive the benefit of our decision there. Following his conviction in September 1969, Webster took no appeal. On January 15, 1973, he filed a petition under the Post-Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. (Supp. 1975-76), claiming, inter alia, that he had been denied his rights relative to appeal. The PCHA hearing court determined that in fact this was the case, and he was therefore enabled to take an appeal as if timely filed. This appeal followed. In Commonwealth v. Faison, 437 Pa. 432, 264 A. 394 (1970), this Court laid down what I believe to be the proper test for determining whether an appellant on a nunc pro tunc appeal may raise an issue which is premised on a constitutional right announced subsequent to his judgment of sentence. We held that such an issue may be raised “provided that this right has been given such retroactive effect that it would have been available to appellant had an appeal been timely filed.” 437 Pa. at 441, 264 A.2d at 399. Any other result would, as here, give such appellants an unfair windfall. The unfairness of granting appellant relief based on Starkes is made clear when it is considered that in Commonwealth v. Moses, 446 Pa. 350, 287 A.2d 131 (1971), we denied relief to a co-defendant of Webster’s *332who took a timely appeal. I believe that appellant’s waiver of his rights and the voluntariness of his confession must be gauged by pre-Starkes law; and under that law I would find both voluntary.
For the aforementioned reasons, I dissent.
. Indeed, if that were the Court’s rule, no reversal would be required herein since Darryl Webster had full opportunity to consult with his mother prior to confessing.
. Mr. Justice Eagen wrote a dissenting opinion in Starkes, which was joined by Mr. Chief Justice Jones and this writer. 461 Pa., supra, at 190-191, 335 A.2d at 703, 704.
. There is no doubt that in the case of a juvenile special care must be taken to insure that any waiver of rights and any confession is truly voluntary. Furthermore, it is possible to conceive of situations where a youth may be so young or immature or mentally retarded that he might be incapable, as a matter of fact, of waiving his rights without adult assistance.