dissenting opinion of Pomeroy, J., joined by Eagen, C. J.
How later courts described this case
- dissenting opinion of Pomeroy, J., joined by Eagen, C. J.
Written by the judges who cited it.
The opinion
NIX, Justice,
dissenting.
In n. 2 the majority attempts to explain why the issue of effective juvenile waiver has been preserved for our review in this proceeding. Concluding that a general challenge to the knowing, intelligent and voluntary nature of the election by the minor to forego his constitutional rights preserves this issue, the majority proceeds to grant relief on the grounds that this juvenile did not receive the benefit of consultation with a concerned interested and informed parent or other adult. I disagree because this latter claim was clearly waived.
Trial counsel should have been aware at the time of the suppression hearing of this Court’s ruling in Commonwealth v. Roane, 459 Pa. 389 , 329 A.2d 286 (1974). Therein we said,
An important factor in establishing that a juvenile’s waiver of his constitutional rights was a knowing and intelligent one would be evidence that, before he made his decision to waive those rights, he had access to the advice of a parent, attorney, or other adult who was primarily interested in his welfare. Id. 459 Pa. at 394 , 329 A.2d at 288 .
Even though this Court in that decision did not expressly adopt a per se rule, 1 we nevertheless pointed to the particu *548 lar significance of the minority of an accused in assessing the effectiveness of the waiver of a youthful offender. Therefore, since appellant’s trial counsel attacked the confession on the general ground of voluntariness and knowledgeableness, and failed to focus upon his immaturity in assessing the waiver’s effectiveness as suggested in Roane , the latter issue is not preserved for appeal. 2 Commonwealth v. Branham, 467 Pa. 605 , 359 A.2d 766 (1976); Commonwealth v. Gilmore, 464 Pa. 464 , 347 A.2d 305 (1975); Commonwealth v. Mitchell, 464 Pa. 117 , 346 A.2d 48 (1975).
In recognizing the vulnerability of his first argument attacking the validity of appellant’s waiver of his Miranda rights, appellant’s counsel in his brief alternatively argues that trial counsel was ineffective for failing to raise the Roane issue. The latter argument presents a more viable issue and should have been addressed by this Court.
. Concerning whether the confession was valid, the trial court’s opinion indicates the major emphasis for exclusion was on intoxication rather than immaturity.