In Interest of NL

Dissenting Opinion by

OLSZEWSKI, J.

OLSZEWSKI, Judge, dissenting:

While the expression of the majority view provides a persuasive analysis and sound rationale, I am obliged to differ and respectfully dissent.

Initially, I disagree with the majority’s application of our standard of review. Whether a Miranda waiver is knowing and intelligent is not a mere factual finding, but rather a mixed question of fact and law. We need not defer to the trial court’s resolution of such matters. Courts in this Commonwealth consistently treat similar issues as questions of law. See Commonwealth v. Whitehead, 427 Pa.Super. 362 , 629 A.2d 142, 145 (1993) (treating the finding that the defendant was in custody requiring Miranda warning as a question of law upon review); Commonwealth v. Daniels, 406 Pa.Super. 112 , 593 A.2d 895 , 896 n. 3 (1991) (“trial court’s conclusion that [defendant] ‘acquiesced’ rather than ‘consented’ [to a search] is not a factual finding by which we are bound, but is a legal conclusion drawn from the findings of fact”). Also, federal courts apply plenary review to the analogous question of the voluntariness of a Miranda waiver. See, e.g., U.S. v. Cruz, 910 F.2d 1072, 1079 (3d Cir.1990); U.S. v. Yunis, 859 F.2d 953, 958 (D.C.Cir.1988) (trial court decision whether a waiver of fifth and sixth amendment rights is voluntary, knowing, and intelligent is reviewed de novo). More importantly, our Supreme Court has recently held, “[w]hether a confession is voluntary is a conclusion of law, and conclusions of law are subject to plenary review.” Commonwealth v. Nester, — Pa. -, 709 A.2d 879, 881 (1998) (citations omitted). Therefore, our current task is to ensure the record supports the suppression court’s findings of historical fact, and then decide whether these facts amount to a knowing and intelligent Miranda waiver as a matter of law.

The record supports the following factual findings. At the time of the waiver, appellant was a fourteen-year-old boy with no previous experience with the police. Appellant exhibited some confusion when the police read him his Miranda rights. Before waiving his rights, appellant did not consult with an interested adult. Appellant is an intelligent juvenile who feels remorse for his conduct.

Next we must determine whether these facts amount to a knowing and intelligent waiver under the law. As stated by the majority, whether a juvenile confession is knowing and voluntary depends upon the totality of circumstances. See Commonwealth v. Williams, 504 Pa. 511, 521 , 475 A.2d 1283, 1288 (1984). Among the circumstances that must be considered are the juvenile’s age, experience, comprehension and the presence or absence of an interested adult. Id.

When applying this test, I differ with the majority’s conclusion that after Williams the absence of an interested adult is no longer a significant factor. Williams states that there is no analytical difference between the prior rebuttable presumption that an uncoun-seled waiver is invalid and that the Commonwealth has the burden of proving the validity of such a waiver. Id. In other words, the law before and after Williams is identical except for the terminology used. Accordingly, as consultation was an important factor before Williams , so it remains today.

This brings me to a fundamental disagreement I have with the majority and the trial court. Both emphasize that appellant’s stepmother granted the police permission to interrogate appellant. The controlling question before us, however, is whether appellant *524 knowingly and intelligently waived his Miranda rights. While I agree that a stepmother may qualify as an interested adult, the fact that she consented to appellant’s interrogation without first consulting him is irrelevant to the determination of a knowing waiver by appellant. The. caselaw clearly considers the opportunity of the interested adult to consult with appellant before waiver occurs, not whether the adult agreed to interrogation. See, e.g., In the Interest of Pack, 420 Pa.Super. 347 , 616 A.2d 1006, 1011 (1992) (defendant consulted mother over phone before waiving Miranda rights); Commonwealth v. Morningwake, 407 Pa.Super. 129 , 596 A.2d 158 (1991) (defendant given opportunity to consult with counselor before waiving Miranda rights). In short, I fail to see how the stepmother’s permission in any way effects the knowing-and-intelligent character of appellant’s waiver.

Because of this misplaced emphasis and the fact that the other Williams factors weigh against valid waiver, I would remand to the trial court. Upon remand, the trial court should consider the proper legal factors in deciding whether appellant understood the consequences of his actions and thereby rendered a knowing and intelligent Miranda waiver.