Petition — Pennsylvania v. McCutchen

ee .

DEC 15 197s

Preme Court, U. &

o. FILEp |

In The | _MICHAEL RODAK, jp, Cem

SUPREME COURT OF THE: UNITED STATES

OCTOBER TERM, 1975

wo. 15° 845 1

COMMONWEALTH OF PENNSYLVANIA,

Petitioner

Vv.

FREDDY McCUTCHEN,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO

THE SUPREME COURT OF PENNSYLVANIA

BONNIE BRIGANCE LEADBETTER

Assistant District Attorney

STEVEN H. GOLDBLATT

Assistant District Attorney

Chief, Appeals Division

ABRAHAM J. GAFNI

Deputy District Attorney for Law

F. EMMETT FITZPATRICK

District Attorney

2300 Center Square West

Philadelphia, Pa. 19102

INDEX

PAGE

Opinion BeloOw...ccccccccccccvces 1

JUFISGICtlON. cccccccccccescscsess 2

Question Presented. .cccccccccces 2

Constitutional Provisions Involved 3

Statement of the CaSe@....cccceee 4-10

Reasons for Granting the Writ 11-12

Rs The Pennsylvania Supreme

Court Has Misconstrued

The Federal Constitution

And Misinterpreted Deci-

sions of this Court... 12-22

+ The Decision Below Is In

Conflict With Decisions of

Numerous Federal Courts

and Other State Supreme

COUCH co cccocececesseeer 22-25

IIl. The Decision Below Poses

Serious Problems to the

Orderly Administration of

FTUBCEASHc ccocccsceceeseses 25-27

oe ere: ea 28

Appendix A: Opinion of the Court Below 30-32

Appendix B: Unreported Opinion,

Co

mmonwealth v. Chaney, __ Pa. ’

A.2a (entered November 26, 33-36

975)

TABLE OF CITATIONS

FEDERAL COURT CASES Page

Cotton v. United States, 446 F.2d

107 (8th Cir. 1971) 22

Culombe v. Connecticut, 367 U.S.

568 (1961) 14,18,20,23

Gallegos v. Colorado, 370 U.S.

49 (1962) 2,12,14,18,20,23

Glinsey v. Parker, 491 F.2d 337

(6th Cir. 1974), cert. denied,

417 U.S. 921 22

Haley v. Ohio, 332 U.S. 596

(1948) 2,14,18,20,23

In Re Gault, 387 U.S. 1

Michaud v. Robbins, 424 F.2d

971 (lst Cir. 1970) 23

Mikarewicz v. Scafati, 438 F.2d

474 (lst Cir. 1971), cert.

denied, 402 U.S. 980 23

Miranda v. Arizona, 384 U.S.

436 (1966) 2,11,14,19,20,23

Schneckloth v. Bustamonte,

412 U.S. 218 (1973) 18,19

United States v. Miller,

453 F.2d 634 (4th Cir. 1972),

cert. denied, 406 U.S. 923. 22

United States ex rel. Brown v.

Rundle, 450 F.2d 517

(3d Cir. 1971) 24

Table of Citations - Continued

United States ex rel. Burgos

v. Follette, 448 F.2d 130

(2d Cir. 1971), cert. denied,

406 U.S. 950 (1972) © 23

United States ex rel. Hayward v.

Johnson, 508 F.2d 322 (3d Cir.

1975), cert. denied, U.S.

___ (June 16, 1975) 22

United States ex rel. Loray v.

Yeager, 446 F.2d 1360

(3d Cir. 1971) 24

United States ex rel. McMath v.

Pate, 435 F.2d 174 (7th Cir.

1970) 24

United States ex rel. Richardson

v. Vitek, 395 F.2d 478 (7th Cir.

1968) 24

West v. United States, 399 F.2d

467 (Sth Cir. 1968), cert.

denied, 393 U.S. 1102 (1969) 22

STATE COURT CASES

Commonwealth v. Chaney, Pa. ’

A.2d_ (Nov. 26,

1975)

17718,25

Commonwealth v. McCutchen,

Pa. , 343 A.2d 669 (1975) 1,4,11

Commonwealth v. Moses, 446 Pa. 350,

287 A.2da 131 (1971) 25

LBaAWATS WL Ne eS &e OSE OHNE HE

Table of Citations - Continued

Page

Commonwealth v. Riggs, ———

A.2d (Oct. 30, 1975) 15,16,17,25

Commonwealth v. Roane, Pa. 9

329 A.2d 286 (1974) 11,12,13,20

Commonwealth v. Starkes,

Pa. , 335 A.2d 698

(1975) 11,13,14,15,23

Commonwealth v. Webster,

Pa. P A.2d

(Oct. 3, 1975) 15

McLeod v. State, 229 So.2d 577,

(Miss. 1969) 23

People v. Lara, 62 Cal.Rptr. 586,

432 P.2d 202 (1967) 23

People v. Stephen J.B., 23 N.Y.2d

6il, 246 N.E. 2d 344 (1969) 23

State v. Dawson, 278 N.C. 35l,

180 S.E.2d 140 (1971) 23

State v. Hogan, 297 Minn.430,

212 N.W.2d 664 (1973) 23

State v. Rone, 515 S.W.2d 438

(Mo. 1974) 23

State v. Sylvester, 298 So.2d 807

(La. 1974) 23

Theriault v. State, 66 Wis.2d 33,

223 N.W.2d 850 (1974) 23

Vaughn v. State, 3 Tenn.Ct.App.

54, 456 S.W.2d 879 (1970) 23

In The

SUPREME COURT OF THE UNITED STATES

OCOTOBER TERM, 1975

No.

COMMONWEALTH OF PENNSYLVANIA

Petitioner,

“Ve

FREDDY McCUTCHEN,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO

THE SUPREME COURT OF PENNSYLVANIA

The Petitioner, Commonwealth of

Pennsylvania respectfully prays that

a writ of certiorari issue to review

the judgment and opinion of the Penn-

svlvania Supreme Court entered in the

above-entitled case on July 7, 1975.

OPINION BFLOW

The opinion helow of the Penn-

Sylvania Supreme Court is unoffi-

cially reported as of 343 A.2d 669

(1975), and is set out as Appendix

A. (The official report of this

case has not yet been published.)

a

JURISDICTION

The order of the Pennsylvania

Supreme Court was entered on July 7,

1975. A timely petition for rehearing

was filed by petitioner and was denied

On September 16, 1975. This petition

for certiorari was filed within ninety

days of that denial. This Court's

jurisdiction is invoked under 28 U.S.7

§1254(1).

QUESTION PRESENTED

Do the holdings of this Court

in Miranda v. Arizona, 384 U.S. 436

(1966); In Re Gault, 387 U.S. 1 (1967);

Haley v. Ohio, 332 U.S. 596 (1948);

and Gallegos v. Colorado, 370 U.S.

49 (1962), mandate a per se rule ex-

cluding from evidence any confession

aqiven by a juvenile suspect whenever

that suspect has waived his Consti-

tutional rights, absent consultation

with a parent or other interested adult

who himself has first been advised

of the juvenile's rights; or, is such

a prophylactic rule mandated by the

fifth and/or fourteenth amendments

to the United States Constitution?

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution,

Amendment Fourteen, Section One.

All persons born or naturalized

in the United States, and subject to

the jurisdiction thereof, are citizens

of the United States and of the State

wherein they reside. No State shall

make or enforce any law which shall

abridge the privilege or immunities

of citizens of the United States; nor

shall any State deprive any person

of life, liberty, or property, without

due process of law; nor deny to any

person within its jurisdiction the

equal protection of the laws.

United States Constitution,

Amendment Five - Capital Crimes;

Double Jeopardy; Self-Incrimina-

tion; Due Process; Just Compensa-

tion for Property

No person shall be held to answer

r a capital, or otherwise infamous

ime, unless on a presentment or in-

ctment of a Grand Jury, except in

cases arising in the land or naval

Orces, or in the Militia, when in

ctual service in time of War or public

danger; nor shall any person be subject

f the same offense to be twice put

in jeopardy of life or limb; nor shall

be compelled in any criminal case to

be a witness against himself, nor be

deprived of life, liberty, or property,

without due process of law; nor shall

private property be taken for public

use, without just compensation.

STATEMENT OF THE CASEI

Procedural History

Respondent, Freddy McCutchen,

was indicted on charges of murder and

sodomy at No. 159-160, July Term, 1971,

Court of Common Pleas of Philadelphia

County. Prior to trial, by his at-

torney, he orally moved to suppress

his confession to the crimes, and a

hearing was held before the Honorable

Victor J. DiNubile on June 6 and 7,

1972. At the conclusion of the hear-

ing, McCutchen's motion was denied.

The case was then called for trial

before the Honorable James T.

McDermott and a jury on October 2,

1972, and verdicts of quiltv of murder

in the first degree and sodomy were

returned on October 6. Thereafter,

post trial motions were heard, and

denied by the trial court on September

17, 1973. Consecutive sentences of

imprisonment for life and ten to twenty

years were imposed on October 3, 1973.

A direct appeal was taken to the

Supreme Court of Pennsylvania, which

reversed the conviction in an opinion

issued on July 7, 1975. Commonwealth

v. McCutchen, Pa. , 343 A.2d 669

(1975). (Appendix A). Two justices

dissented and the Chief Justice did

not participate in the decision. A

petition for reargument was filed

by the Commonwealth on July 14, 1975.

This petition was denied on September

16, 1975.

Facts

McCutchen's conviction arose out

of the wanton killing of six year old

boy, Wilfredo Martinez. The body was

found by Philadelphia police at 10:30

p.m. June 7, 1971, alongside a railroad

Siding at the top of an embankment

behind a factory (N.T. Trial 391).

The body was still warm, and was

covered with moist blood (N.T. "rial

311). An autopsy was conducted by

Dr. Robert L. Catherman; the cause

of death was “massive destruction"

to the head and brain resulting from

a beating with a blunt instrument,

which caused many compound and simple

fractures of the skull, extensive

lacerations, bruising, hemorrhaging

and damage to the brain tissues. The

right side of the face from the temple

to the jaw, the left side of the face

around the eye, the mouth and the area

above the right ear were most severly

injured; the facial and skull bones

in those areas were literally frag-

mented, and many teeth were dislodged.

In addition, internal injuries to the

abdomen and the organs in that area

had occurred, and the knees were

Scratched and bruised. The doctor

also found that Wilfredo had been

buagered: lacerations and bruises

lrestimony presented at trial will be

cited herein as N.T. Trial. Testi-

mony at the Suppression Hearing will

be cited N.T. Supp. Hrg.

were found in the rectum and anus,

and sperm was found to be present (N.

T. Trial 340-366). When McCutchen was

questioned the following evening, June

8, 1971, he confessed to the crime.

He said that he had encountered the

little boy crying on the street and

beqan walking with him. He took him

up to the tracks, spread out his (Mc-

Cutchen's) jacket on the ground, told

him to take down his pants, and buggered

him. The little boy began screaming,

so McCutchen hit him with a branch from

a tree several times to make him stop.

Later, he threw away his jacket because

it was dirty (N.T. Trial 524-38).

MeCutchen's confession was verified

by the recovery of his blood and semen

stained jacket (which he identified)

(I.7. Trial 443-45), and the hlood

stained branch (N.T. Trial 445-47),

and by the discovery of his comb near

the body (N.T. Trial 369). In addition,

it was testified that McCutchen had

been seen on the street with Wilfredo

before his death (N.T. Trial 385-86).

McCutchen was first contacted by

police about 6:30 p.m., June 8. He

immediately confirmed what the police

had been informed, that he had dis-

covered the body, and agreed to help

in the investigation by going to the

Police Administration Building. Before

being driven there, he was given Miranda

warnings and unequivovally stated that

he understood them and was willing

to talk to police without an attorney.

3

When he arrived at the Police Admin-

istration Building about 7:15 p.m.,

these warnings were reiterated, and

McCutchen was interviewed over a two

hour period until 9:25 p.m., during

which he related that he had found

the body after purportedly seeing an

older man fleeing from the spot. Not

all this period was devoted to question-

ing, because police were checking the

information “MeCutchen was giving them

(1.T. Supp. Hrg. 133). Eventually

McCutchen suggested taking a polygraph

test concerning his story; he told

the police he had taken one on a pre-

vious occasion when he was apparently

questioned in connection with a dif-

ferent homicide (N.T. Supp. Hrg. 5l,

132-36). The test was arranged, and

he was taken to the polygraph unit

at 10:90 p.m. Beginning at ahout 10:30

p.m., the examiner conducted a pre-test

interview concerning McCutchen's per-

sonal history and physical condition,

formulated the questions to be asked

and explained the test procedure.

The test itself was conducted at about

11:45 p.m. (N.T. Supp. Hrg. 107); when

it was completed the examiner told

McCutchen the results (N.T. Supp. Hrg.

117), whereupon he changed his story

and admitted killing Wilfredo (N.T.

Supp. Hrg. 12). A detective again

warned McCutchen of his rights at

11:55 p.m., and wrote out his confession

in longhand (N.T. Supp. Hrg. 142);

this was completed and the statement

signed by McCutchen at 1:10 a.m. (N.T.

Supp. Hrg. 148-149).

Earlier, prior to the polygraph

test, or any admission, at about 11:30

p.m., a detective had gone to McCut-

chen's home to find his mother, after

an earlier unsuccessful attempt to

contact her by phone (N.T. Supp. Hrg.

52-54); at no time had McCutchen re-

quested that anyone be contacted, but

police determined that this should

be done because of his age: He had

told them that he was sixteen (N.T.

Supp. Hrq. 46).° His mother arrived

at about 1:00 a.m. (N.T. Supp. Hrg.

58); shortly thereafter, she was fully

apprised of the situation by police

and taken to see her son (N.T. Supp.

Hrg. 151-52). Subsequently, beginning

at 2:19 a.m. in the presence of his

mother, McCutchen was again warned

of his rights and repeated his con-

fession, which was recorded in type-

written form, and then signed by him

and his mother. The mother sat in the

doorway to the room where she could

see and hear. Apparently, when ap-

pellant admitted to her that he had

committed the crime, she was extremely

angered at him; he had been a trouble-

some son in the past (N.T. Supp. Hrg.

368-69). After she had talked to

respondent, she told police she did

not wish to remain, but they persuaded

2McCutchen gave his date of birth as

February 2, 1955. Later, police

learned from his mother that he was

iS.

her to do so; however she insisted

on remaining outside the open doorway

(N.T. Suop. Hrg. 208-09, 375-77).

She testified that from previous ex-

perience she knew appellant had a

right to an attorney at this point,

but apparently she had no concern that

he have one (N.T. Supp. Hrg. 387-90).

Later, after the mother had re-

turned to her home, police contacted

her by phone and received her consent

to tale a supplemental statement from

McCutchen for the purpose of identifying

certain items (N.T. Supp. Hrg. 216-24);

however, neither these items nor the

supplemental statement was ever utilized

as evidence.

While McCutchen was but fifteen

at the time, he was extensively ex-

perienced with the criminal law. He

had been arrested sixteen times pre-

viously (N.T. Supp. Hrg. 100). He

himself testified that he had been

questioned by police on many previous

Occasions, one as recently as a week

before, that he had served time at

Glen Mills, that he had been represented

by appointed attorneys, and that he

was thoroughly aware of his rights

from previous experiences (N.T. Supp.

Hrg. 292-99, 314). His mother was

Similarly aware of his rights (N.T.

Supp. Hrq. 387-88). In fact, as men-

tioned above, McCutchen had previously

been questioned in connection with

10

a homicide, for which he was apparent-

ly exculpated, and had taken a poly-

graph test on that occasion. Coupled

with the scrupulous warnings of rights

he was given in this case, these factors

leave no doubt that McCutchen was

meaninagfullv aware of his rights.

Furthermore, in view of his experi-

ence, it is clear that this particu-

lar suspect would not likely be over-

whelmed by being questioned by police

officers, despite his age, especially

Since the questioning was not initially

directed to establishing his guilt

but rather to his pretended role as

an important witness. He was not

questioned at length or treated with

hostility and he willingly ccoperated

with police. Indeed, the polygraph

test which ultimately prompted Mc-

Cutchen's confession was his own idea.

In his defense, McCutchen testified

that he had not killed the little boy,

although he admitted he had been with

tim earlier (N.T. Trial 564-65); he

Said that he had "found" the body lying

near the railroad tracks, that his

jacket got bloody when he touched it,

and that he had thrown the jacket away

for this reason (N.T. Trial 566-67).

He claimed he signed his confession

because he was beaten by police, and

that he had not been warned of his

rights (N.T. Trial 575-78). Obviously,

the jury did not accept this version

of events.

ll

REASONS FOR ALLOWING THLE WRIT

INTRODUCTION

Preliminarily, it should be noted

that the opinion below, standing alone,

can best be characterized as obscure.

Neither the Constitutional underpinnings

of the holding nor the exact scope

and nature of the holding can be dis-

cerned from examination of the McCutchen

text. However, reading the opinion

in the context of the earlier cases

upon which the McCutchen majority relies

and the cases following in McCutchen's

wake, three things become clear: the

holding in McCutchen is squarely ground-

ed on the United States Constitution;

the holding establishes a per se

rule excluding all confessions by

juveniles unless a parent is present

and has himself been given Miranda?

warninos; and the holding will be

retroactively applied to all cases

coming before the Pennsylvania Supreme

Court on direct review, regardless

of the date of the confession or of

the trial. This holding is an erroneous

application of federal Constitutional

principles and decisions of this Court,

and is in conflict with interpretation

of the same principles and decisions

by other courts of parallel jurisdiction.

Moreover, the application of this pro-

pDhylactic exclusionary rule to all

3Miranda v. Arizona, 384 U.S. 436 (1966)

cases coming before that court on direct

review will have serious adverse effects

on the orderly administration of jus-

tice.

I. THE PENNSYLVANIA SUPREME

COURT HAS MISCONSTRUED THE

UNITED STATES CONSTITUTION

AND MISINTERPRETED DECISIONS

OF THIS COURT.

The holding below is as follows:

[I]t is clear that prior

to appellant [sic] giving

his first confession, which

was in essence the same as

his later formal confession,

appellant, age fifteen, was

not given the opportunity

to consult his mother be-

fore he waived his rights,

an opportunity, in our

Opinion, mandated by our

Roane decision.

343 A.2a at 670.4

The court also relies upon its

prior holding in Commonwealth v.

Starkes, Pa. , 335 A.2da 698 (1975).

Examination of Starkes and Roane5

makes clear the Constitutional under-

pinnings of the rule.

4where, as here, the official report

has not yet been published, all cita-

tions will be to the Atlantic Reporter.

Commonwealth v. Roane, __—Pa. _, 329

A.2d 286 (1974).

12

13

In Roane, a sixteen year old murder

suspect was arrested at his home. His

mother informed police at the time

that she would follow them to the

station. Approximately one hour after

her arrival, she requested to speak

with her son, which request was denied.

In the meantime, Roane had been given

his Miranda warnings, acknowledged

his understanding of them, and agreed

to speak with police. He orally con-

fessed to the murder. Approximately

one hour after the first request, Mrs.

Roane again asked to see her son, and

this time was allowed to do so. After

they had spoken for a short time, an

officer entered the room and began

reiterating Miranda warnings in pre-

paration for the taking of a formal

written statement. At this time, the

mother told the officers that she

intended to obtain an attorney and

she did not want any statement taken.

Nonetheless, Roane again waived his

rights and gave and signed the formal

statement. Mrs. Roane refused to sign

aS a Witness.

The court reversed Roane's murder

conviction, relying on In Re Gault,

387 U.S. 1 (1967) and Gallegos v.

Colorado, 370 U.S. 49 cL Al-

thous, tacitly clinging to a totality

of the circumstances rule in determining

whether the waiver of rights was vol-

untary and intelligent, the court held:

14

In order to support a

finding that Daryl's

waiver of his rights was

knowing and intelligent,

we believe that the record

must indicate that Mrs.

Roane had an opportunity

to give Daryl the kind of

helpful advice discussed

in Gallegos, supra.

329 A.2d at 289.

In Starkes, a fourteen year old

was arrested at his home for murder.

His mother refused the offer of the

police that she accompany her son to

the Police Administration Building.

Upon arrival there, Starkes was given

Miranda warnings, acknowledged his

understanding of his rights, and agreed

to give a statement. He denied all

knowledge or involvement in the crime.

Later, his mother arrived and was taken

to Starkes, where the two remained

alone for a "pretty good while." Dur-

ing this period, the mother encouraged

her son to tell the truth. After his

conference, police again began to

question Starkes and he confessed to

the murder. In his mother's presence,

ne waS again given Miranda warnings,

and gave a formal typewritten state-

ment.

15

Relying on Culombe v. Connecticut,

367 U.S. 568 (1961); Gallegos v. Colo-

rado, supra; Haley v. Ohio, 332 U.S. 596

(1948); and Miranda v. Arizona, supra,

the Pennsylvania Supreme Court reversed,

holding:

Where a parent is present

we must at least require

that parent to be advised

of the rights possessed

by the minor suspect be-

for that parent may be per-

mitted to influence the

decision which the minor

must make. Whether the

pressure to respond to

police questioning flows

from the overzealousness

of the police or the un-

advised entreaties of a

well--intentioned parent,

the result is equally

offensive to our concept

of due process and

frustrates the protec-

tion sought to be pro-

vided by our Constitu-

tion.

* * * * *

[T]he Commonwealth has

failed to establish that

the decision of the appel-

lant to respond to police

questioning was not

substantially influ-

enced by the unin-

formed entreaties of

the mother. In view

of her lack of aware-

ness as to appellant's

rights, it cannot be

said that the choice

was a knowing and

intelligent one.

335 A.2d at 703.

As noted above, the court below

clung for a time to the fiction that

it had announced no per se rule but

was simply applying a totality of the

circumstances test to determine whether

a Miranda waiver was voluntary and

intelligent. See, e.g., Commonwealth

v. Webster, _ Pa. __, A.2d

(October 3, 1975), and the dissenting

opinion of Mr. Justice Pomeroy. None-

theless, a rapid succession of juvenile

confession cases has finally eroded even

lipservice to the former standard.

In Commonwealth v. Riggs, Pa. ’

A.2d (October 30, 1975), the

(majority of the) court issued an o-

pinion which read, in its entirety:

PER CURIAM 10-30-75

Appellant was con-

victed of murder in the

first degree, aggravated

16

robbery and burglary

stemming from the

robbery and death by

beating of one Isa-

dore Selez on May 6,

1970. He was sen-

tenced to life im-

prisonment on the

murder charge and a

concurrent 5 to 15

year term of im-

prisonment for

aggravated robbery.

Sentence was sus-

pended on the burg-

lary conviction.

At the time of the

offense and his arrest

appellant was 15

years of age. He

made no oral confes-

sion to the police

before being granted

the benefit of coun-

sel or parental or

informed interested-

adult guidance. A

motion to suppress

the statement was made

pre-trial and was

denied; the statement

was admitted into

evidence at trial.

We held recently in

Commonwealth v. Mc-

Cutchen, Pa. ‘

A.2d (1975) that

a waiver of Miranda

17

rights obtained under

such circumstances is

involuntary. It follows

that appellant's con-

viction must be reversed.

Judgments of sentence

reversed and new trial

is ordered.

[In Commonwealth v. Chaney, __ Pa. ’

_A.2d__ November 26, 1975), (set out

as Appendix B) the court held:

[Slince the taking of

appellant's appeal in

this case, this court

has in Commonwealth v.

McCutchen, wae _ 4

— Rese (5978),

Commonwealth v. Starkes,

Fase 4 A.2d

(1975) and Commonwealth

v. Roane, . Pa. een

A.2d (1975), held that

absent a showing that a

juvenile had an opportunity

to consult with an inter-

ested and informed parent

or adult or counsel before

he waived his Miranda rights,

his waiver will be inef-

fectual.

At p. 34 herein.

18

19

Or, as Mr. Justice Pomeroy notes in

dissent,

As the majority opin-

ion notes, this Court

has recently created

a per se rule requiring

reversal whenever a ju-

venile has waived his

constitutional rights,

see Miranda v. Arizona,

384 U.S. 436, 16 L. Ed.

2a 694 (1966), without

the opportunity to con-

sult with a parent or

other interested adult,

who himself has first

been advised of the

juvenile's constitution-

al rights.

-

At p. 35 herein.

It is clear beyond question that

this Court's decisions in Miranda,

Gallegos, Haley, Culombe, and Gault

do not mandate any such per se

2xclusionary rule. In Schneckloth

v. Bustamonte, 412 U.S. 218 (1973),

this Court commented upon such cases

as Haley, Gallegos, and Culombe, noting:

The significant fact

about all of these de-

cisions is that none of

them turned on the

presence or absence

of a single control-

ling criterion; each

reflected a careful

scrutiny of all the

Surrounding circum-

stances.

3. at 226. (Citations omitted).

While Miranda did, indeed, set down

prophylactic requirements, it is uncon-

tested that those mandates were fully

complied with by the police in the in-

Stant case. McCutchen was given

“Miranda warnings prior to any question-

ina. He acknowledged his understanding

»f his rights and exhibited a willing-

ness to cooperate with the police in

their investigation. He then gave a

fabricated statement in which he

‘aimed to have found the body after

seeing an older man running from the

‘cene. After police efforts to identify

this man failed to turn up any corrobor-

tion for the existence of such a

person, McCutchen suggested to police

that they give him a polygraph test.

After he failed the test, he confessed

to the murder. McCutchen was treated

well by the police, given warnings which

ne apparently fully understood, and

spoke to the police freely. He was

thoroughly conversant with police pro-

cedures, having been arrested sixteen

20

—

;

times before, and once before questioned

concerning a homicide. Indeed, he felt

so sure of himself as to suggest proce-

dures to the police. Under all these

circumstances, his confession was clear-

ly voluntary under Gallegos, Hale

and Columbe, and his waiver of rights

valid under the guidelines of Miranda.

In Re Gault, the remaining case

relied upon py the court below, is simp-

ly inapposite. Therein, this Court ex-

plicitly stated:

We do not in this opin-

ion, consider the impact

of these constitutional

provisions upon the

totality of the rela-

tionship of the juvenile

and the state. . .[WJe

are not here concerned

with the procedures or

constitutional rights

applicable to the pre-

judicial stages of the

juvenile process.

387 U.S. at 13.

Even the dicta from Gault cited by

she court below in Roane, supra, falls

short of sustaining the per se re-

versal rule effectuated by the court be-

low. This Court simply stated that ju-

veniles have the same constitutional

privilege against self-incrimination as

adults and that:

fa

~

<r

21

em —

If counsel was not

present for some per-

missible reason when

an admission was ob-

tained, the greatest

care must be taken to

assure that the admis-

sion was voluntary, in

the sense not only that

it was not coerced or

suggested, but also that

it was not the product

of ignorance of rights

or of adolescent fan-

tasy, fright or despair.

Uewe = 55.

The circumstances of the instant

sonfession could hardly be further

from the product of “adolescent fanta-

sy, fright or despair.”

-

For the foregoing reasons, it is

respectfully submitted that the Penn-

svivania Supreme Court erred in conclud-

ing that the per se exclusionary rule

_nvoked below was required by the United

States Constitution and the cited de-

sisions of this Court.

Lie THE DECISION BELOW IS

Ini CONPLICT WITH NUM-

EPROUS FPEDERAL AND STATE

SUPREME COURTS.

Wnile che orecise issue aidressed

celow -- che notion of recuiring the

cresencte of a Mirar.daewarned adult for

22

all juvenile waivers -- has seldom been

adverted to in the appellate courts of

other jurisdictions, numerous other

courts have held juvenile Miranda waiv-

ers effective where no parent was pre-

sent.

For instance, in Cotton v. United

States, 446 F.2d 107 (8th Cir. 1971),

the Miranda waiver of a fifteen year old

was upheld even though no parents were

present during questioning. In that

case, the defendant had had only four

years of schooling (he entered the first

qrade at the age of ten) and misspelled

the word "true." The following cases

are in accord, that is, waivers by teen-

aqders without the advice of an informed

adult have been upheld: United States

ex rel. Hayward v. Johnson, 8 F.

322 (3d Cir. 1975), cert. denied, __ U.

Ss, (June 16, 1975) (17 years old; no

parent present); United States v. Mil-

ler, 453 F.2d 634 (4th Cir. 1972),

cert. denied, 496 U.S. 923

(14 years old; no parent present);

West v. United States, 399 F.2d 467

(5th Cir. 1968), cert. denied, 393 U.S.

1102 (1969) (16 years old; no parent

present); Glinsey v. Parker, 491 F.2d

337 (6th Cir. 1974), cert. denied, 417

U.S. 921 (17 vear old; no parent pre-

sent; confession upheld, but convic-

tion reversed on other grounds).

23

24

In the following cases, other state

Supreme courts have upheld Miranda waiv-

ers by juveniles without the advice of

a parent: Theriault v. State, 66 Wis.

24 33, 223 N.W. 2d 850 (1974); People

v. Lara, 62 Cal. Rptr. 586, 432 P.2d

292 (13967); People v. Stephen J.B.,

23 N.Y. 2a 611, 246 N.E. m 344 (1969);

State v. Rone, 515 S.W. 2a 438 (Mo.

1974); McLeod v. State, 229 So. 2d

577 (Miss. (1969); State v. Hogan,

297 Minn. 430, 212 N.W. 2d 664 (1973);

State v. Sylvester, 298 So. 2d 807

(La. 1974); State v. Dawson, 278 N.C.

351, 189 S.E. 2d 140 (1971); Vaughn

v. State, 3 Tenn. Cr. App. 54, 456

S..¥.2d 879 (1979) (review denied by

Tennessee Supreme Court, July 6, 1970.)

Since the court below grounds its

per se rule on the due process clause

as well as on Miranda (see Starkes,

Supra, at 703), relying on Gallegos,

Haley, and Culombe, the holding Below

is also in conflict with many pre-

Miranda cases finding juvenile con-

fFessions voluntary. The following

federal cases have upheld pre-Miranda

confessions by juveniles where no

parent was present: Mikarewicz v.

Scafati, 438 F.2d 474 (lst Cir. 1971),

cert. denied, 402 U.S. 980 (15 year

Old); Michaud v. Robbins, 424 F.2d 971

(lst Cir. 1970) (15 year old illiterate

with mental age of 12); United States

ex rel. Burgos v. Follette, 448 F.2d

139 (2d Cir. 1971), cert. denied,

406 U.S. 950 (1972) (16 year old);

25

United States ex rel. Loray v. Yeager,

446 F.2d 1360 (3d Cir. 570) (l6é year

old); United States ex rel. Brown v.

Rundle, 450 F.2d 517 (3d Cir. 1971)

(16 yeard old); United States ex rel.

Richardson v. Vitek, 395 F.2d 478 (7th

Cir. 1968) (15 year old); United States

ex rel. McMath v. Pate, 435 F.2d 174 (7th

Cir. 1970) (16 year old).

In all of the above-cited jurisdic-

tions, the age of the defendant and the

presence or absence of a parent are al-

ways factors to be weighed in determin-

ing the voluntariness of a confession

and the validity of a Miranda waiver.

Yet all stand in conflict with the per

se exlusionary rule adopted by the court

below.

IIl. THE DECISION BELOW POSES

SERIOUS PROBLEMS TO THE

ORDERLY ADMINISTRATION

OF JUSTICE.

In Commonwealth v. Chaney, supra,

set out at Appendix B, the court below

held the per se reversal rule invoked

below spp lidebte to any case coming

before that court on direct review.

This includes cases such as Commonwealth

v. Webster, supra. Webster was con-

victed of murder in 1969. He took no

appeal. In 1973 he filed a post-con-

viction petition requesting the right

to file a direct appeal nunc pro tunc.

This right was granted. On "direct"

appeal on October 3, 1975, the court

below reversed under McCutchen. (It

is noteworthy that the opinion of the

court below on the timely appeal of

Chaney's co-defendant was, until

McCutchen, the leading Pennsylvania

case on juvenile confessions. There,

the court relied on the totality of

the circumstances test and upheld

the confession. See Commonwealth

v. Moses, 446 Pa. 350, 287 A.2d 131

(1971) .)

Thus the holding below will

operate to overturn virtually all con-

victions involving juvenile confes-

sions6 in cases tried prior to

McCutchen, where a direct appeal has

not yet been decided. In cases where

the confession was given prior to

McCutchen but the case tried after

“McCutchen, the confession will have

been or have to be suppressed. More-

»ver, because of the obscurity of the

Opinion below, there will undoubted-

ly be post-McCutchen interrogations

and trials which fail to comply with

the per se rule. (Only after

Commonwealth v. Riggs, supra, and

Commonwealth v. Chaney, supra, was

the prophylactic nature of the rule

made clear).

S~while in some percentage of cases

parents have consulted with juvenile

suspects, police have almost never given

Miranda warnings to those parents.

26

27

It is difficult to give any accu-

rate estimate of how many cases will

thus be affected, but some glimmering

of the magnitude can be had by refer-

ence to some readily available statistics.

Considering only homicide cases in

Philadelphia County for the years 1973

ind 1974, official records indicate the

tollowing: In 1973, 70 juveniles were

charged with murder; 53 gave statements.

In 1974, 71 juveniles were charged with

murder; 57 gave statements. Of these

119 cases where there were confessions,

only two have been finally decided on

appeal. Of the other 108 all convic-

tions are subject to automatic rever-

sal and untried cases subject to sup-

pression under McCutchen. Adding to

these, the 1975 cases, all pre-1973

cases where no appeal has been finally

decided, all cases involving crimes

other than homicide, and all cases

arising in the other 66 counties in

Pennsylvania, the mind reels at the

prospect of discovering how many

hundreds of cases comprise the total.

Suffice it to say that the adverse

effect of McCutchen's per se reversal

rule on the administration of justice

in Pennsylvania is Overwhelming, and

that this case is of the utmost im-

portance to the Commonwealth.

28

CONCLUSION

For all the foregoing reasons,

the Commonwealth of Pennsylvania re-

spectfully requests that a writ of

certiorari issue to review the de-

cision below.

Respectfully submitted,

BONNIE BRIGANCE LEADBETTER

Assistant District Attorney

STEVEN H. GOLDBLATT

Assistant District Attorney

Chief, Appeals Division

ABRAHAM J. GAFNI

Deputy District Attorney for Law

F. EMMETT FITZPATRICK

District Attorney

29

APPENDICES

Appendix A: Opinion of the Court Below

Appendix B: Unreported Opinion,

Commonwealth v. Chaney, Pa. ,

A.2da (entered November 26,

(1975)

30

COMMONWEALTH of Pennsylvania

Vv.

Freddy McCUTCHEN, Appellant.

Supreme Court of Pennsylvania.

July 7, 1975.

Rehearing Denied Sept. 16, 1975.

OPINION OF THE COURT

O'BRIEN, Justice.

Appellant, Freddy McCutchen, was tried

by a judge and jury and found guilty of

murder in the first degree and sodomy.

Post-trial motions were denied and appel-

lant was given a life sentence, with a ten-

to-twenty-year sentence on the sodomy

charge to run consecutively with his life

sentence. This appeal followed.

Appellant, age fifteen at the time of

his arrest, argues that his confession

should have been suppressed based on our

decisions of Commonwealth v. Starkes,

Pa, , 335 A.2d 698 (1975) and Common-

wealth v. Roane, Pa. , 329 A.2d 286

'1974), because he was not given the bene-

Fit of parental or interested-adult guid-

ance prior to giving his confession. We

agree.

The facts surrounding appellant's con-

fession are as follows. On June 8, 1972,

ompany them to police Bh Bocrwaedl in

er that he could be interviewed con-

APPENDIX A

cerning the death of Wilfredo Martinez.

Appellant consented to go with the police

and arrived at police headquarters at or

about 7:00 p.m., where he was given his

Miranda warnings and questioned from 7:15

p.m. until 9:25 p.m. During this time,

appellant denied any involvement in the

homicide, but gave the police a statement

in which he said that he saw an elderly

man run from the area in which the vic-

tim's body was found. From 9:25 p.m. un-

til 10:30 p.m., appellant was left alone

and then, with his consent, was taken to

a polygraph room where a pretest inter-

view was conducted from 10:30 p.m. until

11:45 p.m. After the polygraph tests were

administered, appellant was told that he

was lying and at about 11:55 p.m., appel-

lant gave an incriminating statement which

was recorded in longhand and signed by

appellant at 1:10 a.m. After this first

confession was ended, the police took ap-

pellant's mother to police headquarters;

upon her arrival she was told that her son

had confessed to the homicide. She then

spoke with her son, and another formal

typewritten confession was taken, con-

cluding at 4:20 a.m. At no time prior to

appellant's first confession was he af-

forded the opportunity to consult with his

mother or an interested adult.

The Commonwealth, in an effort to dis-

tinguish the instant case from our deci-

‘ions of Roane and Starkes, supra, argues

that appellant's confession was voluntary

because he did not ask to have his mother

ore cent, and that because of his prior ex-

perience with the police, he was aware of

“he consequences of his confession and did

not need guidance in deciding whether to

confess. We are of the opinion that these

APPENDIX A

31

arguments do not take this case out of our

Roane and Starkes rationale. In Roane,

supra, we stated:

- « « In order to support a finding

that Daryl's waiver of his rights was

knowing and intelligent, we believe

that the record must indicate that

Mrs. Roane had an opportunity to give

Daryl the kind of helpful advice dis-

cussed in Gallegos, supra. The

instant case reveals no such opportu-

nity." At page, 329 A.2d at page

289.

In the instant case, the Commonwealth

admits that appellant's mother was not

present when he gave his first informal

confession but was only taken in to see

appellant when his final confession was

taken. Under these facts, it is clear

that prior to appellant giving his first

confession, which was in essence the same

as his later formal confession, appellant,

age fifteen, was not given the opportunity

‘oe consult his mother before he waived his

rights, an opportunity, in our opinion,

mandated by our Roane decision.

Judgments of sentence reversed and case

cemanded for proceedings consistent here-

with.

JONES, C.J., took no part in the con-

sideration or decision of this case.

EAGEN AND POMERY, JJ., dissent.

APPENDIX A

32

[7140]

IN THE SUPREME COURT OF PENNSYLVANIA

Eastern District

COMMONWEALTH OF PENNSYLVANIA

Vv.

MICHAEL, CHANEY, Appellant

Nos. 120 and 122 January Term, 1974

Appeal from the Judgment of Sentence of

the Court of Common Pleas, Criminal Trial

Division, of Philadelphia, at Nos. 81 and

82 October Sessions, 1972.

OPINION OF THE COURT

11/26/75

O'BRIEN, J.

Appellant, Michael Chaney, was

tried by a judge and jury and found guilty

of murder in the first degree and aggrava-

ted robbery. Post-trial motions were

lenied and appellant was sentenced to life

imprisonment. Appellant filed this appeal

and we reverse his judgment of sentence.

Appellant argues that the court

erred in failing to suppress his confes-

sion. Chaney, age sixteen, was arrested

September 8, 1972, at approximately 11:25

a.m. and transported to police head-

quarters, where he arrived at 11:45 a.m.

He was warned of his rights at 12:05 p.m.

and thereafter gave his first oral admis-

sion at 1:05 p.m. He was then questioned,

given a polygraph examination and finally

gave a final written statement at 7:54 p.m.

At his suppression hearing and in post-

trial motions, appellant argued that based

on our decision in Commonwealth v. Harmon,

440 Pa. 195, 269 A.2d 744 (1970), his con-

APPENDIX B

33

a

tarkes, Pa. ’

34

fession should have been suppressed be-

use he was a juvenile and because he did

~ voluntarily give the confession. How-

Since the taking of appellant's

meal in this case, this court has in

monwealth v. McCutchen, Pa. ’

_A.2d (1975), Commonwealth v.

A. 2d (1975)

Commonwealth v. Roane, Pa. ’

(1975), held that absent a

rT ,

A. 2d

rowing that a juvenile had an opportunity

} ‘

consult with an interested and informed

rent or adult or counsel before he

aived his Miranda rights, his waiver will

no

ineffectual. In the instant case,

) consultation was conducted prior to

ellant's waiver and, in fact, his

ner did not see him until 2:30 p.m.,

me three hours after his arrest; his

fession must, therefore, be suppressed

inder our McCutchen rationale. While ap-

-llant's arrest, confession and trial

< place before our decisions concern-

} a juvenile's waiver of his Miranda

_ants, he is nevertheless entitled to the

nefit of those decisions since he was on

ect appeal at the time of our

See Commonwealth v.

eCutchen decisions.

tie, 432 Pa. 256, 248 A.2d 32 (1968).

Judgment of sentence reversed and

ase remanded for a new trial consistent

ith this opinion.

Mr. Justice Pomeroy filed a

senting Opinion in which Mr. Chief

tice Jones and Mr. Justice Eagen

ned

4 a .

S

lis

]

APPENDIX B

[J.140]

IN THE SUPREME COURT OF PENNSYLVANIA

Eastern District

‘ONWEALTH OF PENNSYLVANIA

Vv.

“HAPL CHANEY, Appellant

120 and 122 January Term, 1974

rpeal from the Judgment of Sentence of

.e Court of Common Pleas, Criminal Trial

“ivision, of Philadelphia, at Nos. 81 and

Yetober Sessions, 1972.

DISSENTING OPINION

11-26-75

ROY, J. ’

As the majority opinion notes,

'5 Court has recently created a per se

-equiring reversal whenever a

nile has waived his constitutional

-+, see Miranda v. Arizona, 384 U.S.

6 L.Ed.2d 694 (1966), without the

ortunity to consult with a parent or

interested adult, who himself has

been advised of the juvenile's con-

.tutional rights. See Commonwealth v.

Lggs, Pa. P A.2d (1975);

commonwealth v. Webster, Pa. ’

Le 20 (1975); Commonwealth v.

McCutchen, Pa. ’ A.2d (1975);

umonwealth v. Starkes, Pa. ’

2d (1975); Commonwealth v. Roane,

Pa. , 329 A.2d 286 (1974. TI have

nsistently expressed my disagreement

with this rule. See the dissenting

Pinion of Mr. Justice EAGEN in Common-

APPENDIX B

wealth v. Roane, supra, joined by Mr. Chief

histice JONES and this writer, and Part I

' the dissenting opinion of this writer in

Commonwealth v. Webster, supra. I continue

adhere to the views expressed in those

pinions that the rule is unwise,

nnecessary and unwarranted. Hence this

ssent.

CHIEF JUSTICE JONES AND

JUSTICE EAGEN join in this dissent

APPENDIX B

36