In re Curry , 284 Pa. Super. 37 ( 1981 )

WICKERSHAM, Judge,

dissenting:

I dissent.

Testimony developed at the juvenile court hearing of William Christopher Curry (hereafter Chris Curry) developed the following situation.¹

In the fall of 1978 a series of break-ins and thefts occurred in the Forest Lake area of Susquehanna County. Guns, money and other valuables were stolen by persons unknown.

One of the many victims to testify was Frank Paul Yenich of Johnson City who was a camp owner at Forest Lake, Susquehanna County. He was at his camp in October 1978 and found “a window broke to a door and the door was open.” Various items were missing and he reported the incident to officer Raymond Bolcavage of the Pennsylvania State Police stationed at the Gibson Barracks and a fifteen year veteran doing criminal investigation. (NT 17-18, 38)

On December 4, 1978 Delbert W. Potts, who lives at Forest Lake, was near Mr. Yenich’s residence at 4:45 P.M. He saw a motorcycle sitting near a shed with a gas cap off of it and he felt this was “unusual.” (NT 31) Mr. Yenich was not at home so Mr. Potts “took a little look around.” Inside the shed, squatting down on the floor was a young man he knew named Stewart Robinson. (NT 33) As he left the scene he “met a young fellow walking back toward me,” named Chris Curry, the appellant herein. (NT 34)

Officer Bolcavage testified that he appeared at the Curry residence the same day, December 4, 1978, as an investigating officer in these series of fall 1978 Forest Lake burglaries. (NT 38) Trooper Thomas Corbett of the Pennsylvania State Police was also present along with Chris Curry, his brother Gerry Curry, another brother, the boys’ mother Mrs. Curry and their grandmother. It was six P.M. They were in the living room of their residence in Forest Lake Township.

Officer Bolcavage explained the Miranda rights to Gerry Curry and to his mother and they both understood them he said. (NT 39) He took a statement from Gerry only on that occasion. On the same day at the residence of Stewart Frank Robinson, Jr. in Forest Lake Township, and in the presence of Stewart’s father, and after full advice and understanding of Miranda rights, Officer Bolcavage took a statement from young Robinson. A further interview under identical circumstances was conducted the next day, on December 5, 1978 at the Robinson residence.

In the meantime a vigilante group of Forest Lake Township residents was forming over the series of eight different crimes (NT 44) and the mother of the Curry boys filed a juvenile petition with the District Attorney’s Office saying that she could not control her boys any longer and further they had run away from home the night before. (NT 44)

As a result Officer Bolcavage with County Detective Willard Collier took Gerry Curry and Chris Curry into protective custody on December 7, 1978. (NT 43) Mrs. Curry told the officers they had her permission to speak to the boys and to “attempt to clear up the situation if they were involved in any other crimes.” (NT 45)

On December 8, 1978 Officer Bolcavage and Detective Collier went to the county jail about 12:45 P.M. and advised the boys separately of their Miranda rights and separately took statements from them.

Chris Curry admitted his involvement in the break-in and theft at the Dayton residence and other places. (NT 52)

Chris Curry was 16 at the time of the juvenile hearing and 15 at the time of the criminal activity. (NT 73) He was at the time of said juvenile hearing living at home with his mother and attending school regularly. (NT 71)

By Order of February 6, 1979 Judge O’Malley found Chris Curry to be delinquent and continued the dispositional phase of the case. On April 5, 1979 Chris Curry was placed in the custody of his mother with commitment to a State Institution at Blossburg suspended. It is from the April 5, 1979 order that Chris Curry appeals to this Court through his counsel alleging that he was questioned by law enforcement officers in the absence of his mother and therefore his constitutional rights were violated, and that the incriminatory statement made to the police should not have been introduced in his juvenile hearing.

I would affirm. The rights of Chris Curry were carefully protected throughout and his case has been effectively and gently handled.

An uncalled-for reversal under the totality of circumstances here present would only serve to encourage disrespect for the law in this young man. His mother was fully informed at all stages of the case as to her rights and the boy’s rights. Her admirable response was to direct her boys to co-operate with the police and tell the truth—which they did upon her advice.

I would affirm the decision of the experienced trial judge below.²

1 . Hearing held February 5, 1979 before President Judge Donald O’Malley of Susquehanna County, Pennsylvania.

2 . See Comm. v. Barnes, 482 Pa. 555, 394 A.2d 461 (1978), which stands for the proposition that a juvenile must be provided an opportunity to consult with a mature, informed individual concerned primarily with the interest of the juvenile before administering Miranda warnings. Such was clearly done in this case.