DISSENTING OPINION BY MR. JUSTICE ROBERTS:

The record in this case and controlling law — both constitutional and decisional — as well as established police practices and the widely shared views of commentators join everyday common experience and simple justice in urgently compelling dissent from the majority's refusal to grant relief.

The majority holds that Leonard Moses, a sixteen-year-old boy with no prior experience with the law, taken some time after 11 p.m. by the police from the charitable home for boys where he resided and placed in a police car alone with three policemen, there "knowingly and intelligently" made the judgment to surrender both his constitutional right to remain silent and his constitutional right to the assistance of counsel, with the result that the police interrogated him at their "unsupervised pleasure" and secured a confession admitted at trial over objection which convicted him of murder.

The majority reached its conclusion by purporting to rely on the "totality of the circumstances" test which we adopted in Commonwealth v. Darden, 441 Pa. 41, 271 A.2d 257 (1970), for determining the effectiveness of juveniles' waiver of their Miranda rights. However, upon analysis, it becomes clear that the sole basis of the majority's finding of an effective waiver was a new pronunciamento, "the sophistication of the average sixteen-year-old in these days and times".

The majority's reliance on this alleged sophistication is impermissible for two reasons. First, the assumption is intrinsically unsound. It has been contradicted by virtually every other authority that has been called upon to determine the capacity of juveniles to make the legally binding judgment that is involved here. Second, by relying on this invalid assertion, the majority creates a per se rule which violates our constitutional obligation to make a case by case determination of whether a "knowing and intelligent" waiver occurred. Miranda v. Arizona, 384 U.S. 436, 475-76, 86 S.Ct. 1602, 1628-29 (1966); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023 (1938).

The majority relies primarily on two factors in its purported application of Darden's totality of the circumstances approach: (1) the fact that Moses was a sixteen-year-old tenth grade student on the date in question; and (2) its assertion that Moses "enjoyed at least average intelligence, as indicated by his testimony in the trial court proceedings."

Though it is clear that Moses was sixteen years old and a tenth grade student on the day in question, I disagree with the majority's assertion that Moses "enjoyed at least average intelligence". In the first place, I do not believe that the majority, merely by reading the notes of Moss' testimony at trial, can draw any realistic or reliable conclusions concerning Moses' "intelligence". In the second place, the waiver whose effectiveness is disputed took place in November, 1968, and Mose's suppression hearing and trial were not held until eight months later. I do not believe that Moses' testimony, in a courtroom and with the guidance and assistance of an attorney, can be related back to determine Moses' intelligence at the time that he was interrogated.

The majority reasons as follows. First it makes the unsupported assertion that "the average sixteen-year-old in these days and times" is sufficiently "sophisticated" to have the capacity to make a knowing and intelligent waiver of his Miranda rights without at least some advice from "a more mature person". The majority then points to Leonard's status as a sixteen-year-old tenth grader and their assumption of his "average intelligence", and concludes that Leonard is an "average sixteen-year-old". Therefore, the majority further concludes, Moses made a knowing and intelligent waiver while alone with the three policemen in the police car.

Even if I were convinced — and I am not — of the intrinsic soundness of the majority's assertion that the "average sixteen-year-old" has the capacity to make a knowing and intelligent waiver of his Miranda rights, without the advice of an adult, I would still regard the majority's conclusion as constitutionally impermissible. For even if it is conceded that Leonard was generally of "average intelligence", he may have been below the average of sixteen-year-old tenth graders in the particular capacity of judgment that is required for an effective waiver — the capacity to knowingly and intelligently waive Miranda rights. In fact, as the United States Supreme Court recognized in Johnson v. Zerbst, supra, the capacity to make a knowing and understanding waiver of Miranda rights is as much a function of the accused's particular "background" and "experience" as of his intelligence. And there is nothing in the record to indicate that Moses' background and experience developed the capacity to knowingly and intelligently waive Miranda rights. Indeed, the record establishes that Moses had no prior contacts with the law. Moreover, the majority's reasoning ignores the fact that a youth's capacity to make a knowing and intelligent waiver may vary with the circumstances at the time and place that the waiver is alleged to have occurred.

A finding of waiver of Miranda rights cannot be sustained on the basis of the "average" capacity of a class to which the defendant may belong. A finding of waiver of these federal constitutional rights can rest only on the basis of an individualized analysis of each defendant's particular capacity, in the particular circumstances of the case, to make a knowing and understanding waiver. As the United States Supreme Court stated in Johnson v. Zerbst: "It has been pointed out that 'courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and that we 'do not presume acquiescence in the loss of fundamental rights'. A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Id. at 464, 58 S.Ct. at 1023 (emphasis added) (citations omitted).

The majority's "emphatic rejection" of a prophylactic or per se rule is a non-sequitur. For what the majority has done is to create a per se rule that any sixteen-year-old, who is generally of "average intelligence", regardless of his particular capacity to understand his Miranda rights and appreciate the significance of waiver, and regardless of the particular circumstances at the time and place that the waiver is alleged to have been effected, will be found to have made a knowing and intelligent waiver.

Only by ignoring both the record and reality can the majority conclude that effective waiver occurred when the police placed this sixteen-year-old in the squad car with three policemen and in that coercive setting recited to him pro forma his Miranda warnings. Upon review of the record, I find nothing to support an effective waiver.

Present at the time of arrest at the charitable boy's home were three adult social workers: Father Sherwin, Mr. Walter Crocker, and Mr. Denman. These adults were actively interested in the youth's welfare, and Mr. Denman enjoyed the boy's complete confidence. In the presence of the three social workers the police officers had an opportunity to inform the youth of his constitutional right to remain silent and the right to counsel. Indeed, Mr. Denman asked the police officers if the interrogation of the juvenile could take place in their presence.

This request was denied. The police stated to the adults that any questioning of the boy at that time would violate his constitutional rights and instead waited until the boy was in the squad car with three police officers before giving him the warnings. The statement made to the boy's guardians by the police was legally incorrect and highly misleading. If it was meant to suggest that the interrogation of a juvenile was constitutionally required to be a clandestine affair, it was a clear misstatement of the law. The Supreme Court in Miranda specifically stressed that an "[o]pportunity to exercise" the Miranda rights "must be afforded [defendant] throughout the interrogation." 384 U.S. 436, 479, 86 S.Ct. 1602, 1630. Certainly this sixteen-year-old would have had a reasonable "[o]pportunity to exercise" his rights while in the company of his guardians but the thirty-minute police car custody afforded the accused virtually no "[o]pportunity to exercise" his rights. Additionally, the police officer's statement to the guardians effectively discouraged or even precluded the adults from being present or seeking access to the youth during police interrogation. Cf. Commonwealth v. Harmon, 440 Pa. 195, 269 A.2d 744 (1970), where in sustaining the suppression of a juvenile's confession this Court held that by refusing the boy's parent, attorney, and adult friend access to the boy during interrogation the police used "tactics in the securing of the challenged statement which we cannot condone". Id. at 199, 269 A.2d at 746.

The abrupt shift from the charitable home for boys to the police car was geographically slight but psychologically and consequently legally significant. Had the police but taken advantage of the opportunity presented in the Home to advise Leonard of his Miranda rights, there would have been a greater likelihood of an intelligent and understanding waiver, since Leonard would have been able to draw upon the maturity and experience of the adults present.

The limited discussion of authority by the majority ignores the principles of case law, the views of responsible commentators, and established police practices, all of which mandate a careful scrutiny of the circumstances in which a juvenile's confession is secured and recognize the need for some adult guidance to insure a proper waiver of constitutional rights.

The strict standard for determining whether there has been an effective waiver of constitutional rights was first enunciated in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019 (1938), where the Supreme Court declared: "A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege." Id. at 464, 58 S.Ct. at 1023; Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 888 (1962); Commonwealth v. Anderson, 441 Pa. 483, 486, 272 A.2d 877, 878 (1971); Commonwealth v. Singleton, 439 Pa. 185, 188-89, 266 A.2d 753, 754 (1970). This standard was applied to in-custody interrogation waivers in Miranda v. Arizona, supra.

On this record it is clear that to sustain the validity of "the most compelling possible evidence of guilt, a confession", which was "obtained" from this sixteen-year-old accused "at the unsupervised pleasure of the police" would only serve to render the subsequent proceedings "empty formalities." Only by guaranteeing effective waiver of constitutional rights during police interrogation can the integrity of the subsequent proceedings be preserved.

The need to assure a constitutionally valid waiver has been recognized as especially acute in the area of juveniles. As far back as 1947 the United States Supreme Court observed in Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302: "Age 15 is a tender and difficult age for a boy of any race. He cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens. This is the period of great instability which the crisis of adolescence produces. . . . No lawyer stood guard to make sure that the police went so far and no further, to see to it that they stopped short of the point where he became the victim of coercion. No counsel or friend was called during the critical hours of questioning." Id. at 599, 68 S.Ct. at 304.

In holding that a mere formal recitation of constitutional rights did not render the minor defendant's subsequent confession voluntary, the Court explicitly rejected the assumption: ". . . that a boy of fifteen, without aid of counsel, would have a full appreciation of that advice and that on the facts of this record he had a freedom of choice." Id. at 601, 68 S.Ct. at 304.

This same constitutional imperative was reaffirmed in Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209 (1962). In determining that the confession elicited by the police from a fourteen-year-old boy was involuntary the Court said: "He cannot be compared with an adult in full possession of his senses and knowledgeable of the consequences of his admissions. He would have no way of knowing what the consequences of his confession were without advice as to his rights — from someone concerned with securing him those rights — and without the aid of more mature judgment as to the steps he should take in the predicament in which he found himself. A lawyer or an adult relative or friend could have given the petitioner the protection which his own immaturity could not. Adult advice would have put him on a less unequal footing with his interrogators. Without some adult protection against this inequality, a 14-year-old boy would not be able to know, let alone assert, such constitutional rights as he had. To allow this conviction to stand would, in effect, be to treat him as if he had no constitutional rights." Id. at 54-55, 82 S.Ct. at 1212-13.

Again in In Re Gault, 387 U.S. 1, 87 S.Ct. 1428 (1967), the Court cautioned special scrutiny in the receipt of an admission made by a juvenile not in the presence of counsel: "If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission 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 fantasy, fright or despair." (Citations omitted.) Id. at 55, 87 S.Ct. at 1458. The Court cited with approval a recommendation by the President's Commission on Law Enforcement and Administration of Justice that in order to assure " 'procedural justice for the child,' it is necessary that 'Counsel . . . be appointed as a matter of course wherever coercive action is a possibility, without requiring any affirmative choice by child or parent.' "

In determining whether this sixteen-year-old knowingly waived his right to counsel we should compare the circumstances of this purported waiver with the protection and careful explanation by the court of the value of counsel given to adults when adults seek to make an in-court waiver of counsel. The ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Providing Defense Services § 7.3 (Approved Draft 1968), provide the following directives for achieving a constitutional in-court waiver of counsel. "No waiver of counsel should be accepted unless it is in writing and of record. If a person who had not seen a lawyer indicates his intention to waive the assistance of counsel, a lawyer should be provided to consult with him. No waiver should be accepted unless he had at least once conferred with a lawyer. If a waiver is accepted, the offer should be renewed at each subsequent stage of the proceedings at which the defendant appears without counsel." (Emphasis added.) The United States Supreme Court in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999 (1970), acknowledged "[t]he inability of the indigent accused on his own to realize [the] advantages of a lawyer's assistance" and went on to carefully articulate the values of counsel during "any pretrial confrontation". Surely this accused suffers at least the same "inability . . . on his own to realize [the] advantages of a lawyer's assistance."

It must be obvious from this record that the need for at least some adult guidance for this sixteen-year-old accused in "deciding" whether to waive counsel was certainly as imperative as that of an adult who stands before the court. Once this accused "decided" in the police car to waive his right to counsel and a confession was secured, he had "let the cat out of the bag". United States v. Bayer, 331 U.S. 532, 540, 67 S.Ct. 1394, 1398 (1947). In doing so he had realistically and effectively limited the professional ability of subsequent counsel to do any more than challenge the validity of the confession, which is precisely the relief being sought here. The Supreme Court must have envisioned this or similar factual situations when it prophetically said: "Without the protections flowing from adequate warning and rights of counsel, 'all the careful safeguards erected around the giving of testimony, whether by an accused or any other witness, would become empty formalities, in a procedure where the most compelling possible evidence of guilt, a confession, would have already been obtained at the unsupervised pleasure of the police'." Miranda v. Arizona, 384 U.S. 436, 466, 86 S.Ct. 1602, 1624 (quoting from Mapp v. Ohio, 367 U.S. 643, 684, 81 S.Ct. 1684, 1707 (1961) (HARLAN, J., dissenting) (emphasis added).

Many other states have held confessions of juveniles obtained in the absence of adult guidance to be involuntary. In New York the courts exclude all confessions made by a juvenile not in the presence of his parents or counsel. These decisions reason that such an approach is constitutionally mandated in In Re Gault, supra, and also rely on provisions in the Family Court Act that require a child to be delivered to the court or the detention facility "without his first being taken to the police station house". See In Re William L., 29 A.D.2d 182, 287 N.Y.S.2d 218 (1968); In the Matter of Richard W., 29 A.D.2d 873, 288 N.Y.S.2d 380 (1968); In Re Aaron D., 30 A.D.2d 183, 290 N.Y.S.2d 935 (1968). Other states with comparable statutes have interpreted them in a similar fashion. See, e.g., State v. Arbeiter, 408 S.W.2d 26 (Mo. 1966); Frye v. Gladden, 1 Or. A. 629, 465 P.2d 716 (1970); State v. Shaw, 93 Ariz. 40, 378 P.2d 487 (1963). See generally, Glen, Interrogation of Children: When Are Their Admissions Admissible?, 2 Fam. L.Q. (1968).

The New Jersey Supreme Court has held that confessions given by thirteen- and fifteen-year-old boys whose parents were denied access to their sons during police interrogation were involuntary. In Re State In Interest of Carlo, 48 N.J. 224, 225 A.2d 110 (1966). That court rejected the prosecutor's argument that the confessions were voluntary because they had been preceded with a recitation of the juvenile's constitutional rights: "However, it seems doubtful that these boys, age 15 and 13, had the mental capacity, particularly in the environment of a police station, to appreciate the extent of their rights and the consequences of a failure to exercise them (citing Haley v. Ohio, supra)." Id. at 241-42, 225 A.2d at 120. For a similar result see Daniels v. State of Georgia, 226 Ga. 269, 174 S.E.2d 422 (1970), where the Georgia Supreme Court held that In Re Gault had been violated where the mother was intoxicated when the Miranda warnings were given to her son. In a recent Rhode Island case, In Re Juvenile, ___ R.I. Fam. Ct. ___ (1971), a minor's confession not given in the presence of a parent or counsel was held involuntary even though the minor had misrepresented his age to the police. The court first noted that the state of Rhode Island had adopted a version of the Department of Health, Education and Welfare standards for questioning juveniles which require, inter alia, that the parents of a juvenile be informed of the child's rights before questioning. The court also observed that the identification proferred by the boy was patently fraudulent and held that the police should have realized that they were dealing with a minor.

The need for adult guidance when juveniles are called upon to decide whether to surrender their Miranda rights has been universally recognized by leading commentators. Dealing specifically with the issue of whether a minor can, by himself, waive his right to silence and right of counsel, the Model Rules for Juvenile Courts, promulgated by the Council of Judges of the National Council on Crime and Delinquency state unequivocally: "No extrajudicial statement by the child to a peace officer or court officer shall be admitted into evidence unless it was made in the presence of the child's parent or guardian or counsel. No such statement shall be admitted into evidence unless the person offering the statement demonstrates to the satisfaction of the court that, before making the statement, the child and his parents were informed and intelligently comprehended that he need not make a statement, that any statement made might be used in a court proceeding, and that he had a right to consult with counsel before or during the making of a statement." The ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Providing Defense Services provides: "No waiver should be found to have been made where it appears that the accused is unable to make an intelligent and understanding choice because of his mental conditions, age, education, experience, the nature or complexity of the case or other factors." (Emphasis added.) This Court has heretofore expressed its concern over the absence of counsel, parent, or adult friend in determining whether a minor's waiver of constitutional rights was knowing and intelligent. In Commonwealth v. Darden, 441 Pa. 41, 48, 271 A.2d 257, 260 (1970), we acknowledged that in ascertaining whether a sixteen-year-old boy was aware of his constitutional rights ". . . he cannot be judged by the more exacting standards of maturity" and indulged in a ". . . very careful study of all of the circumstances disclosed by the record. . . ." Even more in point is Commonwealth v. Harmon, 440 Pa. 195, 269 A.2d 744 (1970), involving the admissibility of a confession of an eighteen-year-old boy. During the period of his interrogation the police denied the defendant's mother, an attorney from the Public Defender's Office, and an adult friend from the Commission of Human Relations, access to the youth. Noting that the record disclosed "the use of tactics in the securing of the challenged statement that we cannot condone" this Court unanimously affirmed the trial court's ruling that the confession was involuntary. Id. at 199, 269 A.2d at 746.

In addition to violating our constitutional mandate and earlier decisions of our Court, the majority's decision also conflicts with existing police practices in the metropolitan areas of the Commonwealth. The police are generally instructed by their official operations manuals to defer the questioning of juveniles until their parents or counsel are present. See Juvenile Court Judge's Commission, Juvenile Court Handbook, p. v (Supp. 1970). The forward to the 1970 edition notes that the standards promulgated by the Commission have been used by ". . . judges, probation officers, police, social workers. . . ." The section on police interrogation of minors advises, inter alia, ". . . great care should be exercised by the police to ascertain that the child and his parents fully comprehend the child's constitutional rights in order that there be an effectual and intelligent waiver of such rights. . . . Unless such constitutional warnings are given and intelligently and understandingly waived by the child and his parents, no statement or admission can be used against him in an adversary proceeding." (Emphasis added.) Similarly the Police Guidance Manual on Juvenile Delinquency, prepared by Professors Louis B. Schwartz and Stephen R. Goldstein of the University of Pennsylvania Law School for use by the Philadelphia Police Force and as a model for metropolitan police forces generally, advises: ". . . the juvenile gets more protection in some ways against police questioning than an adult gets . . . the youngster's 'consent' to answer questions may not be enough to legalize if it [sic] he is too young to realize the risk and consequences, or if his parents or lawyer are not present. Even offer of a lawyer's services and formal warning that answers may be used against him may not be enough in the case of an ignorant young child." In accord is the Standard Operational Procedure for Juvenile Division of the Erie Police: "No statement shall be taken from a child unless one of his parents or guardians has first been informed of the matter on which the interview is to take place and has given his specific permission for such interview."

The Pennsylvania State Police and the Federal Bureau of Investigation have exhibited equal concern for the constitutional rights of juveniles: "Prior to initiating an interview, the investigating officer shall inform the child's parents and/or the child of his Constitutional right to remain silent and of his right to counsel, appointed or retained. This procedure shall be followed regardless of the intelligence of the child and regardless of the absence or the presence of parents or parental permission for the interview." The Pittsburgh Police, involved in this case, are operating under a manual that predates the Escobedo and Miranda opinions. See Police Manual Regulations for Handling Juveniles, Pittsburgh Bureau of Police, Pittsburgh, Pennsylvania, effective June 1, 1962. Even in such a dated publication the manual instructs the police to notify the parents or guardians of an arrested minor as soon as possible. Presumably the rationale of such a requirement is to permit the minor to consult with a friendly and experienced adult before making critical decisions. It must be recognized that such manuals are of persuasive and pragmatic significance. They show that police administrators and advisors are themselves aware of the potentials for abuse if a juvenile is unaided by counsel, parent, or adult friend when interrogated by the police. The manuals convincingly refute any apprehensions that the required presence of adults would in any way impinge upon or frustrate responsible existing police practices. The result reached by the majority contradicts present police procedures in questioning juveniles.

In attributing to Leonard Moses the capacity to waive his rights in the absence of adult guidance, the majority ignores the previous judgments of this Court and the long established policy in this Commonwealth of precluding minors from making legally binding decisions. For example, minors in the absence of consent by parents or guardians. are not permitted: to consent to medical treatment unless medical necessity dictates, Act of February 13, 1970, P. L. 19, §§ 1-5, 35 P. S. § 10101-105; to give blood, Act of December 9, 1969, P. L. 333, § 1, 35 P. S. § 10001; to obtain a marriage license, Act of August 22, 1953, P. L. 1344, § 5, as amended, 48 P. S. § 1-5(c); to compromise, settle, or discontinue pending actions, Pennsylvania Rules of Civil Procedure 2039(a). Furthermore, it has long been the law of Pennsylvania that minors are not bound by contracts they enter except for necessities. Schmucker v. Naugle, 426 Pa. 203, 205, 231 A.2d 121, 123 (1967); Pankas v. Bell, 413 Pa. 494, 498, 198 A.2d 312, 314 (1964); O'Leary Estate, 352 Pa. 254, 42 A.2d 624 (1945). Under the majority's ruling a minor is given more legal protections in making decisions involving his rights in civil law matters than the majority accords this minor in waiving constitutional rights involving his life and liberty.

Reviewing the record and applying, as we must, the constitutional mandates of Haley, Gallegos, Miranda and Gault, and the controlling principles of our decisions in Darden and Harmon, it must be concluded that the warnings administered to this sixteen-year-old defendant were inadequate and that his "waiver", under these circumstances, failed to meet the constitutional standards of Johnson v. Zerbst and the decisions of this Court, supra. Leonard Moses was in a difficult position "which can overawe and overwhelm a lad in his early teens." During the "critical hours of questioning" he was without "counsel or friend". Haley v. Ohio, 332 U.S. at 600, 68 S.Ct. at 304. No one stood guard "to make sure that the police went so far and no farther, to see to it that they stopped short of the point where he became the victim of coercion". Id. Responsible police and other authorities throughout the Commonwealth concerned with juveniles for many years have realized that a youth in such a "predicament" should have a parent, adult friend, or counsel to insure ". . . a full appreciation of . . . [his] freedom of choice". Id. at 601, 68 S.Ct. at 304. Here, as in Haley and Gallegos, no such advice concerning the fundamental constitutional protections was made available to this sixteen-year-old youth. He was not equipped to make this critical decision alone and his waiver was legally insufficient when measured by the standards enumerated above.

I would reverse the judgment of sentence and grant a new trial.

Mr. Justice O'BRIEN joins in this dissenting opinion.