OPINION ANNOUNCING THE JUDGMENT OF THE COURT
We granted the Commonwealth's petition for allowance of appeal in this case to determine whether the Superior Court, 318 Pa.Super. 76, 464 A.2d 1236 (1983), erred in awarding appellee a new trial on the grounds that his confession should have been suppressed under the principle enunciated by the United States Supreme Court in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), reh'g. denied 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981). A majority of this Court agrees that Edwards does not require suppression of appellee's confession and we therefore reverse the Superior Court.
On August 5, 1976, the bodies of Mrs. Claire Kepner and her two young children were discovered in their home near Muncy in Lycoming County. All had been shot with a .32 caliber gun, and one of the children had been slashed with a knife.
Appellee was first interviewed by state troopers regarding the homicides in April of 1977 and then on several occasions in July. The events underlying the suppression matters occurred principally on July 12th and 13th, and, briefly, took place as follows. On July 12, 1977, appellee and his wife voluntarily accompanied Troopers John S. Shimko and Chester J. Zaremba to the State Police Barracks
The following day, appellee telephoned Trooper Shimko and informed him that everything he had told Shimko the previous day was a lie. However, upon voluntarily returning to the barracks with his wife on July 13th, appellee admitted that his July 12th confession had been truthful and he essentially reiterated that confession. Prior to each statement, and on several occasions previous to July 12th, appellee had been advised of his Miranda rights
Appellee moved to suppress these statements of July 12-13, 1977 and a lengthy pretrial suppression hearing was conducted on November 11, 1977 before the Honorable John A. Walter in the Court of Common Pleas of Lebanon County.
Slip opinion of court en banc at 1-2.
Because appellee had been subjected to a polygraph examination and to intermittent questioning over an eight hour period by Pennsylvania State Police officers at the police barracks on July 12, 1977, the court en banc concluded that appellee had been in custody. That court cited and discussed Commonwealth v. Brown, 473 Pa. 562, 375 A.2d 1260 (1977) to support its view that a reasonable person in appellee's situation would have "perceived the restraint of his freedom." Id.
Having determined that appellee had been in custody, the court then examined the nature of the questions and statements posed to him by various state troopers, determined that appellee had been "subject to police conduct calculated to or likely to evoke admissions," and held that appellee had been subject to interrogation. Id. at 3-5, citing Commonwealth v. Simala, 434 Pa. 291, 252 A.2d 575 (1969) and Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974). Thus the court held that appellee had been subjected to "custodial interrogation" for Miranda purposes.
The court further found that appellee had been adequately advised of his Miranda rights, that he knowingly, voluntarily
Initially, the Superior Court identified the appropriate standards of appellate review of a suppression court's rulings:
318 Pa.Superior Ct. at 78, 464 A.2d at 1237. After examining the record pertaining to the events of July 12, 1977, the Superior Court affirmed the lower court's finding of custodial interrogation, stating:
Id., 318 Pa.Superior Ct. at 83-4, 464 A.2d at 1240. (citations omitted).
Nevertheless, the Superior Court reversed and awarded appellee a new trial based upon its understanding that appellee's waiver of his right to counsel was ineffective as a matter of law under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), reh'g denied 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981), and that, therefore, his confession should have been suppressed. This holding is wrong.
In Edwards, the United States Supreme Court held that:
451 U.S. at 484-85, 101 S.Ct. at 1884-85 (footnote omitted).
In reliance upon Edwards, the Superior Court held, in the instant case:
318 Pa.Superior Ct. at 89, 464 A.2d at 1242-43.
The Superior Court's reliance on Edwards to suppress appellee's statement is misplaced because, despite that court's strong language to the contrary, the record does not establish that appellee "clearly and unequivocally invoked his right to counsel" so as to trigger Edwards' prophylactic
Smith v. Illinois, 469 U.S. at ___, 105 S.Ct. at 492-93.
Because the Illinois Supreme Court had inferred ambiguity into Smith's otherwise unequivocal request for counsel from his responses to subsequent police questioning, the
As in Smith, the instant case concerns the threshold inquiry, i.e. whether appellee had invoked his right to counsel. Unlike Smith, however, the nature of appellee's "request for counsel" and the circumstances preceding such "request" were indeed equivocal and demonstrate that, in fact, appellee did not invoke his right to counsel. We do not, therefore, cross the Edwards threshold.
Prior to July 12, 1977, the date on which appellee's challenged confession was rendered, appellee had been interviewed by state troopers on several occasions, and on each occasion expressly waived his Miranda rights, including his right to counsel. Appellee had also been previously acquainted with his Miranda rights due to three prior arrests and convictions following guilty plea proceedings which included full colloquies at which appellee indicated that he knew and understood his rights. On July 12th, appellee was again given Miranda warnings several times and again signed written waiver forms and demonstrated a willingness to talk freely. For most of the day and at all important times that day, appellee was accompanied and advised by his wife, Virginia Hubble.
At approximately 2:00 p.m., according to the testimony of Trooper Shimko, the following occurred. Trooper Shimko asked appellee if he would be willing to give a tape-recorded statement, at which point Virginia Hubble suggested to appellee, "I think you better get a lawyer." Appellee then stated, "I want a lawyer," followed by, "I want a public defender." At that point, Trooper Shimko responded:
Notes of Testimony, Suppression Hearing, November 11, 1977 at 114a; see also N.T. at 177a (on cross-examination).
Although the trooper's statement regarding the availability of the public defender was erroneous and potentially misleading, the clear import of his response was that appellee could contact the public defender if he wished. Appellee's wife testified that she was aware, despite the trooper's comments, that her husband had a right to have counsel present. N.T. at 273a-74a. It is also apparent that appellee was not misled, because he next told Trooper Shimko that he wanted to call Mr. Jack Felix, a former public defender who had represented him in his previous difficulties with the law. The trooper looked up Mr. Felix's telephone number and appellee called this attorney's office but was informed he was not available.
Appellee then stated his desire to call his probation officer, Mr. Dave McCool, which he did. Appellee reached Mr. McCool at his residence. McCool testified that he told appellee he did not know if a public defender would come out to the police barracks, but he encouraged appellee to call the public defender's office. N.T. at 251a. Despite being advised to do so by both Trooper Shimko and Mr. McCool, and having every opportunity to do so, appellee did not contact the public defender's office nor did he make or request to make any further telephone calls.
Trooper Shimko again asked appellee if he would give a taped statement, which appellee agreed to do. This taped statement did not inculpate appellee. After that statement was given, Trooper Shimko advised appellee and Mrs. Hubble that he would take them home. According to Trooper Shimko and Mrs. Hubble, they and appellee walked down the hallway with their coats on and were about to leave the barracks when appellee stated that he wanted to first speak with his wife. N.T. at 122a-123a. Appellee and Mrs. Hubble were then left alone to talk. Several times, Trooper Shimko stopped in and asked, "What are you going to do
After about forty-five minutes, Trooper Shimko and another officer told appellee and his wife that they had information placing appellee at the scene of the crime. Appellee's wife then gave the officers an account of events that corresponded to that information. Appellee again conferred privately with his wife for approximately one-half hour until Trooper Shimko asked appellee whether he had participated in the crime. At that point, appellee gave the taped confession which the Superior Court held must be suppressed under Edwards.
Under all of these circumstances which appear of record, appellee did not invoke his right to counsel. What appellee did request was to call a particular attorney, which he did with Trooper Shimko's assistance, and to call his probation officer, which he did. While he had full opportunity to do so, appellee did not heed the advice given him to contact the public defender's office. Moreover, appellee initiated the events which lead to his inculpatory statement, since the prior interview had ended and appellee and Mrs. Hubble were in the process of leaving the barracks when appellee requested to stay and talk with his wife privately. These circumstances leading up to and surrounding appellee's requests to call "a lawyer", then Mr. Felix and Mr. McCool do not present the situation or the type of police conduct condemned in Edwards v. Arizona.
The United States Supreme Court stated in Smith v. Illinois, supra:
105 S.Ct. at 495. Although the Court did not decide the issue, it recognized at least three approaches to the problem of the consequences of ambiguity/equivocation in an accused's "request for counsel" taken by various jurisdictions:
105 S.Ct. at 493, n. 3 (emphasis added).
The first approach (all questioning must cease upon any mention of counsel no matter how ambiguous or equivocal) is unduly restrictive. As the United States Supreme Court recently stated in the context of analyzing the consequences
Under either of the other two approaches recognized by the United States Supreme Court, appellee's confession need not be suppressed. Appellee initially requested "a lawyer" or "a public defender," but then, after being advised that he could contact the public defender, requested to contact a particular attorney, and then his probation officer. With the possible exception of the erroneous statement about the public defender, which did not in fact mislead either appellee or his wife regarding appellee's right to counsel, Trooper Shimko scrupulously honored appellee's requests and assisted appellee in placing his telephone calls. Appellee did not attempt to contact the public defender's office though advised and given the opportunity to do so. Neither appellee nor his wife subsequently expressed the desire to speak with an attorney. From the foregoing, I would hold that appellee's requests did not pass the threshold level of clarity that trigger the Edwards prophylactic rule and that the subsequent conduct of the police officers following appellee's equivocal requests demonstrates a good faith, reasonable effort to comply with appellee's desires and to honor his right to counsel.
Moreover, were we to agree with the Superior Court that appellee's ambiguous request invoked his right to counsel in a manner clear enough to trigger Edwards, suppression of appellee's confessions would still be unwarranted because, under the circumstances, appellee (1) initiated
In Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), the defendant had stated during custodial interrogation, "I do want an attorney before it goes very much further." The interrogation then ceased. Subsequently, while being transported to another jail, the defendant asked "Well, what is going to happen to me now?" The police officer responded that the defendant need not talk to him since defendant had requested an attorney, but then suggested that defendant take a polygraph examination. The next day, the defendant was readvised of his Miranda rights, waived them, and took the polygraph. After being told that he did not seem to be telling the truth, the defendant confessed. Id. at 103 S.Ct. 2833.
The Oregon Court of Appeals reversed defendant's conviction "holding that [the] inquiry he made of a police officer at the time he was in custody did not `initiate' a conversation with the officer, and that therefore statements by the [defendant] growing out of that conversation should have been excluded from evidence under Edwards v. Arizona." Id. at 103 S.Ct. 2832. A majority of the United States Supreme Court reversed the Oregon court and held that Edwards did not require suppression of the confession. Justice Rehnquist wrote the plurality opinion (joined by the Chief Justice, Justice White and Justice O'Connor; Justice Powell agreed that Edwards did not require suppression of the confession and filed a concurring opinion) in which he held that Edwards had been misapplied because the defendant had indeed initiated further "communication, exchanges, or conversations with the police," stating:
Id. at 103 S.Ct. 2835 (citations omitted). Justice Rehnquist further stated that the "initiation of further conversation" requirement of Edwards was "designed to protect an accused in police custody from being badgered by police officers in the manner in which the defendant in Edwards was." Id. at 103 S.Ct. 2834. Justice Powell agreed that the defendant's confession should not have been suppressed under Edwards, but filed a concurring opinion because he would not apply the majority's two-step analysis in waiver of right to counsel cases. Justice Powell would simply apply the Zerbst-waiver standard (Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)) to determine whether a defendant's waiver of his right to counsel was knowing and intelligent, and would consider the fact of initiation of subsequent conversation as one of the factors to be considered. 103 S.Ct. at 2836-38. Justice Powell found that the defendant had made a valid waiver of his right to counsel. Id.
Since appellee initiated further communication, we must examine the totality of the circumstances to determine whether there was a knowing, intelligent and voluntary waiver of his right to remain silent and his right to counsel. Id. at 2835, 2838; Johnson v. Zerbst, supra. In examining the totality of the circumstances surrounding a confession, this Court has looked to a myriad of factors including the duration and methods of interrogation, the conditions of detention, the manifest attitude of the police toward the accused, the accused's physical and psychological state, and "all other conditions present which may serve to drain one's powers of resistance to suggestion and undermine his self-determination." Commonwealth v. Crosby, 464 Pa. 337, 346 A.2d 768 (1975). Regarding the validity of a waiver of the right to counsel, once a suspect has ambiguously requested to contact an attorney, a factor is, of course, whether the suspect or the police have initiated subsequent conversation leading to the incriminating statement. Commonwealth v. Youngblood, 453 Pa. 225, 307 A.2d 922 (1973); Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (1980). However, this is only one factor, albeit an important one, in the evaluation of whether the right to counsel was knowingly, intelligently and voluntarily waived. Id.
Finally, we note that, even if we considered appellee's first statement on July 12, 1977 to be inadmissible under Edwards, the introduction of that non-inculpatory statement against him at trial was harmless error and his other challenged statements of July 12th and 13th would nevertheless remain admissible. The first statement was not inculpatory and merely reiterated information that appellee had previously given the state troopers. Following that statement, the troopers ended the interview and began to take appellee and his wife home. Appellee thereafter initiated the subsequent events which lead to his second statement of July 12th and his third statement of July 13th — his inculpatory confessions.
The taint of any "illegality" associated with the first statement is thoroughly dissipated by this break in the casual connection between the first and the second and third statements, demonstrating that appellee's confessions were not the product of exploitation of the earlier "illegality" and were uncoerced acts of free will. Commonwealth v. Chacko, 500 Pa. 571, 580-82, 459 A.2d 311 (1983) (and see cases cited therein) ("We conclude that appellant's statement was an act of free will sufficient to break the casual connection between his initial, illegally obtained statement and his subsequent statements. Any taint thus having been purged, the latter statements were properly admitted.").
In Oregon v. Elstad, supra, the defendant had rendered a statement that was ruled inadmissible because of the failure to administer Miranda warnings, although the statement was otherwise voluntary and not coerced. In holding that subsequent statements rendered after full Miranda warnings were administered were admissible despite the technical illegality of the first unwarned statement, the United States Supreme Court stated:
470 U.S. at ___, 105 S.Ct. at 1298, 84 L.Ed.2d at 238. Thus, even assuming arguendo that appellee's first statement was in technical violation of Edwards, his subsequent statements were not "tainted" by that earlier "illegality," were "obtained pursuant to a knowing and intelligent waiver" and were admissible.
For the foregoing reasons, we hold that the Superior Court erred in its determination that appellee was entitled to a new trial because of the introduction of his statements of July 12-13, 1977 against him at trial. Accordingly, we reverse the order of the Superior Court which vacated the judgment of sentence and remanded for a new trial, and we remand this case to the Superior Court for disposition of appellee's remaining allegations of error.
PAPADAKOS, J., joins in this opinion.
FLAHERTY, J., files a concurring opinion.
NIX, C.J., files a concurring and dissenting opinion.
HUTCHINSON, J., files a dissenting opinion.
ZAPPALA, J., files a dissenting opinion.
McDERMOTT, Justice, concurring.
The suppression court found two salient facts: one, that the appellant was "in custody" when questioned by the police; and two, that although he asked for counsel, he voluntarily waived counsel and confessed. Both of these findings were within the responsibility of that court and, while one is not obliged to agree with them, if they are supported by the evidence they are the facts of the case. The Superior Court chose to accept one finding, that appellant was "in custody", and not the other, that the request for counsel was waived. The panel reasoned that while the suppression court's findings are solid rock, they are not required to reach the same conclusion from the same facts. Neither are we. I believe the conclusion reached by the Superior Court panel on the facts presented by the suppression court constituted an unnecessary reach for a view instead of a logic.
Notwithstanding that the appellant confessed on July 12, to a dreadful murder, he was allowed to go home. On July 13, while at home, he told his probation officer, Mr. McCool, who had consulted with him on July 12, that what he told the police on July 12, was a lie. Mr. McCool told him he best tell the police that he lied. Appellant called the police and he and Mr. McCool arranged to meet at the station house. They did, and appellant confessed again. One need not go further. Appellant was literally awash in Miranda warnings; he was allowed home and returned of his own accord, without counsel, either to correct a lie or tell the truth. Whatever his reason, no one forced him. Indeed, the case is sterile of any shadow of coercion and the
I join in the Opinion of Mr. Justice LARSEN.
FLAHERTY, Justice, concurring.
I agree with Mr. Justice Larsen that Superior Court must be reversed, but I write separately because my analysis of the case is somewhat different from that of the Opinion Announcing the Judgment of the Court.
It is easy to lose sight of the fact that the purpose of the rule articulated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny was to protect a citizen's Fifth Amendment right to silence and counsel against the overreaching of police. The United States Supreme Court has described the purpose of the Miranda rule as protecting against "`the overbearing compulsion. . . caused by isolation of a suspect in police custody,'" Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 1144, 79 L.Ed.2d 409 (1984), and this Court has stated: "The protection of Miranda was designed to shield an accused from the coercive atmosphere of `custodial interrogation' where the accused might reasonably believe that he would be held incommunicado and not be released before confessing to a crime." Commonwealth v. Ziegler, 503 Pa. 555, 470 A.2d 56 (1983). In general terms, of course, that is also the message of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), requiring that police questioning must end when a suspect, held in police custody, requests legal counsel. It will be recalled from Miranda, however, that in order for the warnings of Miranda to be required, the person must be subjected to custodial interrogation. Custodial interrogation is also a predicate of the Edwards case.
In the present case, the findings of the lower courts notwithstanding, Hubble was not in custody. Police testimony
There is a certain humor, in fact, in the lower courts' findings that Hubble was in custody. One envisions a cartoon in which police are carrying an unwilling citizen to the porch of his home, where they deposit him in a chair, and the citizen is protesting, "Please, don't force me to incriminate myself by keeping me in this awful place, separated from my familiar surroundings and the support and counsel of my family." I would hold, as a matter of law, that Hubble was not in custody.
If Hubble was not in custody at the time of his interrogation, then neither Miranda nor Edwards are applicable and the inculpatory statements were properly admitted into evidence.
Even if there were some question as to custody, however, I concur with the view of Mr. Justice Larsen that Edwards does not require a reversal of the conviction. Assuming
Here, Hubble initiated further conversations with police and it was proper for police to once again question him. Therefore, the subsequent confession of July 13, which was given freely and after renewed Miranda warnings, reaffirmed the confession of July 12, and would be admissible (along with the text of the July 12 confession). I quite agree with Mr. Justice Larsen that the fact that Hubble "let the cat out of the bag" on July 12 during what was, for the sake of argument, an improper police questioning, does not preclude the use of the July 12 confession where it was subsequently ratified during permissible police questioning on July 13. See Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222, (1985) ("[A] suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.") 470 U.S. at ___, 105 S.Ct. at 1298, 84 L.Ed.2d at 238.
The plain truth is that there was no police terror or brutality involved in this case. There was no overreaching. The evils which Miranda and its progeny seek to prevent were not present. The massive resources of government were not brought to bear to coerce a confession from a hapless citizen. Hubble was distraught and finally confessed not because of what the police did, not because government tortured and mistreated him, but because he could not live with the secret that he had participated in a terrible crime.
I join in reversing the order of Superior Court.
I agree with the majority that there is a legitimate question regarding the "in custody" requirement of Miranda. I would hold, however, that appellee's trial counsel was ineffective and direct that on remand new counsel be appointed.
It is clear from this record that the issue of the voluntariness of appellee's statements should have been raised at the suppression hearing. Experts for the Commonwealth as well as for the defense testified that appellee was mildly retarded. Appellee was questioned by a state trooper with whom he had been acquainted for several years. Appellee was subjected to repeated questioning and at one point the state trooper yelled at appellee during interview. In addition, the police used appellee's wife to help elicit his confession. From the foregoing I am convinced that the claim that appellee's will had been overborne would have been of arguable merit.
The question of the violation of appellee's right to counsel during questioning is another issue not raised below which may have been meritorious. This would be an additional ground for a finding of ineffective assistance of trial counsel. I would therefore remand for the appointment of new counsel to permit consideration of these significant constitutional issues.
HUTCHINSON, Justice, dissenting.
I dissent from the outright reversal of Superior Court's order. That court ordered a grant of post-trial conviction relief, based on appellant's Fifth Amendment right to the advice of counsel, under federal case authority resulting from the United States Supreme Court's decision in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Superior Court's reversal of Common Pleas is based on its acceptance of the suppression court's finding that appellee was in custody when he asked for counsel. I would remand this case to Common Pleas for reconsideration, based on the standards set out by the United States
The opinion announcing the judgment of the Court states in its discussion of appellee's right to counsel during his interrogation that:
509 Pa. at 505-506, 504 A.2d at 172 (emphasis in original). I believe that the record contains as clear an invocation of the right to counsel as could be envisioned. The record shows that appellee said "I want a lawyer." R.R. at 113a. He
I agree that not every vague reference to a lawyer requires the application of Edwards. However, that principle has no application to the facts of this case; appellee's statement is clear and unambiguous. Indeed, I do not see how appellee could have done any more to invoke the Fifth Amendment right, which the United States Supreme Court has seen fit to afford him, to secure counsel's advice before giving an in-custody statement. The opinion announcing the judgment of the Court attempts to justify its determination that this request is not clear enough to invoke Edwards by reference to the fact that appellee first called a private attorney, instead of the public defender, and finally his probation officer when the private attorney was unavailable. That opinion states he did not call the public defender after being encouraged to do so. That "encouragement" included the statement of the interrogators that they did not think the public defender would be available to him because he had not been arrested. See R.R. at 114a (quoted in opinion announcing the judgment of the Court, supra, 509 Pa. at 510-511, 504 A.2d at 173). That self-serving and potentially misleading statement supports a finding that appellee was not in custody, an opinion held by the police themselves and communicated to him. It does not support a finding that he was advised of his right to free counsel before giving a statement to police. It is on this "encouragement," given after appellee's unambiguous request for counsel, that the opinion announcing the judgment of the Court concludes appellee's request was not clear because he did not follow up on it by calling the public defender.
Such an analysis is inconsistent with the recent United States Supreme Court decision in Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) (per curiam). There the Court stated:
105 S.Ct. at 494-95 (emphasis in original).
I agree that this case is controlled by Smith. However, its analysis of that case seems to me to stand Smith on its head. Here appellee clearly indicated that he wanted the assistance of counsel before he gave his statement. Even if the subsequent circumstances set out in the opinion announcing the judgment of the Court show an ambiguity in his request instead of his reliance on the police's statement that the public defender could not help him because he was not in custody, they are post-request irrelevancies on the issue of ambiguity, according to the teaching of the United States Supreme Court in Smith. Using them to cast doubt upon appellee's initial request for counsel is against both the spirit and letter of Smith.
It seems to me equally incorrect to state that even if appellee's request was sufficient to invoke his right to counsel he waived it by initiating the events that led up to his confession. The evidence on this record is insufficient to establish a waiver of the right to counsel which the United States Supreme Court gave this appellee in Edwards, supra. Edwards stated that once the right to counsel has been invoked it cannot be waived by later uncounseled interrogation unless the defendant initiates the communication. See also Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983); Wyrick v. Fields, 459 U.S. 42, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982) (per
451 U.S. at 484-85, 101 S.Ct. at 1884-85. This record reveals that subsequent uncounseled interrogation was initiated, not by appellee, but by the police. The opinion announcing the judgment of the Court attempts to construct a subsequent initiation of communication by appellee by the bald statement that:
Supra, at 509 (emphasis in original). This conclusion is a non-sequitur on this record. Appellee's request to speak with his wife was not an initiation of further communication with the police. A request to speak to one's spouse, albeit in a police station, is not an initiation of a communication with the police which they have an option to convert into a knowing, voluntary and intelligent waiver of appellee's Fifth Amendment right to counsel. It may be true that if appellee had not asked to speak to his wife before leaving he would not have confessed later on. However, such a
R.R. at 128a. Appellee did not ask to speak to the police. He asked to speak to his wife. The police interrupted them and directly interrogated him in the absence of counsel, after counsel was requested. Appellee's confession followed direct questioning subsequent to his clear invocation of his right to counsel. Under Miranda, if appellee was in fact in custody, under the Beckwith standards, all interrogation must cease after that invocation.
Whether he was in custody is, as stated, a factual issue which I cannot resolve on this record because of the ambiguities in Common Pleas' opinion. In order to clear up those ambiguities, it seems to me Common Pleas must demonstrate its understanding of the current legal standards for determining the fact of custody. In fairness to Common Pleas, however, I note that those standards had not been clearly set forth in this Commonwealth when Common Pleas considered this case.
To aid Common Pleas in its task, I believe it is necessary to set forth the ambiguities I see in the Common Pleas' custody finding and the development of the law with respect
The suppression court in the instant case found that appellee was the subject of custodial interrogation. Superior Court stated that this finding was "amply supported by the record." 318 Pa.Superior Ct. at 83, 464 A.2d at 1240. This is true if the appropriate tests were applied by Common Pleas. However, I cannot tell on this record whether they were.
Many of the cases Superior Court cited are themselves based on Escobedo's independent focus test. See, e.g., Commonwealth v. O'Shea, 456 Pa. 288, 318 A.2d 713, cert. denied, 419 U.S. 1092, 95 S.Ct. 686, 42 L.Ed.2d 685 (1974); Commonwealth v. D'Nicuola, 448 Pa. 54, 292 A.2d 333 (1972); Commonwealth v. Simala, 434 Pa. 219, 252 A.2d 575 (1969). We should repudiate their implication that
Perhaps most important, the suppression court's findings on the issue of custody are internally inconsistent if not based on an independent focus test. We stated in Chacko, supra, that a person is in custody when
Id. 500 Pa. at 577, 459 A.2d at 314 (citations omitted).
The inconsistency of the suppression court's findings under the Chacko standard can be seen by comparing its finding no. 2 with nos. 13, 14 and 15. In its finding of fact no. 2 the suppression court says:
However, findings of fact nos. 13, 14 and 15 state:
These later findings seem to imply that appellee was not in custody when interviewed on July 12. See Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977).
Because the suppression court had before it detailed evidence concerning the police investigation's focus on appellee before the July 12, 1977 interrogation, see R.R. 54a-68a (testimony of Officer Shimko),
Trial ct. slip op. at 3 (en banc).
The lower court nowhere makes a finding that appellee reasonably believed his freedom was restricted by the police, the custody test Mr. Chief Justice, then Mr. Justice, Nix, speaking for our Court, set forth in Commonwealth v. Chacko, supra. On the contrary, the record shows appellee was told several times that he could go home. R.R. 121a, 125a. Further, appellee's requests for coffee and permission to talk to his wife were always granted. R.R. 97a, 99a, 122a, 123a, 127a. Officer Shimko testified "[appellee and his wife] had freedom of the barracks. . . . We weren't retaining them in any way." R.R. at 181a. Indeed, the trial court itself noted these facts. See Findings of Fact nos. 13-16, R.R. at 382a-383a. Therefore, the trial court's blanket finding of "custody" is, on the surface, inconsistent with these other findings unless based on the independent focus test in Escobedo, which the United States Supreme Court repudiated as a matter of federal law in Beckwith
Although the record thus indicates that the suppression court incorrectly applied an independent focus test to the custody issue, there is also record evidence which would support a finding of custody under Beckwith and Chacko. Appellee was given a lie detector test and was questioned several times over an eight-hour period. During the suppression hearing, appellee said he was scared to ask about leaving and stated, "I thought I'd go to jail if I got up and walked away." R.R. at 322. Appellee's wife, who was also at the station, stated she thought they could not leave because her husband was read his Miranda rights. R.R. at 284. In addition, the fact that appellee was a suspect remains a relevant fact in determining the custody issue. Beckwith, supra. The suppression court therefore had a right to consider the suspicion the police had about appellee in evaluating all the conflicting evidence concerning his freedom to leave. Whether it incorrectly felt the focus on appellee is an independent basis in this Commonwealth for a finding of custody or merely one relevant piece of evidence which it considered in evaluating the whole suppression record for the purpose of resolving the custody issue is not apparent. Since questions involving conflicting evidence, or inferences from it, are for the finder of fact, not an appellate court, see, e.g., Commonwealth v. Penn, 497 Pa. 232, 439 A.2d 1154, cert. denied, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 (1982); Commonwealth v. Whack, 482 Pa. 137, 393 A.2d 417 (1978); Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974), I believe we should remand for clarification on this point. Cf. Jasper v. Workmen's Compensation Appeal Board, 498 Pa. 263, 445 A.2d 1212 (1982) (court should remand cases where findings of fact are internally inconsistent). In any event, Superior Court's outright reversal of the suppression court's ruling that the evidence was admissible seems to me incorrect under the
Thus, I would remand this case to Common Pleas for reconsideration of this custody question. However, if compelled to reach the question of appellee's right to counsel, my reading of the United States Supreme Court's opinions in Smith and Edwards, which are binding on us, seems to me to force us to affirm the grant of a new trial, contrary to the reasoning on this issue in the opinion announcing the judgment of the Court.
ZAPPALA, Justice, dissenting.
I join in the dissent of Mr. Justice Hutchinson only insofar as his opinion would hold that Appellee effectively
While this argument is not without merit it emphasizes the factors on the "non-custodial" side of the ledger to the exclusion of the factors on the "custodial" side. While this Court perhaps might have reached a different conclusion based on these factors, the suppression court's conclusion that appellee had been in custody is supported by record evidence, and the Superior Court, therefore, properly affirmed.