# Commonwealth v. DeJesus > Supreme Court of Pennsylvania · December 31, 2001 · 567 Pa. 415 URL: https://www.frixlaw.com/law-library/cases/9753478 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. Jose DeJESUS, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** December 31, 2001 - **Citations:** 567 Pa. 415; 787 A.2d 394; 2001 Pa. LEXIS 2761 - **Precedential status:** Published - **Opinion:** Concurring in part by Castille - **Judges:** Flaherty, Zappala, Cappy, Castille, Nigro, Newman, Saylor - **Cited by:** 91 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Abrogated on other grounds by Commonwealth v. Cousar, 593 Pa. 204 (2007). - Negative treatments: 2 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9753478 ## How later opinions describe it (automated extraction) - holding that although informing a defendant of the basis of the charge and the statements of the witnesses was “informational,” the officer’s actions amounted to the functional equivalent of interrogation - explaining that the waiver of Miranda rights must be “the product of free and deliberate choice rather than intimidation, coercion, or deception” - rejecting per se rule that declaratory statements by police concerning charges against suspect are functional equivalent of interrogation; rather, totality of circumstances test applies - explaining that suppression is appropriate to redress Miranda violations ## Opinion text CASTILLE, Justice, concurring and dissenting. I join the Majority Opinion in every respect except for the majority’s discussion of whether Detective McDermott breached Mi randa 1 when he informed appellant of the evidence against him without first advising appellant of his constitutional rights. . In my view, the Detective’s conduct did not constitute interrogation for Miranda purposes and therefore no warnings were required at that point. Furthermore, I believe that the majority errs under Miranda and Rhode Island v. Innis, 446 U.S. 291 , 100 S.Ct. 1682 , 64 L.Ed.2d 297 (1980), in focusing exclusively upon the Detective’s undisclosed, subjective intentions to hold that the relation of accurate factual information here amounted to an “interrogation.” According *447 ly, I respectfully dissent from that portion of the Majority Opinion. 2 The majority correctly notes that interrogation under Miranda has been deemed to include not only “questioning initiated by law enforcement officials” but also the “functional equivalent” of express questioning: [TJhe term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. Innis, 446 U.S. at 301 , 100 S.Ct. 1682 (footnotes omitted) (emphasis added). The majority further acknowledges, however, that there is nothing in Innis or its progeny to suggest that mere declaratory statements by police regarding the evidence against the suspect invariably constitute the “functional equivalent” of interrogation for Miranda purposes. See Arizona v. Roberson, 486 U.S. 675, 687 , 108 S.Ct. 2093 , 100 L.Ed.2d 704 (1988) (once suspect invokes his Miranda rights in investigation of one crime, police may not interrogate him regarding another; but police “are free to inform the suspect of the facts of the second investigation as long as such communication does not constitute interrogation”). An absolute rule holding that disclosure of the evidence implicating the suspect amounts to Miranda interrogation, of course, would be unrealistic and contrary to the policies Miranda wTas designed to promote. Information about the evidence accumulated against a suspect may contribute to a knowing and intelligent exercise of judgment regarding what course of conduct to follow, ie., whether to speak with police, *448 request an attorney, remain silent, or follow some other course. Indeed, á strong argument could be made that the police should be encouraged, to communicate the basic evidence supporting the charges against the suspect. As the California Court of Appeals has observed: The entire thrust of the Miranda policy is to ensure that a defendant’s decision to confess or not is based upon a free and intelligent appraisal of his position. This appraisal may be better made if the defendant is aware of the nature and extent of evidence or information in the possession of the police. People v. Sunday, 275 Cal.App.2d 473, 480 , 79 Cal.Rptr. 752 (1969). On the other hand, to hold a suspect incommunicado for a prolonged period "without informing him of the basis for the charges could be seen, under certain circumstances, as more' coercive than the constructive interrogation recognized by Innis . Numerous Circuit Court decisions have expressly declined to extend Miranda’s reach to declaratory statements by police officers concerning the evidence against the suspect. For example, in Shedelbower v. Estelle, 885 F.2d 570 (9th Cir.1989), ce rt. denied, 498 U.S. 1092 , 111 S.Ct. 975 , 112 L.Ed.2d 1060 (1991), the defendant, a suspect in a recent rape and murder case, agreed to speak with the police without an attorney present. During the course of the interrogation, however, the defendant stated, “You know, I’m scared now. I think I should call an attorney,” and the police promptly ended the interview. As the officers began gathering their materials in preparation to leave, one of them turned to the defendant and said that another suspect in the crimes was in custody and that the rape victim had identified the defendant’s picture as one of the men who raped her and murdered her boyfriend. While it was true that the other suspect was in custody at that time, it was not true that the rape victim had seen any photographs of the defendant. In response to this information, the defendant told the police that he “had to” tell them about the crimes. He was again advised of his constitutional rights and proceeded to confess to the rape and murder. *449 Noting that the officer’s statements after the defendant requested an attorney “did not call for nor elicit an incriminating response” and “were not the type of comments that would encourage [the defendant] to make some spontaneous incriminating remark,” the Ninth Circuit held that the police comments were not the functional equivalent of Miranda interrogation. Id. at 573. More recently, in United States v. Moreno-Flores, 33 F.3d 1164 (9th Cir.1994), an FBI agent informed the defendant, after he had invoked his right to remain silent, that the Government had seized approximately 600 pounds of cocaine and that the defendant was in “serious trouble.” Citing, inter alia, Shedelboiver, supra, the Ninth Circuit held that the agent’s statements did not constitute interrogation under Miranda. Rather, the court concluded, the government agent merely “advised [the defendant] of circumstances which would contribute to an intelligent exercise of his judgment.” Moreno-Flores, 33 F.3d at 1170 n. 5. The Fourth Circuit has also recognized that “the Innis definition of interrogation is not so broad as to capture within Miranda’s reach all declaratory statements by police officers concerning the nature of the charges against the suspect and the evidence relating to those charges.” United States v. Payne, 954 F.2d 199, 202 (4th Cir.), cert. denied, 503 U.S. 988 , 112 S.Ct. 1680 , 118 L.Ed.2d 396 (1992). In Payne , the defendant invoked his right to counsel following his arrest on drug charges. While he was being transported to an office of the United States Marshal Service, an FBI agent told the defendant that law enforcement had “found a gun at his home.” The defendant responded, “1 just had it for my protection.” The defendant was ultimately charged with weapons offenses in addition to the drug charges. He argued that his statement should have been suppressed at trial on the grounds that it resulted from interrogation in violation of his Miranda rights and his Sixth Amendment right to counsel. The Fourth Circuit disagreed, noting that the agent’s statement was not one that sought or required a response. Moreover, the court noted that the defendant was not subjected to compelling *450 influences, psychological ploys, or direct questioning. Accordingly, the Payne court concluded that the police officer’s “rather innocuous statement ... did not constitute interrogation and should not result in the sanction of suppressing relevant and probative evidence.” 954 F.2d at 203 . This case law explicitly supports what was implicit in Roberson, i.e., that mere statements by the police regarding the evidence against the defendant do not necessarily implicate Miranda. For Miranda and Innis to have any principled application, the question of whether informing the suspect of the evidence against him constitutes interrogation under Miranda must depend upon the particular context in which that information is conveyed. See Nelson v. Fulcomer, 911 F.2d 928, 934 (3rd Cir.1990) (Innis inquiry is “contextual”); United States v. Mesa, 638 F.2d 582, 584 (3rd Cir.1980) (“[T]he determination whether statements are the product of such ‘custodial interrogation’ must be made on a case-by-case basis”). That is, in cases involving the communication of information about the strength of the case against the defendant, “it is necessary to examine the circumstances under which the information came to the defendant’s attention.” Wayne R. LaFave, Criminal Procedure § 6.7(c), at 561 (2d ed.1999). Here, appellant notes that he arrived at the homicide unit to be formally arrested for the murders at 1:00 p.m., and was not advised of his Miranda rights until approximately 4:50 p.m. Appellant avers that, during this time, Detective McDermott informed him of the evidence against him “with [the] intent to get him to make a statement.” Appellant’s Brief at 8. Appellant then asserts in conclusory fashion that the Detective’s statements regarding the case against him should have been preceded by Miranda warnings. Apparently adopting appellant’s simplistic reasoning, the majority concludes that appellant was “interrogated” by the disclosure of accurate factual information here and fails to discuss the circumstances of the disclosure. Instead, the majority focuses exclusively upon what it divines, from this cold record, to have been the Detective’s intention. In this regard, the majority states that it has “no doubt” that Detec *451 tive McDermott’s words were intended to be informational only. Nevertheless, the majority concludes, this does not mean that the Detective’s words and actions could not also have been reasonably likely to elicit an incriminating response from appellant and, as such, constituted the functional equivalent of express questioning for purposes of Innis . Although the majority purports to be focusing upon appellant’s “perceptions” in this regard, its discussion is confined to Detective McDermott’s testimony concerning his general approach to investigations and his subjective motivations. The majority concludes that, “when Detective McDermott explained to [a]p-pellant that he had been implicated in the shootings, telling him what statements [George] Roman [an individual who sold drugs with appellant but did not participate in the killings] and [Arisbol] Ortiz [one of appellant’s accomplices in the murders] had made to the police concerning his involvement, the Detective should have known that his comments and conduct were reasonably likely to evoke an effort on [appellant's part to defend himself and give his own version of his involvement in the crimes at issue.” Majority Op. at 404. The majority finds that the Detective “testified as much” when he stated at the suppression hearing that if appellant “want[ed] to make a statement about his action” it would be McDermott’s “intention to talk to him about the case” and when he later stated at trial that “one of the reasons” he told appellant about the evidence against him was because he was “hopeful” that appellant “would give a statement admitting to what he did.” 3 The majority then summarily concludes, as a matter of law, that Detective McDermott’s perceived subjective intention — which was never conveyed to appellant — rendered his otherwise perfectly lawful conduct in informing appellant of the damning statements that Roman and Ortiz had made about him, the functional equivalent of a custodial interrogation, which had to be preceded by Miranda warnings. *452 As a preliminary matter, it must be emphasized that appellant also testified on the question of suppression and, in point of fact, he never claimed that the Detective’s summary of the evidence against him caused him to make his initial incriminating statement. Accordingly, it appears that appellant’s actual perceptions were not as the majority divines them from its reading of the Detective’s testimony about his intentions. But even laying aside the majority’s creative reading of the Detective’s testimony to get at appellant’s perceptions, I see no error in the trial judge’s finding that there was no interrogation here. Detective McDermott’s unexceptional testimony that, as a general matter, if a suspect wants to make a statement, it would be his intention to talk to the suspect, and that he was “hopeful” this appellant would confess when the facts were laid out to him, hardly made his accurate disclosure of factual information conduct that was “reasonably likely to elicit an incriminating response.” Indeed, if such factual disclosures satisfy the Innis standard solely because of the officer’s undisclosed subjective intent, as the majority holds, then it is hard to imagine any circumstance involving a disclosure of factual information that could not be labeled “interrogation.” Any competent police officer who has arrested a suspect for a major crime is “hopeful” that the suspect will confess. However, “[ojfficers do not interrogate a suspect simply by hoping that he will incriminate himself.” Arizona v. Mauro, 481 U.S. 520, 529 , 107 S.Ct. 1931 , 95 L.Ed.2d 458 (1987). There is nothing nefarious in an officer harboring such a hope. Nor is there anything wrong with hoping that even a bald disclosure of the factual basis for the charges will lead a particular suspect to confess his involvement. Because the majority focuses on the Detective’s alleged subjective intent to the exclusion of all other’ factors — such as the suspect’s own testimony as to his own perceptions, the duration of custody, the amount and type of interaction with police while in custody, the physical surroundings, evidence that police knew the suspect was susceptible to being influenced for some subjective reason, the nature of the suspect’s response to the factual disclosures, and the suspect’s familiarity with the *453 criminal justice system-the majority has erected a per se rule which renders an officer’s subjective intent, even if undisclosed, the exclusive and determining factor in the Innis inquiry. In addition, the testimony cited by the majority simply does not amount to proof that Detective McDermott knew, or should have known, that his disclosure of accurate factual information in this case was likely to elicit an incriminating statement from this particular suspect. Detective McDermott’s statements as to his subjective hope shed no light whatsoever on appellant’s perception of the situation which, the majority acknowledges, is the relevant focus under Innis . Considering the objective circumstances under which the evidence was communicated to appellant, I do not believe that appellant was interrogated when Detective McDermott accurately informed him that Roman and Ortiz had implicated him in the Carrisquilla and Vargas murders. First and foremost is the fact, ignored by the majority, that appellant himself initiated the disclosure of the evidence against him. At the time appellant was charged with the instant crimes, he was already in custody on unrelated charges. Appellant apparently was confused as to what he was being charged with and why, and he expressed his confusion to Detective McDermott: Q. [Defense counsel]. What was your purpose in telling [appellant] what other people had said about him? A. [Detective McDermott]. He asked me why he was being charged and we answered him, that we had some evidence in that we had other statements from people implicating him. Q. He asked you why he was being charged? A. When we told him we had arrest warrants, he was concerned over why he was being charged initially. N.T. 8/2/99, at 70. Thus, in advising appellant that the murder charges were supported by information received from persons who had chosen to cooperate with law enforcement, the Detective did nothing more than answer appellant’s questions concerning the reasons for his arrest. *454 I tend to agree with the numerous courts which have held that where the defendant initiates the communications, police words and actions in response are not the functional equivalent of interrogation. For example, in United States v. Thomas, 11 F.3d 1392 (7th Cir.1993), the Seventh Circuit held that the defendant was not interrogated where the defendant asked a police officer to let her know the results of his investigation and the officer later confronted her with evidence which contradicted her alibi. The court noted that “while there may be some question as to the propriety of allowing police officers to provide unsolicited information regarding the evidence they have found, this case presents a very different situation because the defendant herself’ initiated the communication. Id. at 1397 (emphasis in original). Under these circumstances, the court held, there was no Miranda violation. A number of our sister state courts have reached similar results. In State v. Straughter, 261 Kan. 481 , 932 P.2d 387 (1997), the defendant was arrested on an outstanding juvenile warrant for auto theft. The police told the defendant that he did not have to talk to them about the auto theft or a homicide case that they were currently investigating, and the defendant asked, “What homicide?” The police explained that the defendant’s fingerprints had been found on a gun used in a homicide near his home. Noting that “under Innis , police are not subject to a blanket prohibition from saying anything about the crime under investigation to a defendant,” the Kansas Supreme Court held that the police comments in response to the defendant’s question were not improper interrogation. Id. at 394 . Similarly, in State v. Franklin, 299 S.C. 133 , 382 S.E.2d 911 (1989), a police officer arrested the defendant in connection with a homicide investigation and told him that he wanted to advise him of his Miranda rights. The defendant responded, “What do I need rights for?” and the officer replied that it appeared that a man had been beaten to death. The defendant then said, “I ain’t beat nobody. All I did was hold him while Rodney beat him.” The court held that the officer’s response to the defendant’s question did not consti *455 tute interrogation or its functional equivalent and refused to suppress the defendant’s incriminating statement. The District of Columbia Court of Appeals, in Bowler v. United States, 480 A.2d 678 (D.C.1984), likewise held that it was not interrogation under Innis for a police officer to reply to a murder defendant’s questions concerning where he was and why he was locked up that he had shot a man on Park Street. The court concluded that the officer could not have known that his words in response to the defendant’s questions were reasonably likely to elicit an incriminating reply. In addition to the fact that the Detective’s disclosures here were responsive to appellant’s own inquiry, the other circumstances corroborate, in my mind, that appellant was not “interrogated” when he made the challenged admissions. Apart from the fact of custody itself, appellant was not subjected to compelling influences likely to induce him “to speak where he would not otheiwise do so freely,” merely because he was appraised of the evidence against him. Miranda, 384 U.S. at 467, 86 S.Ct. 1602 ; see Innis, 446 U.S. at 300 , 100 S.Ct. 1682 (“ ‘Interrogation,’ as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.”). Thus, appellant was not subjected to physical violence, psychological ploys, or direct questioning-other than basic biographical queries to which Miranda does not apply. Nor was he denied food, water, or bathroom breaks. In fact, appellant testified that the police did not mistreat him in any way. See N.T. 7/30/99, at 234. The challenged statements by the Detective consisted of a few brief, intermittent, factually accurate references to the evidence against appellant over the course of several hours. Thus, appellant’s incriminating statement did not follow prolonged incommunicado detention. “This is not a case where the police carried on a lengthy harangue in the presence of the suspect.” Innis, 446 U.S. at 303 , 100 S.Ct. 1682 . Moreover, appellant began to confess less than four hours following his arrest for the instant murders, and he completed the statement at approximately 6:45 p.m., less than six hours after his arrest-thus conforming with this Court’s prophylactic *456 six-hour rule. See Commonwealth v. Washington, 547 Pa. 550 , 692 A.2d 1018, 1028 (1997) (“[A]ny statement obtained within six hours of arrest, absent coercion or other illegality, is not to be suppressed.... ”). Finally, I find it significant that the detective testified that, in addition to responding to appellant’s own query as to why he was being charged, the disclosure of the basis for the charges here was consistent with customary arrest procedures: Q. [Defense counsel]. Did you intend to question him about this incident when you brought him down from the prison and were processing him for the arrest? A. [Detective McDermott]. It is the same procedure with every defendant. If they are willing to make a statement with regard to the incident that they are being arrested for, we are certainly willing to take it down. Q. How do you find out if they are willing to give you a statement unless you ask them whether they want to give you a statement; how do you do that? A. After you tell them what they are being charged with and some of the evidence and they indicate they are willing to make a formal statement, then you warn him of his rights and proceed to take the statement. N.T. 7/30/99, at 178 (emphasis added). Under the express language of Innis excluding from the definition of “interrogation” words or actions “normally attendant to arrest and custody,” then, this is further proof that Miranda should be deemed inapplicable to Detective McDermott’s routine statements made incident to appellant’s arrest. In sum, I would not find inteiTogation to have occurred where the police, in booking a suspect, merely advised him of the charges being lodged against him and then described the evidence against him in some detail — -particularly where, as here, appellant initiated the conversation by asking the police why he was being charged. In deciding whether particular police conduct is interrogation, we must remember the purpose behind the Miranda decision: “preventing government *457 officials from using the coercive nature of confinement to extract confessions that would not be given in an unrestrained environment.” Mauro, 481 U.S. at 529-30 , 107 S.Ct. 1931 . The government actions in this case-which were pursuant to customary non-coercive arrest procedures and were intended to better inform appellant regarding the basis of the charges against him and to assist him in determining whether to cooperate with the police — do not implicate this purpose in any way. I respectfully dissent from the part of the Majority Opinion which erects a per se rule holding that the police violate Miranda whenever the disclosure of factual information is motivated, in part, by a hope, undisclosed to the suspect, that he will confess. 4 Justice NEWMAN joins this concurring and dissenting opinion. . Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). . I agree, however, with the majority’s succeeding conclusion that, even if the police did contravene Miranda , this violation did not invalidate appellant's subsequent valid waiver of rights and confession under Commonwealth v. Chacko, 500 Pa. 571 , 459 A.2d 311 (1983) and Oregon v. Elstad, 470 U.S. 298 , 105 S.Ct. 1285 , 84 L.Ed.2d 222 (1985). . The majority never explains how the Detective's trial testimony is pertinent to the question of this Court’s review of the propriety of the prior suppression ruling. Since the majority nevertheless considers it, I will also consider it. . The majority notes that its conclusion is "in keeping” with this Court's prc-Inuis holding in Commonwealth v. Mercier, 451 Pa. 211 , 302 A.2d 337 (1973). Mercier , however, is inapposite. There, the police read to the defendant a statement of another individual allegedly involved in a murder and robbery, which implicated the defendant, after he had been advised of his Miranda rights and had invoked his right to counsel. Sub judice, appellant never invoked his Miranda rights. In addition, unlike here, there is nothing in the Mercier decision to suggest that the defendant initiated a discussion of the nature of the charges against him and the evidence supporting the allegations. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9753478. Public record. Not legal advice.