# Commonwealth v. Pitts

> Superior Court of Pennsylvania · September 27, 1999 · 1999 Pa. Super. 247

URL: https://www.frixlaw.com/law-library/cases/9753863

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellant, v. Erik Thomas PITTS, AKA Erik Laurese Moore, Appellee
- **Court:** Superior Court of Pennsylvania
- **Decided:** September 27, 1999
- **Citations:** 1999 Pa. Super. 247; 740 A.2d 726; 1999 Pa. Super. LEXIS 2905
- **Precedential status:** Published
- **Opinion:** Concurring in part by Eakin
- **Judges:** Hudock, Eakin and Musmanno
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Criticized by Commonwealth v. Cosnek, 575 Pa. 411 (2003).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9753863

## Opinion text

EAKIN, J.,
concurring and dissenting:
¶ 1 ' Although I find the trend of allowing psychiatric opinions about common sense phenomenon regrettable, I cannot find the learned trial court abused its discretion in deciding to allow the opinion of Dr. Mechanick. If made relevant by ap-pellee’s testimony, the testimony is not inadmissible, and I concur in that portion of the majority’s decision which affirms this ruling. I also agree the doctor’s opinions about questions the jury ultimately must answer should not be allowed.
¶ 2 However, I cannot find appellee’s statements to be the product of custodial *735 interrogation, and dissent from that portion of the holding.
¶ 3 Custody is relevant because of its inherently coercive nature. Just as surely, if one is not aware of the custody, it cannot coerce; thus we look to the reasonable perception of the subject, not the facts known to the interrogators. Commonwealth v. Whitehead, 427 Pa.Super. 362 , 629 A.2d 142, 144 (1993). Accordingly, the existence of a warrant is totally irrelevant; unless this was known by the subject, it cannot affect the subject’s perception of custody.
¶ 4 In his own testimony, appellee doesn’t suggest he had any inkling a warrant existed, so it is of no consequence at all. The same applies to other facts the majority recites. Repeating he would not have been allowed to leave if he had tried, that he was “more than the focus” of the investigation, and that he was eventually arrested, are all irrelevant. These have nothing to do with the perception of custody at the time of the statement. That these facts are repeatedly mentioned by the suppression court and the majority is troubling, as they are clearly of no analytical consequence. If they are removed from the analysis, what is left that suggests appellant had any reasonable perception of being in custody? The only other fact in the whole of the suppression record suggested to be custodial is that one officer was standing; why this suggests custody, I do not know.
¶ 5 Appellee testified the officers told him “it would be appreciated” if he’d come to the station. The officers told him they knew there were two sides to the story of the shooting, and they just wanted his version. The officers asked appellee when it suited him to come in. When appellee chose to appear when he was not expected, he walked away without restraint. When he reappeared, it was again at a time of his choosing. 5
¶ 6 At the station, the officers simply asked if he had anything to say; he said he did not. While this qualifies as interrogation, the officers were hardly giving him the third degree. He was sitting in a juvenile division office with two doors. He stated the officers acted like gentlemen. They treated him respectfully. The entire event took only “minutes.”
¶ 7 If this is custodial, any questioning by officers at a police station must be custodial. We have consistently looked to the totality of the circumstances when determining custody, not simply the location of the interview. Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa.Super.1999). Here those circumstances involve brevity, courtesy, respect, and volun-tariness; they do not smack of coercion or custody in any way.
¶ 8 Accordingly I must respectfully dissent.
. The statement the police "demanded” he appear just isn’t supported in the record. While appellee says they told him they’d send someone for him if he didn’t come in, he’d already agreed to come in. He responded "fine.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9753863. Public record. Not legal advice.