Petition for Writ of Certiorari — Jordan Adonis Rawls, Petitioner v. Pennsylvania

[J-15-2021]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, Ju.

COMMONWEALTH OF PENNSYLVANIA, : No. 49 MAP 2020

Appellee : Appeal from the Order of the Superior

> Court at 720 MDA 2019 dated 1/10/20

: affirming judgment of sentence of the

Vv. : Lycoming County Court of Common

: Pleas, Criminal Division, at No. CP-41-

CR-89-2017 dated 4/5/19

JORDAN ADONIS RAWLS,

Appellant : ARGUED: March 10, 2021

OPINION

JUSTICE SAYLOR DECIDED: August 17, 2021

This appeal concerns whether law enforcement agents violated the Sixth

Amendment io the United States Constitution when, aithough issuing Miranda warnings

to an arrestee during an interrogation, they failed to specifically apprise him that criminal

charges already had been filed against him.

In October 2016, Appellant and Joseph Coleman perpetrated a home-invasion

robbery in Williamsport, during which Kristine Kibler and her son, Shane Wright, were

shot and killed. An accomplice, Casey Wilson, served in the role ofa getaway driver.

Police investigated and garnered evidence giving rise to probable cause to believe

that Appellant participated in the crimes, and a complaint charging him with two counts of

criminal homicide and related offenses was filed. Shortly thereafter -- after learning that

his picture was circulating in the media in association with the killings -- Appellant

voluntarily presented himself at a police station to address what he initially depicted to the

agents as the “crazy nonsense” he had heard. Transcript of Audio/Video Recording dated

Nov. 11, 2016, in Commonwealth v. Rawls, No. CR-89-2017 (C.P. Lycoming) [hereinafter,

“A/V Recording’], at 11. Appellant was immediately placed under arrest.

While shackled, Appellant was interrogated by agents for a period of five-and-onehalf hours. At the outset, the lead investigator related to Appellant his rights under

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). Among other things, he was

told of his entitlement to be represented by an attorney during questioning and warned

that anything that he said could and would be used against him in a court of law. See

A/V Recording at 5. Appellant orally waived his rights and signed a written waiver form.

He was also specifically admonished that: he was under arrest; he wasn't free to leave;

the agents were investigating the criminal homicides that had appeared in the news: and

they had probable cause to obtain a warrant for his arrest. See id. at 7. The agents,

however, did not specifically advise Appellant that charges already had been lodged

against him.

During the interrogation, Appellant initially denied knowing Coleman or Wilson and

pervasively lied about his whereabouts before, at, and after the time of the home invasion.

The agents repeatedly confronted him with contrary evidence, including videosurveillance footage showing the three co-perpetrators together in various locations, as

well as phone records documenting extensive contacts, in relevant time frames.

Ultimately, Appellant admitted that he was present at the crime scene when the robbery

and homicides were committed, but he professed to having been unarmed, claiming to

have served “basically like . . . the lookout.” /d. at 236.1

' Later that day, Appellant was taken before a magisterial district judge, who denied bail.

The Commonwealth refers to the bail proceeding as a preliminary arraignment; however,

[J-15-2021] - 2

Appellant filed a pretrial motion seeking to suppress evidence of the interview. In

one line of argumentation, he contended that, in the totality of the circumstances, his

incriminatory statements were the product of inappropriate police tactics entailing

deception, manipulation, and psychological coercion, thus invalidating his Miranda waiver

per the Fifth Amendment. See Brief in Support of Omnibus Motion dated June 1, 2018,

in Commonwealth v. Rawls, No. CR-89-2017 (C.P. Lycoming), at 8-9, 14-23. See

generally Dickerson v. U.S., 530 U.S. 428, 433-34, 120 S. Ct. 2326, 2330-31 (2000)

(discussing the due-process-related background pertaining to the voluntariness of

confessions, and the incorporation of the Fifth Amendment's self-incrimination clause).

In the second line of his presentation, which gives rise to the legal question now

before this Court, Appellant asserted that the agents violated his Sixth Amendment rights

when they failed to inform him that criminal charges already had been filed against him.

It was his position that, without such information, the waiver of his rights could not be

deemed to have been knowing and intelligent. See generally Montejo v. Louisiana, 556

U.S. 778, 786, 129 S. Ct. 2079, 2085 (2009) (discussing the knowing-voluntary-and-

intelligent litmus associated with a waiver of the Sixth Amendment right to counsel).

the docket inconsistently reflects that a preliminary arraignment was otherwise scheduled

for a later time (and Appellant ultimately waived formal arraignment).

Subsequent to the bail proceeding, the agents conducted a second, shorter interview with

Appellant. At that time, he again admitted his knowing participation in the robbery but

maintained that he hadn't entered the victims’ residence.

? The Commonwealth suggests -- and its amicus, the District Attorneys Association

argues -- that an accused’s Sixth Amendment right to counsel doesn’t attach merely on

account of the filing of criminal charges, but rather, only arises upon a preliminary

arraignment. See Brief for Amicus District Attorneys Ass’n at 10. Particularly given the

vagueness of the present record in terms of whether and when a preliminary arraignment

as such occurred, see supra note 1, and our ultimate disposition favorable to the

Commonwealth, we elect to adhere to the question presented by Appellant and selected

for review by this Court.

[J-15-2021] - 3

After conducting a hearing, the suppression court found that Appellant had

rendered a valid waiver of his right to counsel after receiving appropriate Miranda

warnings.° Regarding the totality assessment, the court found nothing to indicate that he

was incapable of understanding the rights explained to him and no evidence that the

agents threatened, tricked, or cajoled him. See Commonwealth v. Rawls, CR-89-2017,

slip op. at 5-6, 8-9 (C.P. Lycoming Aug. 13, 2018).

As to the Sixth Amendment right to counsel, the court explained that, under the

prevailing jurisprudence of the Supreme Court of the United States, when an accused

voluntarily waives his Miranda rights, he also waives his Sixth Amendment right to

counsel. See id. at 5-6 (citing, inter alia, Patterson v. Illinois, 487 U.S. 285, 293-94, 108

S. Ct. 2389, 2395-96 (1988)); accord Commonwealth v. Woodard, 634 Pa. 162, 195-97,

129 A.3d 480, 500-01 (2015) (treating a Miranda waiver as also encompassing a waiver

of the Sixth Amendment right to counsel). Regarding the present circumstances, the

court reasoned:

[Appellant] was admittedly aware that the incident [for] which

he was wanted for questioning in connection to was the

shooting death of two people. [Appeliant] arguably

understood the gravity of his arrest due to this knowledge.

Further, [Appellant] was informed of the rights afforded to him

and the consequences of abandoning such rights but chose

to waive them regardless.

Id. at 6.

At trial, the Commonwealth presented testimony from Wilson, pursuant to a plea

agreement, describing in detail his own involvement in the events, as well as that of

° When a suspect makes a statement during custodial interrogation, the burden rests

upon the government to show that the defendant knowingly, voluntarily, and intelligently

waived his rights. See, e.g., J.D.B. v. N.C., 564 U.S. 261, 269-70, 131 S. Ct. 2394, 2401

(2011) (citing, inter alia, Miranda, 384 U.S. at 444, 475-76, 86 S. Ct. at 1612, 1628-29).

[J-15-2021]- 4

Appellant and Coleman, and depicting Appellant as the shooter. Other corroborative

testimony and evidence was admitted, and an audio-visual recording of Appellant's

incriminatory interview with the agents was played for the jurors. Appellant was found

guilty of first- and second-degree murder relative to the two victims, respectively, as well

as other crimes, and he was sentenced to life in prison.

On appeal, the Superior Court adopted the suppression court's opinion, and we

allowed this appeal, limited to the following issue as framed by Appellant:

Whether police, to protect a person’s sixth amendment rights,

must do more than administer Miranda warnings when the

person is subject to police custodial interrogation and police

deliberately fail to disclose that criminal charges have already

been filed?

Commonwealth v. Rawls, ___ Pa. ___, 237 A.3d 976 (2020) (per curiam). In his

presentation to this Court, Appellant relies substantially on Patterson v. Iilinois to vindicate

“Wilson maintained that he remained outside the residence when the home invasion was

perpetrated by Appellant and Coleman. Accordingly, he testified that he didn’t see the

shootings -- but he explained that Coleman had already exited when the shots were fired

from the interior, while Appellant still remained inside. See N.T., Apr. 1, 2019, at 142.

5 In his brief, Appellant continues to suggest that various interrogation techniques

employed by the agents involved deception and coercion. We agree with the

Commonwealth, however, that, per the above formulation of the question presented, the

issue before this Court is limited to whether the Sixth Amendment imposes a per se

prohibition against custodial interrogation of an individual who has been charged with a

crime, in the absence of a disclosure that such charges have been filed. See Brief for

Appellee at 11 (explaining that Appellant “is asking the court to adopt a bright-line rule

that invalidates an otherwise valid Sixth Amendment waiver if police deliberately fail to

tell the arrestee: ‘we have filed charges against you’’).

The issue that Appellant has presented also incorporates an assertion of deliberateness,

on the agents’ part, in their failure to disclose the charges. The suppression court

rendered no factual finding of intentionality or deliberateness, however, and there is no

direct evidence of it on the record. Accordingly, and given that we view the suppression

record in the light most favorable to the Commonwealth, as the prevailing party, see,

[J-15-2021]-5

his position that disclosure of the filing of criminal charges is essential. Like the

suppression and intermediate courts, however, the Commonwealth takes the view that

Patterson militates strongly to the contrary.

In the divided opinion in Patterson, a majority of the Supreme Court of the United

States rejected the argument that -- because the defendant's Sixth Amendment right to

counsel had attached prior to the time that he was questioned by police officers -- his

uncounseled confession couldn't be knowing and intelligent, and therefore, it should be

suppressed. In this regard, the majority determined that the issuance of Miranda

warnings made the defendant sufficiently aware, in “sum and substance,” of his right to

have an attorney present during questioning and the possible consequences of foregoing

this entitlement. Patterson, 487 U.S. at 292-93, 108 S. Ct. at 2395.

In the course of the decision, the majority recognized the distinction between the

rights to counsel under the Fifth and Sixth Amendments. See generally Montejo, 556

U.S. at 786-87, 129 S. Ct. at 2085 (explaining that the Fifth Amendment provides the right

to counsel at custodial interrogations; whereas, the sometimes overlapping Sixth

Amendment right encompasses the assistance of counsel during at least certain postindictment interrogations). But, according to the Patterson majority, the Supreme Court

has defined the scope of the right to counsel “by a pragmatic assessment” of counsel’s

usefulness and the danger presented to a defendant choosing to proceed uncounseled.

€.g., Commonwealth v. Worthy, 598 Pa. 470, 477, 957 A.2d 720, 724 (2008), were our

review to turn on the deliberateness concern, Appellant simply could not prevail. Cf.

Moran v. Burbine, 475 U.S. 412, 423, 106 S. Ct. 1135, 1142 (1986) (“In light of the statecourt finding that there was no ‘conspiracy or collusion’ on the part of the police, we have

serious doubts about whether the Court of Appeals was free to conclude that their conduct

constituted ‘deliberate or reckless irresponsibility.” (citation omitted)). For this reason,

and giving Appellant the benefit of the doubt, we assume that the deliberateness aspect

is incidental to his core contention that an arrestee must be advised of pending charges

to support a valid waiver of his right to counsel under the Sixth Amendment.

[J-15-2021] - 6

Patterson, 487 U.S. at 298, 108 S. Ct. at 2398. In this respect, the Patterson majority

viewed Fifth and Sixth Amendment entitlements -- relative to post-indictment interrogation

-- as substantially overlapping.

Thus, the majority opined that warnings that are sufficient for purposes of the Fifth

Amendment decision in Miranda will also generally suffice for Sixth Amendment

purposes. See id. Along these lines, the majority explained:

The State’s decision to take an additional step and commence

formal adversarial proceedings against the accused does not

substantially increase or decrease the value of counsel to the

accused at questioning, or expand the limited purpose that an

attorney serves when the accused is questioned by

authorities. With respect to this inquiry, we do not discern a

substantial difference between the usefulness of a lawyer to a

suspect during custodial interrogation, and his value to an

accused at postindictment questioning.

Id. at 298-99, 108 S. Ct. at 2398; cf. Moran, 475 U.S. at 421-22, 106 S. Ct. at 1141

(stressing the efficacy of Miranda warnings for Fifth Amendment purposes and opining,

more broadly, that “[e]vents occurring outside of the presence of the suspect and entirely

unknown to him surely can have no bearing on the capacity to comprehend and knowingly

relinquish a constitutional right’).

In a dissent supported, for the most part, by three other Justices, Justice Stevens

took issue with the majority's decision to downplay the significance of the commencement

of formal adversary proceedings. The dissent stressed the strong presumption against

waiver of Sixth Amendment protections and opined that the filing of charges substantially

alters the relationship between the government and the accused in a way that warrants

additional protection. See id. at 306-07, 108 S. Ct. at 2402 (Stevens, J., dissenting). It

was the dissent’s position that warnings offered by an opposing party (i.e., government

representatives) cannot convey a full awareness of the disadvantages of self-

[J-15-2021]-7

representation. See id. at 307, 108 S. Ct. at 2403-04. Further, the dissent regarded the

majority's reliance on bare Miranda warnings to convey the advantages of an attorney's

presence and the downsides of foregoing counsel as “a gross understatement of the

disadvantage of proceeding without a lawyer and an understatement of what a defendant

must understand to make a knowing waiver.” /d. at 307-08, 108 S. Ct. at 2403. In sum,

the dissent portrayed the majority decision as effecting a substantial dilution of essential

Sixth Amendment protections.

Presently, Appellant's approach to Patterson is first to highlight its recognition of

differences in the application of the Fifth and Sixth Amendment rights. See Brief for

Appellant at 14 (“[T]here will be cases where a waiver which would be valid under Miranda

wiil not suffice for Sixth Amendment purposes.” (quoting Patterson, 487 U.S. at 296 n.9,

108 S. Ct. at 2397 n.9)). Appellant also points to the factual distinction between his case

and Patterson -- in that the defendant there had been apprised that criminal proceedings

had been commenced against him -- and the Supreme Court's concomitant decision to

defer from expressly deciding the question presented here. See Patterson, 487 U.S. at

295 n.8, 108 S. Ct. at 2396. The clear purport of Patterson which Appellant understates,

however, is its “pragmatic” recognition of a general rule that “whatever warnings suffice

for Miranda’s purposes will also be sufficient in the context of postindictment questioning.”

Patterson, 487 U.S. at 297, 108 S. Ct. at 2398.6

Next, Appellant overtly relies on core themes from the Patterson dissents. See

Brief for Appellant at 15, 19. It should go without saying, however, that this Court, by

virtue of the Supremacy Clause of the United States Constitution, is obliged to apply

majority decisions of the United States Supreme Court in addressing

8 It is also noteworthy that the Patterson majority characterized the desirability of informing

an accused that he has been indicted as “a matter that can be reasonably debated.”

Patterson, 487 U.S. at 295 n.8, 108 S. Ct. at 2396 n.8.

[J-15-2021] - 8

federal constitutional issues, unless and until such decisions are overruled by that

Court. See Commonwealth v. Gibson, 597 Pa. 402, 421 n.8, 951 A.2d 1110, 1121 n.8

(2008) (“[W]e fail to see the benefit of challenging principles embodied in presently

prevailing High Court decisions by way of expressions of agreement with the dissents.”).

And far from being overruled, Patterson’s general rule was roundly embraced by the

subsequent majority decision in Montejo. See Montejo, 556 U.S. at 798-99, 129 S. Ct. at

2092 (“[A]s we held in Patterson, the Miranda warnings adequately inform [a defendant]

‘of his right to have counsel present during questioning,’ and make him ‘aware of the

consequences of a decision by him to waive his Sixth Amendment rights[.]’”” (citation

omitted)).

In Patterson's aftermath, the United States Court of Appeals for the Second Circuit

overruled its previous rulings that, in order to effectively waive the right to counsel during

post-indictment questioning, an accused must have been informed of his indictment. See

U.S. v. Charria, 919 F.2d 842, 846-48 (2d Cir. 1990) (explaining that “Patterson's

pragmatic approach supersedes previous rulings of this circuit which, based on the

concept of a hierarchy of constitutional rights, called for a higher ‘knowing and intelligent’

standard for sixth amendment waivers than for other waivers”). Significantly, as stressed

by the Commonwealth, all federal circuit courts of appeals that have addressed this issue

have rejected Appellant's position.”

Indeed, the Commonwealth asserts that no jurisdiction in the United States has

ever held, after Patterson, that the Sixth Amendment requires an arrestee to be apprised

of pending charges. See Brief for Appellee at 15, 19-20. Appellant’s sole response is to

’ See U.S. v. Bryson 110 F.3d 575, 582 (8th Cir. 1997); U.S. v. Muca, 945 F.2d 88, 89

(4th Cir. 1991); U.S. v. Charria, 919 F.2d 842, 846 (2d Cir. 1990): Riddick v. Edminston,

894 F.2d 586, 590-91 (3d Cir. 1990); Norman v. Ducharme, 871 F.2d 1483, 1487 (9th Cir.

1989); Quadrini v. Clusen, 864 F.2d 577, 585-87 (7th Cir. 1989).

[J-15-2021]- 9

point to two decisions of state courts decided under their respective state constitutions.

According to Appellant, these decisions comprise “compelling[ly] analogous case

authority.” Reply Brief for Appellant at 5.

The Commonwealth, however, aptly distinguishes these decisions, explaining that

both courts understood that Patterson’s rationale “suggests that nothing more than

Miranda warnings are required during post-indictment interrogation for defendants to

make a knowing and intelligent waiver of their Sixth Amendment right to counsel.” State

v. Sanchez, 609 A.2d 400, 406 (N.J. 1992); accord State v. Liulama, 845 P.2d 1194, 1200

(Haw. 1992); see also Brief for Appellee at 20-21. Indeed, it was precisely because these

courts concluded that the prevailing Sixth Amendment jurisprudence of the Supreme

Court of the United States disapproves -- or at least militates strongly against -- a

requirement that arrestees must be apprised of pending charges that both state courts

proceeded to consider whether greater protection was accorded by their state

constitutions. See Sanchez, 609 A.2d at 407-09; Liulama, 845 P.2d at 1200-04. The

question presented to this Court, however, is expressly limited to the federal constitutional

one, and accordingly, we have no basis similarly to consider a departure from the federal

norms based on the Pennsylvania Constitution.

Separate and apart from Patterson, Appellant references a series of law review

articles in support of his position. The view of most of the commentators in this vein,

however, squarely aligns with that of the Patterson dissent. See, e.g. Eve Brenski Primus,

Disentangling Miranda and Massiah: How to Revive the Sixth Amendment Right to

Counsel as a Tool for Regulating Confession Law, 97 B.U.L. REV. 1085, 1090 (2017) (“By

failing to consider the underlying rationales for the Sixth Amendment right to counsel, the

Patterson Court imported a waiver regime that is ill suited to the purposes of that right.”),

cited in Brief for Appellant at 11-12, 16, 20. While there is no question that commentators

{J-15-2021] - 10

have been highly critical of Patterson’s rationale and holding, see, e.g., Sanchez, 609

A.2d at 404 (collecting articles), again, as a matter of federal constitutional law, it is the

prevailing view of the majority contingents of the Supreme Court of the United States that

controls.

For purposes of Fifth Amendment jurisprudence, the Supreme Court has overtly

balanced the interests of effective law enforcement against those of criminal defendants

in drawing the essential boundaries. See, e.g., Montejo, 556 U.S. at 796, 129 S. Ct. at

2091-92 (weighing the costs of according bright-line, prophylactic protections relative to

interrogations); Moran, 475 U.S. at 426, 106 S. Ct. at 1143 (explaining that admissions of

guilt resulting from Miranda waivers “are more than merely ‘desirable,’ they are essential

to society's compelling interest in finding, convicting, and punishing those who violate the

law” (citation omitted)). For example, in Moran, the Supreme Court said that, while it

would have been useful for police to advise a suspect that an attorney was attempting to

intervene on his behalf, “we have never read the Constitution to require that the police

supply a suspect with a flow of information to help him calibrate his self-interest in deciding

whether to speak or stand by his rights.” /d. at 422, 106 S. Ct. at 1141. Moreover, in light

of Patterson’s recognition of a general overlap in the rights under Miranda and the Sixth

Amendment pertaining to post-indictment interrogation, such balancing has effectively

been imported, to a substantial degree, into the Sixth Amendment arena.®

8 We recognize that the Moran Court engaged in a separate Sixth Amendment analysis

tied to the fact that the defendant’s Sixth Amendment right had not yet attached in the

matter. See Moran, 475 U.S. at 428-32, 106 S. Ct. at 1144-47. And the Patterson

majority depicted the Moran paradigm (i.e., a scenario in which a suspect wasn’t told that

a lawyer was attempting to reach him during questioning) as an exception to the general

rule accepting Miranda waivers as sufficient for Sixth Amendment purposes. See

Patterson, 487 U.S. at 296 n.9, 108 S. Ct. at 2397 n.9.

[J-15-2021] - 11

Significantly, the Supreme Court of the United States has viewed the federal

Constitution as manifesting a tolerance for a range of tactics in police-citizen interactions

that fall short of overt coercion, subject to the procurement of a valid Miranda waiver in

custodial settings.° Along these lines, the decisions have depicted a “fine line between

legitimate efforts to elicit admissions and constitutionally impermissible compulsion.”

Moran, 475 U.S. at 426, 106 S. Ct. at 1143 (citation omitted). While this Court may take

a different view when presented with an analogous claim under the Pennsylvania

Constitution, we simply are not free to do so here.

In light of the above, for purposes of the Sixth Amendment, we apply the judgment

of the Supreme Court of the United States that, “[s]o long as the accused is made aware

of the ‘dangers and disadvantages of seif-representation’ during postindictment

questioning, by use of the Miranda warnings, his waiver of his Sixth Amendment right to

counsel at such questioning is ‘knowing and intelligent.” Patterson, 487 U.S. at 300, 108

Nevertheless, it is difficult if not impossible to apprehend Patterson's approach of

generally adjudging the efficacy of a waiver of the right to counsel for Sixth Amendment

purposes according to standards arising under Miranda, in the context of post-indictment

interrogation, as an analysis separate and apart from the Supreme Court's balancing

approach associated with Miranda waivers. Accord Primus, Disentangling Miranda and

Massiah, 97 B.U.L. Rev. at 1114 (explaining that, in Patterson and Montejo, “the Supreme

Court has already conflated Fifth and Sixth Amendment doctrine in the context of

warnings and waiver’).

® See, e.g., Moran, 475 U.S. at 423-24, 106 S. Ct. at 1142 (“Granting that the ‘deliberate

or reckless’ withholding of information is objectionable as a matter of ethics, such conduct

is only relevant to the constitutional validity of a waiver if it deprives a defendant of

knowledge essential to his ability to understand the nature of his rights and the

consequences of abandoning them.”); cf. Commonwealth v. Au, 615 Pa. 330, 338-39, 42

A.3d 1002, 1008 (2012) (explaining that, in the Fourth Amendment context, the Supreme

Court of the United States “has settled on an approach allocating very modest weight to

the possibility of psychological coercion arising from a fairly wide range of police conduct

which may be regarded as being appropriate and inherent in the circumstances facilitating

the interaction’).

[J-15-2021] - 12

S. Ct. at 2399. While there are exceptional circumstances in which a Miranda waiver will

not be effective for Sixth Amendment purposes, see jd. at 296 n.8, 108 S. Ct. at 2397 n.8,

we hold that there is no per se rule, arising under this amendment, invalidating such a

waiver merely because an arrestee was not advised that charges had been filed.

The order of the Superior Court is affirmed.

Chief Justice Baer and Justices Todd, Donohue and Mundy join the opinion.

Justices Dougherty and Wecht file dissenting opinions.

[J-15-2021] - 13

[J-15-2021] [MO: Saylor, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 49 MAP 2020

Appellee : Appeal from the Order of the

: Superior Court at 720 MDA 2019

: dated January 10, 2020 Affirming

Vv. : Judgment of Sentence of the

: Lycoming County Court of Common

: Pleas, Criminal Division, at No. CP-

JORDAN ADONIS RAWLS, : 41-CR-89-2017 dated April 5, 2019

Appellant ARGUED: March 10, 2021

DISSENTING OPINION

JUSTICE WECHT DECIDED: August 17, 2021

In this matter of first impression, today’s Majority concludes that law enforcement

agents need not apprise an arrestee that they already have charged him with the crime

under investigation in order to secure from him a “knowing and intelligent” waiver of his

Sixth Amendment right to counsel prior to a custodial interrogation about that crime. |

believe that the interrogator’s failure to advise Jordan Rawls that he formally had been

named as a defendant in a criminal prosecution violated the Commonwealth’s duty to

make Rawls aware of the “full dangers and disadvantages of self-representation.”

Patterson v. Illinois, 487 U.S. 285, 299-300 (1988) (quoting Faretta v. California, 422 U.S.

806, 835 (1975)). Accordingly, | dissent.

The Sixth Amendment to the United States Constitution commands that “Ti]n all

criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of

Counsel for his defence.” U.S. Const. amend. VI. Among the “immutable principles of

justice which inhere in the very idea of free government,” the right to counsel guaranteed

by the Sixth Amendment is “a necessary requisite of due process of law.” Powell v.

Alabama, 287 U.S. 45, 71 (1932) (quoting Holden v. Hardy, 169 U.S. 366, 389 (1898)).

The Supreme Court of the United States has characterized the right to counsel as one of

“the fundamental safeguards of liberty” enshrined in the Bill of Rights, applicable to the

States pursuant to the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 341

(1963). Atits core, “[t]he purpose of the constitutional guaranty of a right to counsel is to

protect an accused from conviction resulting from his own ignorance of his legal and

constitutional rights.” Johnson v. Zerbst, 304 U.S. 458, 465 (1938). Consequently, the

right is “indispensable to the fair administration of our adversary system of criminal

justice.” Brewer v. Williams, 430 U.S. 387, 398 (1977).

It is well-settled that “the right to counsel attaches at the initiation of adversary

judicial criminal proceedings,” United States v. Gouveia, 467 U.S. 180, 189 (1984),

“whether by way of formal charge, preliminary hearing, indictment, information, or

arraignment.” Kirby v. Illinois, 406 U.S. 682, 689 (1972) (plurality). Because “the

government has committed itself to prosecute” at that point, solidifying its adverse position

vis-a-vis the accused, id., a defendant is entitled to the assistance of counsel during all

“critical stages” of the prosecution, United States v. Wade, 388 U.S. 218, 227 (1967),

including custodial interrogations that are conducted by law enforcement after the

arrestee formally has been charged with the crimes under investigation. Patterson,

487 U.S. at 290. “The presence of counsel at such critical confrontations, as at the trial

itself, operates to assure that the accused's interests will be protected consistently with

our adversary theory of criminal prosecution.” Wade, 388 U.S. at 227.

[J-15-2021] [MO: Saylor, J.]-2

Moreover, once charged with a crime, a defendant need not expressly invoke his

Sixth Amendment right to counsel in order to secure its protections. Carnley v. Cochran,

369 U.S. 506, 513 (1962). Notwithstanding this automatic conferral, as with other

constitutional rights, a defendant may waive the Sixth Amendment's prohibitions against

uncounseled, post-charging questioning by police. /d. However, any such relinquishment

must be “voluntary, knowing, and intelligent,” Montejo v. Louisiana, 556 U.S. 778, 786

(2009), which the government bears the burden of proving. Patterson, 487 U.S. at 293.

“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.” Johnson,

304 U.S. at 464,

This case raises the question of whether a waiver constitutionally is valid when

investigators withhold from an arrestee the critical fact that he already has been charged

with a crime prior to a custodial interrogation regarding that offense. To that end, this

Court must decide what quantum of information must be provided to the arrestee under

these circumstances so that a subsequent waiver by that individual of his Sixth

Amendment right to counsel can be deemed “knowing” and “intelligent.” The Majority

concludes that the government need not inform the arrestee that he has been charged

as a prerequisite to a valid waiver. The principles cited above compel me to disagree.

The Majority, on the other hand, relies principally upon the Supreme Court's

observation in Patterson that, “[a]s a general matter, ... an accused who is admonished

[J-15-2021] [MO: Saylor, J.]- 3

with the warnings prescribed” in Miranda v. Arizona, 384 U.S. 436 (1966)', “has been

sufficiently apprised of the nature of his Sixth Amendment rights, and of the

consequences of abandoning those rights, so that his waiver on this basis will be

considered a knowing and intelligent one.” Patterson, 487 U.S. at 296; accord

Commonwealth v. Woodard, 129 A.3d 480, 500-01 (Pa. 2015). Although Patterson's

general rule undoubtedly would apply to the vast majority of pre-trial Sixth Amendment

waiver cases, the Supreme Court expressly refused to consider whether that rule applied

to the particular circumstances at issue here—i.e., whether a defendant who is unaware

that he formally has been charged with a crime is in the same position to make a knowing

and intelligent waiver as a defendant who had been so informed, ceteris paribus.

Because Patterson conceded that the police had informed him of his indictment on

murder charges before he waived his Miranda rights and submitted to their questioning,

the Court declined to “address the question whether or not an accused must be told that

he has been indicted before a postindictment Sixth Amendment waiver will be valid.”

Patterson, 487 U.S. at 295 n.8.

Although the Court referred skeptically to “the desirability of so informing the

accused,” id., it did so in reference to a line of authority arising from the United States

Court of Appeals for the Second Circuit, culminating with United States v. Mohabir,

624 F.2d 1140 (2d Cir. 1980), which established unprecedented procedures for testing

l Miranda, of course, mandates that law enforcement adhere to certain safeguards

before initiating a custodial interrogation. In order to protect an individual's Fifth

Amendment privilege against compulsory self-incrimination, Miranda requires that, “[plrior

to any questioning, the person must be warned that he has a right to remain silent, that

any statement he does make may be used as evidence against him, and that he has a

right to the presence of an attorney, either retained or appointed.” 384 U.S. at 444,

[J-15-2021] [MO: Saylor, J.]-4

the validity of Sixth Amendment waivers. See, e.g., Carvey v. LeFevre, 611 F.2d 19, 22

(2d Cir. 1979) (holding that post-indictment statements that complied with Miranda but

were not preceded by any indication to the defendant that an indictment was pending

against him precluded a knowing waiver of his Sixth Amendment rights because it failed

to communicate information necessary for an indicted defendant to “appreciate the gravity

of his legal position” and “the urgency of his need for a lawyer's assistance”); United

States v. Satterfield, 558 F.2d 655, 657 (2d Cir. 1976) (finding waiver to be involuntary

where the defendant was “distraught, upset, weeping and obviously out of control at the

initial questioning, still in great need of help at the later interview”); contra United States

v. Lord, 565 F.2d 831, 839 (2d Cir. 1977) (holding that a defendant's pre-arraignment

confession was voluntary).

Drawing inspiration from the late Judge Henry Friendly’s dissent in United States

v. Massimo, 432 F.2d 324 (2d Cir. 1970), in which he questioned the sufficiency of

Miranda waivers in the Sixth Amendment context, id. at 327, the court of appeals

ultimately inferred a “higher standard” of proof for waiver of the right to counsel under the

Sixth Amendment than under the Fifth Amendment. Mohabir, 624 F.2d at 1 147-48, 1151,

1153; Carvey, 611 F.2d at 22; Satterfield, 588 F.2d at 657. To survive a challenge to the

validity of a post-indictment waiver under the court of appeals’ enhanced criteria, the

Mohabir court held that any waiver first “must be preceded by a federal judicial officer’s

explanation of the content and significance of this right.”. Mohabir, 624 F.2d at 1153.

Additionally, the court ruled that

a defendant arrested after indictment should be shown the indictment and

told by the judicial officer that he has been indicted, the significance of an

indictment, that he has a right to counsel, and the seriousness of his

[J-15-2021] [MO: Saylor, J.]- 5

situation in the event he should decide to answer questions of any law

enforcement officers in the absence of counsel.

Id.

The Mohabir court considered “[t]he advantages of such a rule [to be] clear.” /d.

By requiring warnings to be given by a judicial officer instead of an agent of the law

enforcement, the court believed that “disputes as to what occurred will be rare and legal

battles as to” the sufficiency of a defendant’s comprehension in support of a waiver finding

“will be less likely.” /d. Importantly, however, the court did not consider these directives

to be mandated by the Sixth Amendment. Rather, the court predicated its decision upon

an “exercise of [its] supervisory power.” /d. Although the court understood that its ruling

likely would resuit in a marked decrease in the number of confessions obtained from

uncounseled, indicted defendants, it accepted that consequence as “the price of defining

in a more precise way the ‘higher standard’ that must be met for waiver of the Sixth

Amendment right.” /d.?

in admonishing the Second Circuit for its exceptionally heavy-handed approach to

testing waiver and rejecting the notion that the Sixth Amendment right to counsel is

“superior” or “more difficult to waive than the Fifth Amendment counterpart,” the Patterson

e Perhaps as a sign of restraint, the Mohabir court deliberately “put off until another

day consideration of . . . simply ‘outlawing’ all statements following uncounseled waivers

by indicted defendants,” Mohabir, 624 F.2d at 1153, thus avoiding consideration of Judge

Friendly's (admittedly extraconstitutional) prophylactic remedy. See Massimo, 432 F.2d

at 327 (Friendly, J., dissenting) (“[I]n the case of a federal trial there would seem to be

much ground for outlawing all statements resulting from post-arraignment or indictment

interrogation (as distinguished from volunteered statements) in the absence of counsel

when the questioning has no objective other than to establish the guilt of the accused,

even if the Sixth Amendment does not require so much.” (emphasis added)) (citing Ricks

v. United States, 334 F.2d 964 (D.C. Cir. 1964))

[J-15-2021] [MO: Saylor, J.] - 6

Court clarified that there is no hierarchy for assessing waivers of constitutional rights.

Patterson, 487 U.S. at 297-98. Today’s Majority interprets that critique as precluding the

per se rule advanced by Rawls. Maj. Op. at 13.° But the United States Supreme Court

long has recognized the value of some bright-line rules in the Sixth Amendment context,

and Patterson acknowledged that “there will be cases where a waiver which would be

valid under Miranda will not suffice for Sixth Amendment purposes” once a person is

charged with a crime. Patterson, 487 U.S. at 296 n.9.

Significantly, the Supreme Court has held that law enforcement may not

surreptitiously use a jailhouse informant or co-defendant to elicit incriminating admissions

from a defendant because those tactics deliberately circumvent his right to have counsel

present post-indictment. Maine v. Moulton, 474 U.S. 159, 176 (1985) (addressing codefendants); United States v. Henry, 447 U.S. 264, 273-74 (1980) (addressing jailhouse

informants). Nor can police trick a defendant into agreeing to talk by withholding from

him the fact that his lawyer is trying to reach him, Patterson, 487 U.S. at 296 n.9 (citing

Moran v. Burbine, 475 U.S. 412, 424, 428 (1986)), or by questioning him while he is

isolated and in transit against the express wishes of defense counsel. Brewer, 430 U.S.

8 The Majority also finds decisions from seven of the federal courts of appeals that

have rejected Rawls’ position to be persuasive. Maj. Op. at 10 & n.7. The persuasive

value of these cases is questionable, at best, as a number of them involved defendants

who were aware that they had been criminally charged when they waived their right to

have counsel present during questioning by law enforcement. See, e.g., United States v.

Charria, 919 F.2d 842, 844 (2d Cir. 1990) (defendant was shown copy of arrest warrant

indicating that he was under indictment for conspiracy to distribute cocaine and money

laundering); Riddick v. Edminston, 894 F.2d 586, 588 (3d Cir. 1990) (defendant “signed

a waiver of extradition on a form that stated he had been charged with murder in New

Jersey”), Norman v. Ducharme, 871 F.2d 1483, 1487 (9th Cir. 1989) (defendant was

“shown a copy of his arrest warrant, which stated that an information charging first degree

murder had been filed”).

[J-15-2021] [MO: Saylor, J.]-7

at 399, 404-05. In announcing bright-line rules favoring the continuous entitlement to

counsel over investigatory strategies in these situations, the Court focused upon the

particular sleights of mind used to subvert the defendants’ awareness of their Sixth

Amendment rights, whether or not formal attorney-client relationships existed at the time.

That inquiry is applicable here. While endeavoring to secure Rawls’ waiver, the

interrogating officer, Agent Trent Peacock of the Williamsport Police Bureau, made a

series of comments that seemed to downplay Rawls’ culpability in order to overcome his

reticence to speak. See Notes of Testimony (“N.T.”), Suppression Hearing, 4/26/2018,

at 14, 36-40. For ease of reference, the relevant portions of the transcript derived from

the videotaped interrogation of Rawls, introduced at the suppression hearing as the

Commonwealth’s Exhibit-2, are reproduced below. The scene begins with Rawls’

introduction to the interrogating officers following his arrest:

Agent Peacock: You walked in here today to see us in regards

to information that’s been released in the media

as you as a person of interest, correct?

Jordan Rawls: Yes.

Agent Peacock: Okay. When you came in | placed you under

arrest.

Jordan Rawls: Okay.

Agent Peacock: Okay. And at this point you are not free to go.

Jordan Rawls: Okay.

Agent Peacock: Okay. With that in mind, for us to discuss this

incident, okay, | need to advise you of your

rights, okay. Are you good with that?

Jordan Rawls: (Inaudible).

[J-15-2021] [MO: Saylor, J.] - 8

Agent Peacock: Okay. Do you have any problem reading or

writing?

Jordan Rawls: No.

Agent Peacock: Okay. And you can slide right up here. You can

follow along. My name is Agent Peacock of the

Williamsport Bureau of Police. | wish to advise

you that you have an absolute right to remain

silent. Anything you say can and will be used

against you in a court of law.

You have the right to talk to an attorney before

and have an attorney present with you during

questioning. [If you cannot afford to hire an

attorney one will be appointed to represent you

without any charge before questioning if you so

desire. If you decide to answer any questions,

you may stop at any time you wish.

Jordan Rawls: Okay.

Agent Peacock: Do you understand these rights I've explained to

you?

Jordan Rawls: Yes.

Agent Peacock: If you understand them, | need yes and your

initials on that line. Okay. With these rights in

mind, do you wish to talk to me without having

an attorney present? Obviously, you come in

here to talk to me because you have an account

of why you're on video and - - and - -

Interrogation Tr., 11/11/2016, at 4-5.

Upon asking Rawls if he understood his rights—but before receiving his answer—

Agent Peacock suggested to Rawls that he “obviously” came to the police station to give

his “account.” /d. at 5. Rawls immediately voiced his growing uncertainty:

Jordan Rawls: I'm actually kinda confused. I’m -- I’m like more

confused.

Agent Peacock: Okay.

[J-15-2021] [MO: Saylor, J.] - 9

Jordan Rawls:

Agent Peacock:

Jordan Rawls:

Agent Peacock:

Jordan Rawls:

Agent Peacock:

Jordan Rawls:

Agent Peacock:

Jordan Rawls:

Agent Peacock:

Jordan Rawls:

Agent Peacock:

Jordan Rawls:

Agent Peacock:

Jordan Rawls:

Agent Peacock:

Jordan Rawls:

Agent Peacock:

Jordan Rawls:

Agent Peacock:

That's why | really came in.

Okay. And - - and at this point, okay --

Uh-hum.

- - you understand we are investigating a

criminal homicide by what's been released in - -

in the news?

Okay.

Okay.

All right. Yeah.

And based on the information we've received - -

Uh-hum.

- - okay, we have probable cause to obtain an

arrest warrant.

Okay.

Okay.

Okay.

Now, probable cause is not sufficient to convict

you of any crimes, okay. Probable cause is

sufficient to arrest you.

Uh-hum.

Okay. Is the burden of proof we need to arrest

you, Okay.

Uh-hum.

But in a courtroom we're gonna have to prove

beyond a reasonable doubt - -

Uh-hum.

-- that you're guilty of any crimes.

[J-15-2021] [MO: Saylor, J.] - 10

Jordan Rawls:

Agent Peacock:

Jordan Rawls:

Agent Peacock:

Jordan Rawls:

Agent Peacock:

Jordan Rawls:

Agent Peacock:

Jordan Rawls:

Agent Peacock:

Jordan Rawls:

Agent Peacock:

Jordan Rawls:

Agent Peacock:

Jordan Rawis:

Agent Peacock:

Jordan Rawls:

Agent Peacock:

Jordan Rawls:

Agent Peacock:

Id. at 5-8 (emphasis added).

Uh-hum.

Okay.

Okay.

So right now to get an arrest warrant it’s a

lower standard - -

Uh-hum.

-- than to find somebody guilty.

Right.

Okay. And based on that lower standard - -

Uh-hum.

- - there may be some middle ground here,

okay - -

Uh-hum.

-- that you’re not the guy that did it.

Uh-hum.

Okay.

Okay.

And that burden of proof is gonna be on us,

okay.

Okay.

From a beyond a reasonable doubt standard.

Uh-hum.

Okay.

[J-15-2021] [MO: Saylor, J.]- 11

In an effort to reassure Rawls, in effect bolstering his confidence to answer

questions without the assistance of counsel, Agent Peacock provided a CliffsNotes

description of the different burdens of proof for obtaining an arrest warrant versus

securing a conviction at trial. To hammer home his point that an arrest warrant requires

a lower standard of proof than a guilty verdict, Agent Peacock suggested to Rawls that

“there may be some middle ground here” between the two standards: Rawls might not be

“the guy that did it.” /d. at 7. In other words, Rawls might not have committed the doublehomicide with which he already was charged, and for which Agent Peacock immediately

took him into custody once Rawis voluntarily entered the police station. Color me

incredulous.

Rawls then appears to parrot Agent Peacock’s reference to “the guy that did it,”

still evidently unaware of the necessity of first waiving his Miranda rights:

Jordan Rawls: The guy that - - that did - -

Agent Peacock: | can’t ask you anything, okay. And | really don’t

want you to say anything at this point because

any conversation, okay - - we can’t really have

a conversation without you understanding and

being aware and waiving your rights.

Jordan Rawls: Okay.

Agent Peacock: Okay.

Jordan Rawls: Yeah. | gotit. All right. Okay.

Agent Peacock: Do you wish to talk to us, understanding that you

can stop at any time you wish, you don’t have to

answer questions if you choose not to answer

questions, okay?

Jordan Rawls: ‘Uh - -

[J-15-2021] [MO: Saylor, J.]- 12

Agent Peacock:

Jordan Rawls:

Agent Peacock:

Jordan Rawls:

Agent Peacock:

Jordan Rawls:

Agent Peacock:

Jordan Rawls:

Agent Peacock:

Jordan Rawls:

Agent Peacock:

Jordan Rawls:

Agent Peacock:

Do you want to give us your side of - - I

believe - - | believe you have a side of the

story that - - | don’t suspect that you would

have come bouncin’ in here - -

Uh-hum.

- - if you were the guy responsible for this.

Listen, | don’t got no problem answering any of

yall’s questions.

Okay.

Anything y’all, ‘uh, feel like y'all need to ask me,

go ahead and ask me. I’m - -

Okay.

I’m comfortable with it.

Okay. Then with these rights in mind do you

wish to talk to us without having an attorney

present?

Yes. Yeah.

Okay. Go ahead, yes and your initials. By

affixing your signature on this waiver you're

acknowledging that you have read and

understand the rights explained to you on this

form.

Okay.

Okay. If you understand them, go ahead and

sign right there. Okay... .

Id. at 8-9 (emphasis added). Once again, after asking Rawls if he wanted to talk—but

before Rawls could answer—Agent Peacock interjected that he did not “suspect” that

Rawls would have come “bouncin’” to the police station of his own volition if he actually

had been “responsible for” the double-homicide. /d. at 8-9.

[J-15-2021] [MO: Saylor, J.] - 13

As the foregoing interaction reveals, Rawls ultimately agreed to waive his rights

only after Agent Peacock twice responded to Rawls’ reluctance and apparent confusion

by intimating that Rawls might be innocent. In reality, Agent Peacock knew that Rawls

was the prime suspect of the Commonwealth’s investigation and had, in fact, been

charged with two counts of criminal homicide the day before. Notwithstanding Rawls’

reflexive “uh-hums’” and “okays,” on this record | am not confident that he truly understood

the “full dangers and disadvantages of” waiving his right to counsel or that those risks

adequately were explained to him. Patterson, 487 U.S. at 299-300. The problem here is

particularly acute given the interrogating officer's attempt to assuage Rawls’ concern with

an abstract description of the burdens of proof at play, which is not a requirement of

Miranda and may have been counterproductive.4

The Majority implicitly chalks up this rigmarole to run-of-the-mill police work—the

kind of “police-citizen interaction[] that fall[s] short of overt coercion” and thus is

constitutionally tolerable. Maj. Op. at 12 & n.9. Whatever minimal constitutional

obligations Agent Peacock satisfied by accurately providing Miranda warnings, he

undercut his efforts to secure a knowing and intelligent waiver of Rawls’ Sixth Amendment

4 |, for one, would not presume that a layperson in Rawls’ position meaningfully

understands the difference between “probable cause” and “reasonable doubt”—to say

nothing of the Commonwealth's burden to substantiate its charges with prima facie

evidence in order to survive a preliminary hearing—without further explanation. Indeed,

even experienced jurists occasionally falter when attempting to explain reasonable doubt

to jurors in plain English. See Cage v. Louisiana, 498 U.S. 39, 41 (1990) (per curiam)

(holding that a reasonable doubt jury instruction that “equated a reasonable doubt with

‘grave uncertainty’ and an ‘actual substantial doubt,’ . . . suggested a higher degree of

doubt than is required for acquittal” in violation of federal due process principles); accord

Sullivan v. Louisiana, 508 U.S. 275, 277 (1993). Nor is it likely that Rawls would have

waived his right to counsel had he grasped the fact that he would not have been free to

leave regardless of his candor with law enforcement from the get-go.

[J-15-2021] [MO: Saylor, J.] - 14

right to counsel by repeatedly downplaying Rawls’ criminal liability thereafter, thereby

providing him with a false sense a security about his exposure and need for a lawyer.

That fact sets this case apart from the Fourth and Fifth Amendment contexts, in which the

government has more leeway to withhold information from a suspect. Where the Sixth

Amendment is concerned, however, psychologically coercive interrogation tactics run

afoul of the Constitution when they are employed with the aim of subverting the decision

to ask for counsel. For those reasons, a bright-line rule requiring would-be interrogators

to inform defendants in clear terms that they formally had been charged with a crime when

attempting to secure waivers is needed to preserve the fundamental right to counsel from

undue pressures. Such a rule almost certainly would have sufficed to avoid the muddle

that resulted from Agent Peacock’s deception here.

While the Majority rightly acknowledges that we may take a different view if

presented with an analogous claim under our organic Charter, Maj. Op. at 12, | am

dismayed by the perpetuation of what the late Justice Arthur Goldberg long ago described

as a system of criminal justice that has “come[] to depend for its continued effectiveness

on the citizens’ abdication through unawareness of their constitutional rights.” Escobedo

v. Illinois, 378 U.S. 478, 490 (1964). The filing of formal charges categorically alters the

dynamic between the accused and his government. “It is the starting point of our whole

system of adversary criminal justice,” the moment at which “a defendant finds himself

faced with the prosecutorial forces of organized society, and immersed in the intricacies

of substantive and procedural criminal law.” Kirby, 406 U.S. at 689. If all that law

enforcement must do to effectuate a waiver of the right to counsel under the Sixth

Amendment is regurgitate Miranda warnings—even after misleading a defendant about

[J-15-2021] [MO: Saylor, J.] - 15

his legal risk—attachment would be reduced to “a mere formalism.” Id. Where does that

leave “the crucible of meaningful adversarial testing’? United States v. Cronic,

466 U.S. 648, 656 (1984).

Because the interrogation tactics employed in this case likely amplified Rawls’

confusion regarding his legal jeopardy, Miranda warnings alone were inadequate to

apprise him of the value of having an attorney present and “the consequences of

abandoning those rights.” Patterson, 487 U.S. at 296. Under these circumstances, |

cannot agree that the waiver of his right to counsel under the Sixth Amendment was

knowing or intelligent. Accordingly, | would vacate his conviction and remand for a new

trial without the use of his uncounseled statements.

[J-15-2021] [MO: Saylor, J] - 16

[J-15-2021] [MO: Saylor, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 49 MAP 2020

Appellee : Appeal from the Order of the

: Superior Court at 720 MDA 2019

: dated January 10, 2020 Affirming

V. : Judgment of Sentence of the

: Lycoming County Court of Common

: Pleas, Criminal Division, at No. CP-

JORDAN ADONIS RAWLS, : 41-CR-89-2017 dated April 5, 2019

Appellant : ARGUED: March 10, 2021

DISSENTING OPINION

JUSTICE DOUGHERTY DECIDED: August 17, 2021

| agree with the majority's conclusion there is no per se rule invalidating a waiver

of the Sixth Amendment right to counsel, by use of the Miranda’ warnings, “merely

because an arrestee was not advised that charges had been filed.” Majority Opinion at

13.2 However, the record reveals the circumstances surrounding appeiiant’s waiver in

the present case included more than the mere fact he was not advised that charges had

been filed against him. On this point, | agree with Justice Wecht that Agent Peacock’s

assuaging of appellant's culpability, in addition to his failure to advise appellant of the

charges against him, leads to the conclusion the Commonwealth failed to prove appellant

“truly understood the ‘full dangers and disadvantages of waiving his right to counsel or

' Miranda v. Arizona, 384 U.S. 436 (1966).

? | also reiterate the majority's point that “this Court may take a different view when

presented with an analogous claim under the Pennsylvania Constitution[.]” Majority

Opinion at 13.

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