Petition for Writ of Certiorari — Hubble v. Pennsylvania

Supreme Court brief1986

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IN SUPREME COURT OF THE UNITED a |

OCTOBER TEKM, 1985 NUMBER

DAVID E. HUBBLE,

Petitioner

vs.

COMMONWEALTH OF PENNSYLVANIA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

~~ SUPREME COURT OF PENNSYLVANIA

By¥:/ <4 Ly

Robert B.

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Attorney for Petitione:

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4 West Fourth Street

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TABLE OF CITATIONS

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RISDICTION , : ,oe ee we . 1

CONSTITUTIONAL PROVISIONS

[ N ae L V E D . *ee *e . . . ee 2

\TEMENT OF THE CASE .... jveve S

ASONS RELIED ON FOR

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Jf The Supreme Court -~

Sylvania, Together With

concurring And Disssenting

| Ss, Dated January 16, 1986

™

PENDI X

Opinion Of The Superior Court

f Pennsylvania, Dated July i5, 1983

APPENDIX C

Opinion Of The Court Of Common Pleas

Of Lebanon County, en banc, Dated

October a. 1980

APPENDIX D

The Order Of Judgment Of The

Supreme Court Of Pennsylvania

Dated January 16, 1986

Fifth Amendment to the United

tated Ceaeet tection -is ose wees 2

t Amendment to the United

Patee COasertetetten ic swu ss ae 2

rteenth Amendment to the

ted States Constitution ..2

ee ® ; ection 125/7(3) l

3rown v. I inios, 422 U.S

59 POd Gs + cate 6 6 aee ea eee 2/7

iwards vs. Arizona,

AS 1 S$. 477 (1981) a, Poy Ye

5 ae

LF. 20%

e v. Michael, 442 U.S.

Ps £18 AUS e? wetiencess 15

ichigan v. Mosley, 423 U.S.

9G UTSIS) eens eaeees ene 14

Miranda v. Arizona, 384 U.S.

S36 CI9OG) - pewesewees | oe 5

‘Oo, 9

regon v. Bradshaw, 462 U.S

1039, (ISOS) sxtavcke een za

regon v. Elstad, = ven

105 S.Ct. T2659 (leer essen 28, 29

iS,

Rhode Island v.

“U.S. 491, 498

Commonwealth V.

Pa.

25 Eastern

Appeal Doc

16, 1986 ,

Commonweaith v.

Hudbie,

District

ket, January

Hubble,

318 Pa. Su

A. 2d 1236

per. 76, 464,

[39Ga? «awe en

OPINIONS BELOW

The Opinion of the Supreme Court of

Pennsylvania is not reported. The

Opinion of the Superior Court of

Pennsylvania is reported at 318 Pa.

Super. 76, 464 A.2d 1236 (1983). The

Opinion cf the Honorable Judge Walter

for the Court of Common Pleas of Lebanon

County en banc, is reported at 19 Leb.

Lew. 102 (1960).

JURISDICTION

The Judgment of the Supreme Court

of Pennsylvania reversing the Order of

the Superior Court of Pennsylvania was

entered on January 16, 1986.

The jurisdiction of this Court is

invoked under 28 U.S.C. Section 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United

States Constitution provides in per-

tinent part that "no person... shal]

be compelled in any criminal’case to be

a witness against himself, nor be

deprived of life, liberty, or property,

without due process cf law

The Sixth Amendment to the United

States Constitution provides that "in

all criminal prosecutions, the accused

Shall enjoy the right .. . to have the

Assistance of Counsel for his defense."

The Fourteenth Amendment to the

United States Constitution provides in

pertinent part that "no state shal]

make or enforce any law which shall

a 5

“ivileges and immunities of

the United States; nor shall

>prive any person of life,

property, without due pro-

The present Petition is from the

Order of the Supreme Court of

Pennsylvania of January 16, 1986,

reversing the Order of the Superior

Court of Pennsylvania of July 15, 1983,

in which the Superior Court granted the

res

“

Petitioner a new trial. A complete

accurate summary of the facts pertinent

to the issue at bar is contained in th

Opinion of the Superior Court of

Pennsylvania, attached hereto as

Appendix “B". In compliance with Ru

21.1(G), a brief summary of those fact

is set forth herein.

On August 5, 1976, Claire Kepner

and her two children were robbed and

murdered in her Muncy, Lycoming County

home. An extensive investigation by

Pennsylvania State Police, which

11)

» 7

ues

ct?

the use of hypnosis and sodium

analysis of potential witnesses,

State Police to suspect

r of involvyment in the crime.

/, 1977, Petitioner was

d and subjected to a poloygraph

on by the State Police.

r was again questioned by the

lice on several dates in early

J. On July 12, 1977, Troopers

hester J. Zaremba,

ing. Petitioner was subjected

volved in the killings.

ond polygraph examination.

polygraph, Trooper Shimko

Petitioner's wife, who was in a

room, that Petitioner was pro-

Shimko

Petitioner's wife to assist

getting information from

Petitioner.

Shimko returned to the room in

which Petitioner was located, accom-

panied by Petitioner's wife. Shimko

continued questioning Petitioner unti]

approximately 2:00 p.m., at which point

Shimko became angry, stated that he knew

Petitioner was involved in the crime and

was lying, and stormed out of the room.

Shimko returned approximately fifteen

minutes later, apologized, and resumed

questioning. Shimko requested that

Petitioner give a taped statement

regarding inculpatory statements made Dy

Petitioner's brother, Robert Hubble.

Petitioner's wife spoke before

Petitioner answered, suggesting to

Petitioner that he obtain a lawyer

hefore giving any more statements.

Petitioner then requested a lawyer.

Shimko advised Petitioner that Shimko

did not believe that a public defender

would talk to Petitioner, because

Petitioner was not yet charged with a

crime. After an unsuccessful attempt to

contact a public defender, a brief

telephone conversation with his proba-

tion office, and a brief conversation

with his wife, Petitioner agreed to make

a taped statement regarding inculpatory

Statements made by his brother, Robert

Hubble. After Petitioner's first taped

Statement, Shimko told Petitioner's wife

privately, and later Petitioner, that

Shimko believed Petitioner participated

in the murders. Petitioner requested

and received permission to speak priva-

tely to his wife. Over the next hour,

Petitioner and his wife conferred;

periodically interrupted by Shimko and

Sergeant Peterson entering the room to

Speak to them. Finally, Peterson

entered the room and stated "Now Dave,

were you or weren't you in the house?".,

Petitioner broke down, admitted that

he was present, and gave a taped,

inculpatory statement. On the following

day, Petitioner telephoned Shimko to

advise him that his statements on the

12th were a lie. Petitioner went to the

barracks to retract his initial

Statement but, when confronted by the

State Police, confirmed his statements

on the 12th.

Thereafter, Petitioner was

arrested and charged with three counts

of homicide. He filed a timely motion

to suppress the statements of July 12th

and July 13th, 1977, alleging that the

Statements were unconstitutional ly

obtained. A hearing on Petitioner's

motion was had on November 11, 1977,

before the Honorable John A. Walter of

the Court of Common Pleas of Lebanon

County (a motion for a change of yore

was granted due to pervasive pre-trial

publicity in Lycoming County).

Petitioner's motion to supress the sta-

-ements was denied, Petitioner was

tried, and convicted. Petitioner filed

timely post-verdict motions challenging

the admissibility of the statements of

July 12th and July 13, 19773; which

motions were denied by the Court en banc

in an Opinion attached hereto as

Appendix "C",

Petitioner appealed to the Superior

Court of Pennsylvania. In an Opinion

filed July 15, 1983, the Superior Court

held that the case was controlled by the

decision of this Court in Edwards vs.

Arizona, 451 U.S. 477 (1981), and that

Petitioner's first taped statement on

July 12, 1977 was cbtained by the State

Police in violation of Petitioner's

constitutional right to the assistance

of counsel during questioning.

The Commonwealth's Petition for

allowance of appeal to the Supreme Court

of Pennsylvania was subsequently

granted. By Opinion and Order of

January 16, 1986, attached hereto as

Appendixes "A" and "D", the Supreme

Court of Pennsylvania reversed and

remanded. The Opinion announcing the

judgment of the Court was authored by

Justice Rolf Larsen, with two justices

joining. Justice Flaherty filed 4 con-

curring Opinion, Justice Nix a con-

curring and dissenting Opinion, and

Justices Hutchinson and Zappala separate

dissenting Opinions.

-10-

REASONS RELIED ON FOR THE ALLOWANCE OF

THE WRIT

The Opinion of the Supreme Court of

Pennsylvania filed January 16, 1986, is

in direct conflict with this Court's

holding in Edwards V. Arizona, 451 U.S.

477 (1981). If this decision of the

Supreme Court of Pennsylvania is per-

mitted to stand, Edwards will be a

nullity in the Commonwealth of

Pennsylvania, and Pennsyivania law

enforcement officers will be encouraged

to continue custodial interrogation

after the accused has asserted the right

to speak to counsel.

A brief review of the facts in

Edwards is appropriate, since the police

misconduct in that matter is less egre-

gious than in the matter at bar. Ih

Edwards, the defendant made a taped

et ee

statement presenting an alibi defense,

and then sought to “make a deal". After

an aborted attempt to contact a county

attorney, the defendant stated, "I want

an attorney before making a deal".

Police properly ceased questioning, and

took Edwards to the county jail. On the

following morning, Edwards was

approached by two detectives who iden-

tified themselves, stated that they

wanted to speak to the defendant, and

informed him of his Miranda rights. The

defendant listened to the taped state-

ment of an alleged accomplice, and then

made a statement implicating himself in

the crime.

Arizona, 384 U.S. 436 (1966) for the

proposition that an accused has a Fifth

and Fourteenth Amendment right to have

aif.

counsel present during custodial

interrogation. Edwards v. Arizona, 451

J.S. 477, 482 (1981). This Court care-

fully examined the reasoning of the

Arizona Supreme Court below, and noted

that the Arizona Court applied an erro-

neous standard for determining an effec-

tive waiver where the accused has

invoked his right to counsel. The

Arizona Court found the defendant's

Statement voluntary, but failed to care-

fully consider whether the defendant

understood his right to counsel and

intelligently and knowingly relinquished

it. In order to ensure that a workable

Standard be employed to test the volun-

tariness of the defendant's assertion of

his right to counsel, this Court

announced that:

when an accused has invoked his

right to have counsel present

during custodial interrogation,

wae

a valid waiver of that right

cannot be established by show-

ing only that he responded to

further police-initiated custo-

dial interrogation even if he

has been advised of his rights.

We further hold that an accused,

such as Edwards, having expres-

sed his desire to deal with the

police only through counsel, is

not subject to further interro-

gation by the authorities until

counsel has been available to

him, unless the accused himself

initiates further communication,

exchanges, or conversatioi.3s with

the police.

451 U.S. at 484-485.

This Court went on to explain that

the right of an accused to be free of

custodial interrogation after asserting

the right to counsel is a matter of

constitutional dimension. The Court

cited Michigan V. Mosley, 423 U.S. 96

(1975) for the proposition that the

procedural safeguards triggered by a

request to remain silent and a request

=. =

for an attorney. This Court referred

to Miranda's "rigid rule that an accu-

sed's request for an attorney is per se

an invocation of his Fifth Amendment

rights," and to the accused's

“undisputed right under Miranda to

remain silent and to be free of interro-

gation until he had consulted with a

lawyer." Edwards v. Arizona, 451 U.S.

477, 485, citing Fare v. Michael, 442

U.S. 707, 718 (1979) and Rhode Island

v. Innis, 446 U.S. 491, 498 (1980).

At the conclusion of the

discussion, the

jira

dwards Court stated:

we reaffirm these views and, to

lend them substance, emphasize

that it is inconsistent with

Miranda and its progeny for the

authorities, at their insistence,

to reinterrogate an accused in

custody if he has clearly assert-

ed his right to counsel.

451 U.S. at 485.

58s

In a strained attempt to

distinguish Edwards, the Supreme Court

of Pennsylvania cites at length the

recent decision of this Court in Smith

V. Illinois, U.S. , 105 $.Ct. 490

(1984). Petitioner is constrained to

agree with Justice Hutchinson writing in

dissent, that the majority turns Smith

on its head. In Smith, the defendant

requested the assistance of counsel, but

also made some indication of his

willingness to speak to the police.

After some conversation, the defendant

made an inculpatory statement. He then

reasserted his right to counsel, and

questioning ceased. He unsuccessfully

attempted to suppress his statement fre-

vidence at trial, was convicted, and

appealed. The Illinois Supreme Court

affirmed his conviction, noted his ambi-

guous statements after his assertion of

-16-

his right to counsel, and concluded that a

his request for counsel was "ambiguous".

This Court reversed stating that:

we hold only that, under the

clear logical force of set-

tled precedent, an accused's |

post request responses to r

further interrogation may

not be used to cast retro-

Spective doubt on the

clarity of the initial re-

quest itself. Such sub-

Sequent statements are

relevant only to the dis-

tinct question of waiver.

505 $.Ct. at 893.

The Smith Court noted that the

rigid prophylactic rule of Edwards v.

Arizona embodies a two-prong test.

First, it must be determined whether the

accused asserted his right to counsel.

if so, his responses to further

questioning are inadmissible unless he

(a) initiated further discussions with

the police, and (b) knowingly and

elfe

intelligently waived the right he had

invoked. Smith v. Illinois,

U.3. , 105 $.Ct. 490, 493 (1984).

This Court's rational for keeping

the first and second inquiries separate

is particularly compelling.

In the absence of such a bright

line prohibition, the authori-

ties, through ‘badgering'’ or

‘overreaching’ - explicit or

subtle, deliberate or uninten-

tional - might otherwise wear

down the accused and persuade

him to incriminate himself not-

withstanding his earlier request

for counsel's assistance.

(Citations deleted)

105 S.Ct. at 494-495.

In the Opinion attached hereto as

Appendix B, the Superior Court of

Pennsylvania sets forth at Pages 13-16,

the testimony of Trooper Shimko of the

Pennsylvania State Police regarding

petitioner's assertion of his right to

~18-

unsel. In the interest of brevity,

e testimony will be merely summarized.

etitioner's wife turned to petitioner

d said, “Dave, I think you better get

lawyer.” The petitioner responded, "|

nt a lawyer. Later, the petitioner

id, “I want a public defender." The

oper advised petitioner, “you can

—

whoever you want to call. I do not

lieve a public defender will come out

talk to you because you were not

rested." Petitioner responded, "I

ant to call Mr. Felix." Petitioner

tempted to contact Attorney Felix, but

unsuccessful. Petitioner telephoned

Probation Officer, spoke to him,

—

oke again to his wife, and then made

he first taped statement to the State

Despite the c r invocation of

petitioner's right to counsel, the

Pennsylvania Supreme Court concluded

that:

- « « the record does not es-

tablish that appellee ‘clear-

ly and unequivocally invoked

his right to counsel’ so as

to trigger Edwards’ prophy-

lactic prohibition.”

Commonwealth v. Hubble, _

Pa. _, Opinion announcing

the Judgment of the Court,

January 16, 1986, Appendix A

attached hereto, at Page 8.

This conclusion by the Pennsylvania

Supreme Court not only defies logic, but

is in shocking contrast to the conclu-

sion of the Superior Court of

Pennsylvania that:

The record in this case estab-

lishes beyond peradventure of a

doubt that appellant had clear-

ly and unequivocally invoked

his right to counsel and after

he had attempted, unsuccessful-

ly, to reach counsel by tele-

phone, he was questioned further

by Trooper Shimko. That he had

o%0-

responded to such police-

initiated questioning does not

establish a waiver of the right

to counsel previously invoked.

Commonweaith v. Hubble, 318

Pa. Super 76, 89, 464 A.2d

1236, 1242-1243 (1983).

Petitioner can fashion no better

language to illustrate the flawed

reasoning of the majority of the

Pennsylvania Supreme Court below than

the language chosen by Justice

Hutchinson in dissent.

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 coun-

sel before he gave his state-

ment. 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

ee ee

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.

Commonwealth v. Hubble

Pa. __, Dissenting Opinion

of Justice Hutchinson, January

16, 1986, Appendix “A”

attached hereto, at page 5.

Petitioner respectfully requests

this Court issue a Writ of Certiorari to

the Supreme Court of Pennsylvania to

correct that Court's misapplication of

this Court's holdings in Edwards v.

Arizona, 451 U.S. 477 (1981), and Smith

v. Illinois, U.S. » 190. 3:68;

490 (1984), thereby restoring the vita-

lity of those decisions in the

Commonwealth of Pennsylvania.

After an eight-page strained ex-

planation of its position that this

ots

matter is not controlled by Edwards, the

Pennsylvania Supreme Court states at

Page 16 of its Slip Opinion that:

even if Edwards applies, ‘Sup-

pression of Appellee's confes-

Sions would still be unwarrant- 4

ed because, under the circum-

Stances, Appellee (1) initiated

(further communication, ex-

changes, or conversations with

the police] and (2) knowingly

and intelligently waived the

right to counsel.'

Commonwea!th v. Hubble,

Pa. , Opinion announcing

the Judgment of the Court,

January 16, 1986, Appendix A

attached hereto, at Page 20.

The Supreme Court cites as

authority for this alternate position

the recent decision of this Court in

Oregon v. Bradshaw, 462 U.S. 1039

(1983). What the Supreme Court of

Pennsylvania altogether ignores is that

in Oregon v. Bradshaw, when the defen-

dant asserted his right to counsel

before further questioning, questioning

-/ 3-«

ceased. Later the defendant reini-

tiated the conversation, was advised by

the police officer “you do not have to

talk to me", said he understood and con-

tinued in a discussion in the course of

which the defendant agreed to take a

polygraph examination. That factual

setting, wherein the defendant himself

approached the officer to reinitiate the

discussion, is altogether unlike the

facts in the matter at bar. Here,

Trooper Shimko never ceased his interro-

gation of the petitioner, through peti-

toner's assertion of his right to

counsel, and various private discussions

with his wife. As the Superior Court

recognized, State Police troopers

entered the room several times while

petitioner was attempting to have 4 pri-

vate discussion with his wife. Finally,

Sergeant Peterson stated, “Now Dave,

«Phe

were you or weren't you in a house?" I[t

was at that point that the petitioner

broke, admitted he was present, and gave

his second taped statement. It is clear

beyond question that Petitioner did not

"“reinitiate"” contact with the State

Police, since the State Police interro-

gation simply never ceased. Exactly

that conclusion was reached by Justice

Hutchinson in dissent:

Appellee's request to speak

with his wife was not an

initiation of further

communication with police.

A request to speak to one's

Spouse, albeit in a police

Station, is not an initiation

of a commumication with the

police which they have an

opinion to‘convert into a

knowing, voluntary and

intelligent waiver of

Anppellee's Fifth Amendment

Right to counsel

Appellee did not 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.

Commonwealth_v. Hubble

Pa. , Dissenting Opinion

of Justice Hutchinson, January

16, 1986, Appendix "A"

attached hereto, at pages /-8.

Thus, since Petitioner asserted his

right to counsel, and never reinitiated

conversation with the State Police,

(since interrogation by the State Police

never ceased), Petitioner's first taped

Statement was obtained by the

Pennsylvania State Police in violation

of Petitioner's constitutional right to

have counsel present during questioning.

In a last ditch effort to affirm

Petitioner's conviction, the

Pennsy!vania Supreme Court stated that,

even if Petitioner's first taped state-

-26-

ment was unconstitutionally obtained,

its introduction into evidence at trial

was harmless error given the existence

of the second taped statement on July

i2, 1977, and Petitioner's statement on

July 13, 1977. In the course of this

analysis, however, the Pennsylvania

Supreme Court either overlooks or

ignores the plain fact that Petitioner's

second statement on July 12th and state-

ment on July 13th were direct fruits of

the first illegally obtained statement

on July 12th. Since the second and

third statements were obtained by the

State Police through exploitation of the

initially illegally obtained statement,

they too are subject to Suppression pur-

suant to the doctrine fashioned by this

Court in Wong Sun v. United States, 3/71

U.S. 471 (1963), and further defined in

Brown v. Illinios, 422 U.S. 590 (1985).

«27s

The Supreme Court of Pennsylvania

bases its "harmless error" conclusion in

the decision of this Court in Oregon v.

Elstad, - , 105 S.Ct. 1285

(1985). Unfortunately, the Pennsylvania

Supreme Court completely misses the

rationale of Elstad. In that decision,

this Court held that an initial state-

ment of the accused in custodial

interrogation without the benefit of

Miranda will be inadmissible, but will

not taint a subsequent statement made by

the accused with the benefit of Miranda.

This Court explained in Elstad that the

rationale is grounded upon the fact that

the Miranda warnings are not a matter of

constitutional protection. In the case

at bar, Petitioner was denied his

constitutional right to counsel during

questioning. Two subsequent statenents

were received by the State Police by the

= 28.

exploitation of the initial constitu-

tional illegality. Justice O'Connor's

rationale in Elstad clearly makes a

distinction between the non-

constitutional Miranda violation, and a

constitutional deprivation such as that

Suffered by petitioner.

If errors are made by law en-

forcement officers in admin-

instering the prophylactic

Miranda prodecures, they

should not breed the same

irremedial consequences as

police infringement of the

Fifth Amendment itself.

105 S.Ct. at ics.

The plain fact of the matter is

that Petitioner was subject to custodial

interrogation by the Pennsylvania State

Police which was continued in spite of

Petitioner's request for the assistance

of counsel. Petitioner was eventually

talked into making a taped statement.

After his first statement, it was

Suggested to Petitioner that he was

being untruthful. After several private

conferences with his wife, interrupted

by intermittent State Police

questioning, Petitioner was confronted

by Sergeant Peterson. Petitioner

admitted that he was in the house, and

brake down. Thereafter he gave a second

taped statement, clearly a fruit of the

first. On the following day, he con-

tacted the State Police to retract his

first and second statements. He arrived

at the State Police barracks, was

confronted by the State Police, and

reaffirmed rather than retracted the

first two statements. One must bend

logic to the breaking point to arrive at

any conclusion other than the first sta-

tement was illegal and the second and

third statements were fruits of the

a. 2

first. Under these facts, none of

Petitioner's three statements pass

onstitutional muster,

CONCLUSION

Since petitioner's initial July

1977 statement was obtained by the

Pennsylvania State Police by cont

custodial interrogation after he

asserted his right to counsel, and

petitioner's two subsequent staten

were procured by the State Police

through the exploitation of the inita

illegally obtained statement, petit

is entitled to the new trial granted

him by the Superior Court of

Pennsylvania in its Order of July 15,

1983.

Respectfully submitted,

FISHER, RICE BARVETT,

ELION & WAYNE,ZP. C.x

p 4

By: <i -x¥ 7/7

4 West 4th Robert B.- Elion

Street ff,

Williamsport y

PA 17701 A PO ba

(717) 326-2443 By: 7,7 wie “i

William P. Carluc:

~ 32.

I, ROBERT B. ELION, ESQUIRE, attor-

ney for Petitioner, David E. Hubble,

hereby certify that two (2) copies of

the within Petition For A Writ Of

Certiorari and Appendices were served

upon Brett 0. Feese, Esquire, Lycoming

County District Attorney on Monday,

March 24, 1986 by personal service.

L )

Robert 87 F ~<a re

Attorney for Petitioner

Appenoix “A"

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DIVISION

COMMONWEALTH OF ; ms. eo

PENNSYLVANIA, > EASTERN DISTRICT

Appellant : APPEAL DOCKET,1984

APPEAL FROM

JUDGMENT OF

SUPERIOR COURT

OF PENNSYLVANIA

> AT NO. 144,

Ve : PHILADELPHIA,1981,

: DATED

JULY 15, 1983

318 PA. SUPER. CT.

76, 464 A.2d 1236

(1983)

DAVID £. HUBBLE, : ARGUED:

Appellee : DECEMBER 7, 1984

OPINION ANNOUNCING THE JUDGMENT

OF THE COURT

JUSTICE ROLF LARSEN*

FILED: January 16, 1986

We granted the Commonwealth's peti-

ce ee ee ae

*This case was reassigned to this author

on September 15, 1985.

_1-4A

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yeno

yne

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vie

dis

with a knife.l These three homicides

engerdered an intensive investigation by

the Pennsylvania State Police which

culminated with the arrests of David

lee, as well as his brother,

Hubble, appe

Robert K. Hubble, and Milton

Rppellee was first interviewed by

tate troopers regarding the homicides

April of 1977 and then on several

casions in July. The events

+, The macabre happenings of this

nultiple homicide are set forth more

fully in Commonwealth v. Robert Kelsey —

pee —— Pa. Super.

-2d 784 (1983) and Commonwealth v._

Scarborough, Pa. Super. » 460

A.2d 310 ( 1983) and need not be repeated

herein, in these cases, the convictions

of appellee's co-defendants, who were

separately tried, were affirmed by the

Superior Court. This Court denied co-

defendants’ petitions for allowance of

appeal on October 12, 1983.

()

+ r

3 ¢

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oe"

7 U

> 2

ie"

that they wished to speak with each

»9ther and were given an opportunity to

SO. At approximately 5:45 p.m.,

ee gave a second taped statement

to the police, this time inculpating

nself in the homicides. Appellee and

_ +

wife were then returned to their

The following day, appellee

telephoned Trooper Shimko and informed

m that everything he had told Shimko

the previous day was a lie. However,

ipon voluntarily returning to the

yJarracks with his wife on July 13th,

appellee admitted that nis July 12th

onfession had been truthful and he

>sentially reitereated that confession.

Prior to each statement, and on several

>. SA

mot?

city

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degree. Appellee filed post-verdict

motions which were denied by the court

en bDanc. In his opinion for the court

en banc, Judge Walter stated:

Defendant first contends

that the Court erred in

failing to grant his motion to

Suppress incriminating state-

ments taken from him by the

police. Specifically, defen-

dant alleges that on July 12,

1977, he was subject to custo-

dial interrogation calculated

to evoke admissions without

being adequately informed of

his right to counsel and in

the absence of an intelligent,

informed waiver of such right.

We must first determine

whether or not defendant was

Subject to custodial interro-

gation on July 12, 1977. The

test for determining whether a

person is in custody for

Miranda purposes is whether he

"..- 18 physically deprived of

his freedom in any significant

way or is placed in a

Situation in which he reaso-

nably believes that his

freedom of action or movement

is restricted by such

interrogation .”

so 7A

comme oe alth v. Romberger, 454

19, 263, “312 A.2d 353,

355 a 973). (footnote omitted)

Slip opinion of court en banc at l-

Because appellee had been subjected

to a polygraph examination and to inter-

mittent 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

v. Brown, 4/73 Pa. 562, 375 A.2d 1260

(1977) to support its view that a reaso-

nable 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 state-

ments posed to him by various state

troopers, determined that appellee had

been "subject to police conduct calcu-

lated 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

Yount, 455 Pa. 303, 314 A.2d 242 (1974).

Thus the court held that appellee had

Deen subjected to "custodial interroga-

tion" for Miranda purposes.

The court further found that

appellee had been adequately advised of

voluntarily and intelligently waived his

right to remain silent and to have coun-

Sel present during questioning, and

that, considering the "totality of the

circumstances," his confession was the

“product of a ‘free and unconstrained

choice.'" Id. at 5-9. Accordingly, the

-3- OA

court en banc affirmed the denial of

appellee's motions as well. Appellee

appealed that denial to the Superior

Court, which reversed and remanded for a

new trial.

Initially, the Superior Court

identified that appropriate standards of

appellate review of a Suppression

court's rulings:

On review, our respon-

sibility is ‘to determine

whether the record supports

the factual findings of the

court below and the legitimacy

of the inferences and legal

conclusions drawn from those

findings.' Commonwealth vs.

Goodwin, 460 Pa. 516, 521, 333

A.2d 892, 895 (1975).

"If the suppression court

has determined that the evi-

dence is admissiodle, ‘this

Court will consider only the

evidence of the prosecution's

witnesses and so much of the

evidence for the defense as,

fairly read in the context of

the record as a whole, remains

uncontradicted.' Commonwealth

v. Kichline, 468 Pa. 264, 280,

-10- sear

361 A.2d 282, 250 (1976); see

Culombe v. Connecticut, 36/7

U.S. 568, 604, 81 S.Ct. 1860,

1878, 6 L.Ed.2d 1037 (1961)

(Opinion of Frankfurter, J.)"

Commonwealth v. Brown, 473 Pa.

562, 566, 375 A.2d 1260, 1262

(1977).

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:

The suppression court held

that Cappellee] had been sub-

jected to custodial interro-

gation on July 12, 1977 for

Miranda purposes and that the

investigation officers had

engaged in interrogation and

conduct calculated to or

likely to evoke admissions. We

agree with these legal conclu-

sions. They are based upon

the court's findings of fact

and are amply supported by the

record. See: Commonwealth yv.

Chacko, 500 Pa. 5/71, x

459 A.2d 311, 314-316 (1983

(numerous further citations

omitted). The suppression

court determined further that

[appellee] had been adequately

advised of his right to

appointive counsel and that he

had voluntarily and knowingly

waived his right to such coun-

sel. We are bound by the

court's findings of fact

where, as here, they are sup-

ported by the record.”

Id. at 1240. (citations omitted) .4

4. The Commonwealth vigorously

argues that we should reverse the dete

mination of the Superior Court,

affirming that of the suppression court

that appellee had been in custody wher

rendered the challenged statements of

July 12, 1977. The Commonwealth states:

"No formal arrest occurred nor was there

any restraint on [appellee's] freedom

associated with a formal arrest, No

coercive atmosphere was present and a

reasonable person could not have

concluded that his freedom of action wa

being restricted.” Brief for appellant

at 35. The argument is predicated pri

marily on the fact that appellee and hi

wife voluntarily went with police to

barracks, knew that they were free to

leave at any time (according to the

troopers’ testimony), and in fact were

in the process of being taken home at

one point when they decided to stay an:

eventually, confess.

While this argument is not without

merit it emphasizes the factors on the

“12-428

Nevertheless, the Superior Court

reversed and awarded appellee a new

trial based upon its understanding that

appellee's waiver of his right to coun-

cel was ineffective as a matter of law

under Edwards v. Arizona, 451 U.S. 477

(1981), reh'g denied 452 U.S. 973

(1981), and that, therefore, his con-

fession should have been suppressed.

This holding is wrong.

In Edwards, the United States

Supreme Court held that:

when an accused has invoked

his right to have counsel present

Footnote 4 continued

"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 tht

appellee had been in custody is sup-

ported by record evidence, and the

Superior Court, therefore, properly

affirmed.

-13- $34

during custodial interroga-

tion, a valid waiver of that

right cannot be established by

Showing only that he responded

to further police-initiated

custodial interrogation even

if he has been advised of his

rights. We further hold that

an accused, such as Edwards,

having expressed his desire to

deal with the police only

through counsel, is not sub-

ject to further interrogation

by the authorities until coun-

sel has been made available to

him, unless the accused him-

self initiates further com-

munication, exchanges, or

conversations with the police.

~++-We...emphasize that it is

inconsistent with Miranda and

its progeny for the authori-

ties, at their instance, to

reinterrrogate and accused in

custody if he has clearly

asserted his right to counsel.

451 U.S. at 484-85 (footnote omitted)

In reliance upon Edwards, the

Superior Court held, in the instant cas:

The record in this case

establishes beyond peradven-

ture of a doubt that after

appellant had ciear]y and une-

a Y

quivocally invoked his right

to counsel and after he had

attempted, unsuccessfully, to

reach counsel by telephone, he

was questioned further by

Trooper Shimko. That he

responded to such police-

initiated questioning does not

establish a waiver of the

right to counsel previously

invoked. "For a waiver

to be effective, the reversal

of the defendant's position

must have been inititated by

him." (citation omitted)

Here, it was not appellant

who, after asserting his

rights, indicated a desire to

waive them without further

activity on the part of the

police. Instead, it was the

police who initiated the chain

of events which culminated in

appellant's inculpatory state-

ment. This was improper.

Appellant had requested and

was entitled to have counsel

present. His statement given

in response to police

questioning and without coun-

sel should have been

Suppressed.

464 A.2d at 1242-43.

The Superior Court's reliance on

Edwards to suppress appellee's statement

is misplaced because, despite,that

-15- 3A

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 prohibi-

tion against all furhter police-

initiated conversation.” As the United

States Supreme Court recently stated:

This “rigid” prophylactic

rule [enunciated in Edwards v.

Arizona] embodies two distinct

Inquiries. First, courts must

determine whether the _accused

actua'ly invoked his right to

counsel. See, e.g., Edwards

v. Arizona, supra., 451 U.S.,

5. The United States Supreme Court

has recently determined that its deci-

sion in Edwards v. Arizona is to be

retroactively applied to cases that were

on direct appeal in the state courts at

the time of that decision on May 18,

1981. Shea v. Louisiana, J >

105 S.Ct. 1065 (1985). But cf. Solem

v. Stumes, U.S. i 104 $.¢t. 1338

(1984) (Edwards is not to be applied

retroactively to cases pending colla-

teral review after conviction is made

final following affirmance on direct

appeal.)

-16- IGA

184-1185 .

at 484-485, 101 S.Ct. at

’

» « 2econd, if

the -2ccused invoked his right

to UNS , courts may admit

ith responses to further

questioning only on finding

that he (a) initiated further

J1Scussions with the police,

and (Db) Knowingly and intelli-

gently waived the right he had

invoked. Edwards vs. Arizona,

supra, 451 U.S., at 485, 486,

Rs Be.-t01 S3Ot:. oe 1885, n.

Tnis case concerns the

threshold inquiry: whether

smith invo oked his right to

counsel in the first instan-

es. On occas ion an accused's

asserted request for counsel

may be ambiguous or equivocal

As the majority and dissenting

Ipinions below noted, courts

nave developed conflicting

standards for determining the

consequences of such

ambiguities. (citations and

Footnote omitted). we need

not resolve this conflict in

the instant case, however,

Decause the judgment of the

Lilinois Supreme Court must be

reversedq irrespective of which

Standard is applied.

The conflict among courts

1S addressed to the relevance

of alleging ambiguities or

eduivocations that either (1)

precede an accused's purported

17-99

nature of appellee's "request for coun-

sel" 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 con-

fession was rendered, appellee had been

interviewed by state troopers on several

occasion, and on each occasion expressly

waived his Miranda rights, including his

right to counsel. Appellee had also

been previously acquainted with his

arrests and convictions following guilty

plea proceedings which included full

colloquies at which appellee indicate

that he knew and understood his rights.

On July 12th, appellee was again given

9 -

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 approiximately 2:00 p.m.,

according to the testimony of Trooper

ohimko, the following occurred. Trooper

Shimko asked appellee if he would be

willing to give a tape-recorded state-

ment, 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:

ve, you can call whoever

Uav

you want to call. —T de not

De |

leve that a public defender

1 come out to talk to you

-20- Qo

because you were not arrested.

We are not accusing you of any

crime. We're talking about )

what Bob had toid you. This

is all we're concerned with at

this particular time, but you

are willing or you're able

to call whoever you wish to

call.

Notes of Testimony, Suppression Hearing,

November 11, 1977 at 114a; see also N.T.

at 1l/7a (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 2/3a-/4a. It

is also apparent that appellee was not

misled, because he next told Trooper

-21- Qe

Shimko tha

Felix,

represented

ficulties

t he

with

looked up Mr.

him

and appellee ca! |

office but

available.

Mr. McCoo]

testified

not know i

encouraged

defender's

Trooper Sh

having eve

appellee di

Was

that

rev

ae)

a former pu

) D revi

i aw The t

's telepho

this G3

nN ¢ 4 tn > 7 b

S t ITE }

QO 4 cr. My

J App

2 6} en .

d appelle

c defender

arraces. ov

to cal th

N. at 2

ed to d

Mr ’ 7, ;

] | /

nta t tne

(

je)

—

‘

umber

defender's office nor did he make or

request to make any further telephone

Celis.

Trooper Shimko again asked

appellee if he would give a taped state-

ment, 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 here? Do you want to go

home? Do you want to talk?" N.T. at

-23- Q3A

123a.

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 infor-

mation. Appellee again conferred priva-

tely with his wife for approximately

one-ha!f hour until Tooper 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, the appellee did

not invoke his right to counsel. What

appellee did request was to call a par-

ticular attorney, which he did with

-24- A

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 advise 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 cir-

cumstances leading up to and surrounding

appellee's requests to cali "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 Cuurt

-25- QA

stated

105 S.

did no

at lea

of the

ambigu

in Smith v. [llinois, supra:

Our decision 1S a narrow

one. We do not decide the

circumstances in which an

accused's request for counse’

may be characterized as ambdi-

guous or equivocal as 4a

result of events precedi!

the request or of nuances

inherent in the request

itself, nor do we decide Ut!

consequences of such ambdi-

qguity or equivocation. we

hoid only that, under the

clear logical force of

settled precedent, an accu-

sed's post-request respons

to further interrogation may

not be used to cast

retrospective doubt on

clarity of the initial

request itself. Such sub-

sequent statements are rele-

vant only to the distinct

question of waiver.

Ct. at 495. Although ti

t decide the issue, it rt

st three approaches to

consequences of

ity/equivocation in a!

“request for counse! taken /

26 BOA

jurisdictions:

Some courts have held that

all questioning must cease

upon any request for or

reference to counsel, however

equivocal or ambiguous. See

e.g. People v. Superior

Court, 15 Cal.3d ;

735-736, 125 Cal.Rptr. 798,

802,803, 542 P.2d 1390,

1394-1395 (1975), cert.

denied, 429 U.S. 816, 97

S.Ct. 58, 50 L.Ed.2d 76

(1976); Ochoa v. State, 573

S.W.2d 796, -80T

(Tex.Crim.App. 1978) Others

have attempted to define a

threshold standard of clarity

for such requets, and have

held that requests falling

Below this “threshold do not

trigger the aright to counsel.

> a. DP —— ———— a

neces e ev. Krueger,

HT 33 roe 311, 45

a Dec. 186, 189, 412 N.E.2d

537, 540 (1980) ("CA]n asser-

tion of the right to counsel

need not be explicit, une-

quivocal, or made with

er eee e clarity,” Dut

—

--—-e- er ——

indecisive or ambiguous

should constitute an invoca-

tion of the right to

counsel"), cert. denied 451

U.S. 1019, 101 S.Ct. 3009, 69

L.Ed.2d 390 (1981). still

others nave adopted a third

approach, holding that when

27-7

ee ee aaa

—_— ee eae ee

Se -—-=>

771-772 (E€A5 1979); State v.

Moulds, 105 Idaho 880, 388,

673 P.2d 1074, 1082 (App. 19

105 S$.Ct. at 493, n.3 (emphasis ade

The first approach (all

questioning must cease upon any

of counsel no matter how ambigquo

equivocal) is unduly restrictive. A

the United States Supreme Court recently

stated in the context of analyzing the

consequences of procedural Miranca

violation, “{fJar from estab!ishing

rigid rule, we direct courts to ay

one ...." Oregon v. Elstad,

238 (1985). This directive is sage

advice in deciding the circumstances in

which an accused's requests "for coun-

sel" may be characterized as ambiguous

or equivocal, and in determining the

consequences of such characterization.

To hold that every utterance of the word

“lawyer” automatically erects the

Edwards’ “cone of silence” around the

—_————

accused, thus insulating him from all

further police-iniated questioning and

communication, would be far too rigid

and would not serve the interests or

needs of justice.

Under either of the other two

approaches recognized by the United

States Supreme Court, appellee's con-

fession need not be suppressed.

Appellee initially requested “a lawyer"

or “a public defender,” but then, after

being advised that he could contact the

-29- agA

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did not ‘initiate’ a conversation with

the officer, and that therefore state-

ments by the [defendant] growing out of

that conversation should have been

excluded from evidence under Edwards V.

Arizona.” Id. at 103 $.Ct.. 2832. A

majority of the United States Supreme

yurt reversed the Oregon court and held

that Edwards did not require suppression

f the confession. Justice Rehnquist

wrote the plurality opinion (joined by

Chief Justice, Justice White and

Justice O'Connor; Justice Powell agreed

taat Edward Jid not require suppression

f the confession and filed a concurring

pinion) in which he held that Edwards

4 5 6 } bo + a i

nad Deen misappiled Decause tne aeren-

lant had indeed initiated further

ommunication, exchanges, or conver-

tion with the police,” stating

There can be no doubt ir

th.s case that in asking,

-33- 393A

"Well. what is going to hap-

pen to me now?", respondent

“initiated” further conver-

sation in the ordinary dic-

tionary sense of that word

Although ambiguous, the

respondent's question in this

case as to what was going to

happen to him evinced a

willingness and a desire for

a generalized discussion

about the investigation; it

was not merely a necessary

inquiry arising out of the

incidents of the custodial

relationship. . .. On these

facts we believe that there

was not a violation of the

Edwards rule.

Since there was no viola-

tion of the Edwards rule in

this case, the next inquiry

was "whether a valid waiver

of the right to counsel and

the right to silence had

occurred, that is, whether

the purported waiver was

knowing and intelligent and

found to be so under the

totality of the circumstan-

ces, including the necessary

fact that the accused, not

the police, reopened the

dialogue with the

authorities." Edwards v._

o., 20. 5,.6¢. Ot. 1065, 8.9.

As we have said many times

before, this determination

-34- 349A

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cif

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“

Zerbst, 304 U.S. 458 (1938) )

to determine whether a defendant's

waiver of his right to counsel was

knowing and intelligent, and would con-

sider the fact of initiation of sub-

sequent 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.

Applying Oregon v. Bradshaw to the

instant case, it iS apparent that

Edwards does not require suppression of

appellees' confessions. As set forth

more fully above, appellee initiated the

events which culminated in his con-

fessions. Slip opinion at 12-13.

Rather than return home, appellee asked

to speak in private with his wife at the

police barracks which he did at length,

despite being asked several times

whether he wanted to to home or talk.

Under the circumstances, appellee was

hardly “badgered by police officers in

the manner in which the defendant in

Edwards was"; instead, appellee

"“initiate(d] further communication,

exchanges, or conversations with the

p07 Ce.” Oreaon v. Bradshaw, supra at

Yre supra

Since appellee initiated further

communication, we must examine the tota-

lity 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 myraid of

factors including the duration and

methods of interrogation, the conditions

-37- 397A

i e >

his

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cont

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wne

right te counsel was knowingly, intelli-

gently and voluntarily waived. Id.

Based upon the totality of the cir-

cunstances, we affirm, as did the

Superior Court, the lower court's fin-

dings and conclusion that appellee

knowingly, voluntarily and intelligently

waived his right to counsel.

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 reitereated

information that appellee had previously )

given the state troopers. Following |

that statement, the troopers ended the |

interview and began to take appellee and

-39- $9

niacin

his wife home. Appellee thereafter in.

tiated the subsequent events which lead

to his second statement of July !2th a

his third statement of July 13th - his

inculpatory confessions.

The taint of any “illegality”

associated with the first statement

thoroughly dissipated by this break in

the causa! connection between the firs’

and the second and third statements.

demonstrating that appellee's con-

fessions were not the product of

exploitation of the earlier “illegality

and were uncoerced acts of free will.

Commonwealth v. Chacko, 500 Pa. 5/1,

580-82, 459 A.2d 311 (1983) (and see

cases cisted therein) (“We concluded

that appellant's statement was an act

free will sufficient to break the casu

connection between the initial, ille-

-40- Yor

gally obtained statement and his sub-

sequent statements. Any taint thus

having been purged, the latter state-

ments were properly admitted.”).

In Oregon v. Elstad, supra, the

defendant had rendered a statement that

was ruled inadmissible because of the

failure to admisister Miranda warnings,

although the statement was otherwise

voluntary and not coerced. In holding

that subsequent statements rendered

after full Miranda warnings were admi-

nistered were admissible despite the

technical illegality of the first

unwarned statement, the United States

Supreme Court stated:

Far from establishing a

rigid rule, we direct courts

to avoid one; there is no

warrant for presuming coercive

effect where the suspect's

initial inculpatory statement,

though technically in viola-

tion of Miranda, was volun-

tary. The relevant inquiry is

-41- Yf

whether, in fact, the second

statement was also voluntarily

made. As in any such inquiry,

the finder of fact must exa-

mine the surrounding cir-

cumstances and the entire

course of police conduct with

respect to the suspect in eva-

luating the voluntariness of

his statements. The fact that

a suspect chooses to spear

after being informed of nis

rights is, of course, highly

probative. We find that the

dictates of Miranda and the

goals of the Fifth Amendment

proscription against use of

compelled testimony are fully

satisfied in the circumstances

of this case by barring use of

the unwarned statement in the

case in chief. No further

purpose is served by inputing

“taint” to subsequent ‘“ate-

ments obtained pursuant to a

voluntary and knowing waiver.

We hold today that 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.

ey yaa: , SG h6 1as

—_—— ——— -_—— — =

84 L.Ed2d at 238. Thus, even assuming

arguendo that appellee's first state-

-42-

ment 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 introduc-

tion 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 sen-

tence and remanded for a new trial, we

we remand this case to the Superior

Court for disposition of appellee's

remaining allegations of error.

Mr. Justice Papadakos joins in this

Opinion.

-43- Y34

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DIVISION

COMMONWEALTH OF : NO. 25

PENNSYLVANIA, - EASTERN DISTRICT

Appellant - APPEAL DKT. 1984

APPEAL FROM

JUDGMENT OF

SUPERIOR COURT

OF PENNSYLVANIA

: AT NO. 144,

v. * PHILADELPHIA,1981,

: DATED

JULY 15, 1983

318 PA. SUPER. CT

76, 464 A.2d 1236

(1983)

AY . HUBBLE, ARGUED:

Appellee DECEMBER 7, 1984

CONCURRING OPINION

MR. JUSTICE McDERMOTT

FILED: JANUARY 16, 1986

The suppression court found two

salient facts: one, that appellant was

n custody" when questioned A the

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I join in the Opinion of Mr.

Justice Larsen.

4. Y9A

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DIVISION

COMMONWEALTH OF : NO. 25

PENNSYLVANIA, >: EASTERN DISTRICT

Appellant : APPEAL DOCKET,1984

APPEAL FROM

JUDGMENT OF

SUPERIOR COURT

OF PENNSYLVANIA

: AT NO. 144,

v. : PHILADELPHIA,1981,

: DATED

JULY 15, 1983

318 PA. SUPER. CT.

76, 464 A.2d 1236

(1983)

ID €. HUBBLE, - ARGUED:

Appellee - DECEMBER 7, 1984

CONCURRING OPINION

ILED: JANUARY 16, 1986

agree with Mr. Justice Larsen

that Superior Court must be reversed,

but I write separately because my analy-

S$1S 0 the case 15 somewhat different

from that of the Opinion Announcing the

1- QA

Judgment of the Court.

It is easy to lose sight of the

fact that the purpose of the rule arti-

culated in Miranda v. Arizona, 384 U.

436 (1966), and its progency was to pro-

tect a citizen's Fifth Amendment rights

to silence and counsel against the

overreaching of police. The United

States Supreme Court has described the

purpose of the Miranda rule as pro-

tecting against "'the overbearing com

pulsion .. . caused by inso

Suspect in police custody, '" Minnesota

v. Murphy, __ U.S. , 104 §.Ct.

1136, 1144, (1984), and this Court has

stated: “The protection of Miranda was

designed to shield an accused from the

coercive atomsphere of ‘custod

interrogation' where the accused mighi'

reasonably believe that he would

incommunicado and not be released

-2- $e

before confessing to a crime."

Commonwealth v. Ziegler, Pa. :

470 A.2d 56 (1983). In general terms,

of course, that is also the message of

Edwards v. Arizona, 451 U.S. 477 (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 predi-

cate of the Edwards case.

In the present case, the findings

of the lower courts notwithstanding,

Hubble was not in custody. Police

testimony was that just before Hubble

gave his inculpatory statement, police

told him, “If you want to go home, we'll]

s1 Af

take you home." N.T. 125. (Hubble did

not own a car.) Hubble himself

testified that the police told him that

if he made a statement, police would

allow him to go home. N.T. 326-327.

Moreover, it was only because Hubble and

his wife insisted on staying in the

that the confession of July i2, 1977

occurred at all. And when Hubble called

an advisor (his probation officer) from

the police station, the probaticn

officer, testified: "I told him that I

wasn't sure whether [the public defen-

der's office} would represent him unti]

he was arrested or not, but | told him

to call them to find out." N.T. 251.

(Emphasis added). On these facts, it

cannot be said that Hubble was in

custody. He was being ea4°°"° when

he insisted on staying in the police

facility, where he subsequently gave a

confession; just before he gave the con-

fession, police offered to take him

home; neither the police nor Hubble's

Own advisor thought that he had been

arrested; and Hubble himself testified

that after making statement he expected

to be taken home.

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

-5- $34

law, that Hubble was not in custody.

If Hubble was not in custody

time of his interrogation, then neither

Miranda nor Edwards are applicable an

the incuplatory statements were prope:

admitted into evidence.

Even if there were some quest!

to custody, however, I concur with the

view of Mr. Justice Larsen that Edwa

does not require a reversal of the

viction. Assuming that Hubble askea

: for a lawyer on July 12, 1977 and that

his statement to police on July 12,

Should be suppressed because police

questioning continued in spite of the

request for legal assistance, Hubble's

phone call to police on July 13th, und

Edwards, re-opened legitimate police

; questioning. As Edwards states, once

counsel has been requested, the sus;

is not subject to further cugtodial

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574

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DIviSION

COMMONWEALTH OF ; NO. 25

PENNSYLVANIA, - EASTERN DISTRICT

Appellant - APPEAL DOCKET,1984

APPEAL FROM

JUDGMENT OF

SUPERIOR COURT q

OF PENNSYLVANIA 4

: AT NO. 144, 4

V. : PHILADELPHIA,1981

: DATED

JULY 15, 1983

318 PA. SUPER. CT.

76, 464 A.2d 1236

(1983)

DAVID £. HUBBLE, / ARGUED: %

Appellee - DECEMBER 7, 1984

CONCURRING AND DISSENTING OPINION

NIX, C. ds FILED: JANUARY 16, 1986

| agree with the majority that

there is a legitimate question regarding

the "in custody" requirement of Miranda.

would hold, however, that appellee's

trial counsel was ineffective and direct 7

that on remand new counsel_be appointed.

-1- §8A

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 additicn, the

police used appellee's wife to help eli-

cit his confession. From the foregoing

I am convinced that the claim that

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

finding of ineffective GA. of

“ies i oe T 4 .

ertar counsel. [ would therefore remand

for the nintme + L

the appointment of new counsel to

permit consideration of these signif

tT co c . : : * °

cant constitutional issues

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MINSON,J F

Mine a . “—

-OURT OF PENNSYLVANIA

ren er ree

CRN DIVISION

EASTERN DI od Slee

APPEA| FROM

JUDGMENT OF

SUPERIOR COURT

OF PENNSYLVANIA

AT NO. 144,

JUL 983

740. FA, SUPER, CF.

76, 464 A.2d 1236

(1983)

ARGUED:

DECEMBER 7 1984

-NTING OPINION

ILED: JANUARY 16, 1986

“vee

Issent froemt he Outright rever-

1 of Superior

rity 4 r - P

yurt ordered a

Court's order. Tnat

grant of post-trial con-

-1- 616

viction 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 (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 Supreme

Court in Beckwith v. United States, 425

U.S. 341 (1976), and this Court in

Commonwealth vs. McLaughlin, 475 Pa. 97,

379 A.2d 1056 (1977), of its finding

that appellee was in fact in custody

when he requested counsel. To my mind,

the “ .mon Pleas findings on custody are

inconsistent and seem to refiect a pre-

2- @A A

presently invalid independent

[llinois,

lication of the Escobedo v.

-S. 478 (1964), focus of suspicion

St. Such independent use of that test

inconsistent with the more objective

ndards of Beckwith and McLaughlin.

also Commonwealth v. Chacko, 500 Pa.

; ae AVCE SEL CiGes). If Common

as reaffirms its factual finding of

under these currently

(>)

so 1

ropriate standards, I believe

erior Court's holding that the police

2ndment right not to incriminate him-

f is compellec by the binding

thority of the United States Supreme

ourt in Edwards, supra, and Miranda v.

zona, 384 U.S. 436 (1966). The

erpretation of those cases in the

inion announcing the judgment of the

yurt contrarily mi

]

applies .the United

iy G

States Supreme Court's decision in Smith

v. Illinois, U.S. ____,_—*‘105 S.Ct.

490 (1984) (Per curiam). Therefore, if

Common Pleas, on remand, finds appellee

gave his statement while in custody, I

am reluctantly forced to conclude, as

did Superior Court, that Edwards

requires a new trial.

The opinion announcing the judgment

of the Court states in its discussion of

appellee's right to counsel during his

interrogation that:

the record does not establish

that appellee "clearly and

unequivocally invoked his

right to counsel" so as to

trigger Edwards' prophylactic

prohibition against ail further

police-initiated conversation.

Slip op. at 8-9 (emphasis in original).

I believe that the record contains as

clear an invocation of the right to

counsel as could be envisioned. fhe

record shows that Od A. "T want

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of this case; appellee's

agree that not every vague

ice to a lawyer requires the

‘e)

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rev

eo.

S. However, that

le nas no application to the

tatement

r and unambiguous. Indeed, | dg

how appellee could have done any

nvoke the Fifth Amendment

which the United States Supreme

as seen fit to afford him, to

counsel's advice before giving an

Ody statement. The opinion

-ing the judgment of the Court

to justify its determination

1S request is not clear enough

Ke Edwards by reference to the

at appellee first called a pri-

torney, instead os the publ

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statements are relevant only to

the distinct question of waiver.

105 S. Ct. at 494-95 (emphasis in

original).

I agree that this case 1S

controlled by Smith. However, itS ana-

lysis of that case seems to me to stand

Smith on its head. Here appellee

clearly indicated that ne wanted the

assistance of counsel before he gave his

statement. Even if the subsequent cir-

cumstances 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 state-

ment 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 initia! request

for counsel 1S against both the spirit

and letter of Smith.

It seems to me equally incorrect to

state that even if appelle's request was

sufficient to snyoke his right to coun-

sel he waived it by initiating the

events that led up to his confession.

The evidence on this record 1s insuf -

ficient to establish 2 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.