# Petition for Writ of Certiorari — Hubble v. Pennsylvania > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1602%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 477 U.S. 904 ## Text ) 4 NS _ d Vaz | | ee) : ' > | SS Ww —— ae 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¥:/ Wil > r a y ¥ d A ‘ r ¥ > ‘ } ‘ hor . ve t e ; - 2 / be 5 it + | ¥ r iF | J } j 1 F 0 Q oY ,ee mw + ner ti WT r « respect- y XL Certiorari t of the — oO ED ifth and to be free ination was was the suD- tion oy the egarding a re Petitioner to counse} ating state- ce trooper ne did not 1d be willing and where WY ~~ 0 ct ( m QO n ,eF) 7 4g = ct ne + c r nore a | a" > + + rm T A eo Q cLner »>tLAal - Yr > +c Le Cu 5 | Ww n me 7 ie _~ oF) rogatior £ r } > - TABLE OF CITATIONS a BOG 6 r SS N J N J B E L 0 n oe eve @ . “eee *eeseeeee. l 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 in ero - 1 T 4 eeeeeece Grothe WRIT wecenssvdenshth N 4 S [ 8, N *ee senses ae a oe ee oe oe 3 2 Jf The Supreme Court -~ Sylvania, Together With concurring And Disssenting | Ss, Dated January 16, 1986 ™ U0 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 ny 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, We 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- Ca 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 r murdered in her Muncy, Lycoming County + home. An extensive investigation by Pennsylvania State Police, which a 11) n » 7 f co c? m& n ues cn 10 ct? the use of hypnosis and sodium analysis of potential witnesses, c n n e re 1 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. n" 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 x 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 ee 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 4s motion was had on November 11, 1977, before the Honorable John A. Walter of Ww 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 ae 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- n r( ~V nr r f 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, "| ut 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 y) 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. ee 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 7. 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, eo 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: 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 > , i rr “ / TA La A ux Ay e £ : . ; j My 1 ¢ “Nn neg yeno yne ey) a + 4 a _ 4 e ( iw J 2 4 “ , nn vie dis '_ nN vv 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. 3A LA ee rr e () Ww oF - + pa lA 4a + r 4 2 AM aA 3 ¢ + ri r VU pp e o »/ n \) e »/ oe" UD ,/ A , ra 7 U 4 J na ¥ y J 2 + 4 e 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 7 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 co-d H ¢ - r . e% a nN oF G r nN n n Nn n" U JU vised } a > r > U 2 & "Aids ot es a 7 1 f a ag o wa r, + > j den } [@) > LA 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. a. 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 9A , 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 Ve ay 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- r- 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. a 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 cr ~ Wa j th ei and appellee ca! | office but available. Mr. McCoo] testified not know i encouraged defender's Trooper Sh having eve appellee di Was that oO rev p ae) P 2) n a former pu e D , i) NO @m oO ) 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 cr ( Om je) & Cu — a) ad pe ‘ umber Ee 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. + ne 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 7 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 e y s r ' , r ae , ry _ > + n+ 7 ~ + r / ‘ ; VU r sve J iss & aan > cu ne > iu te { ; c + + A > , r ’ no J in? 5 J | 2 J , + . ‘ ~ + ‘ / > =) > ¥ “Vv / ‘ ’ r ’ . 7 . 4 | v" es ret , { a) r “A + | aqavvVe y r J airy ’ | ’ - “yr i~Vve r iwd r cta P 4 + J fs nieé ¥ wT " yY r > 4 . nr 7uU/V A 4 . AW, 4 > ) . > J + ef ~s a a es ee ee ee eS ee i err ia , j IU Iv “a ; ney st-hi rs t qoes yery ny } furtt ihe nterr ja t f ther eased. i >gquent Vo WE le be ng traf : eo ; QQ =) 4a , ; }¢ ; 4 “ > > , ; v “ar r 4 _ - “ 4 4 avy J + + . cr » 4 ‘ ++ ‘ i ‘ or a D¢ o ; s > j J 4 , + ! + r ant rite } T 4 x f r 4 2 J J 2 -V 4 r + + y 1a ’ 4 ; re = Ted ‘a a / a J , 4uU . J , 2 , r + ‘ A + / ; + ' neo oO or ; ak su“ J , 4 4a , y " 4 ¥Y ATT naw r rié 4 _ Wf 4 . - - - / , + ‘ ‘ ~ + - 4 4 Ps y , " . ‘ c ia Wa> cau y >eU ‘ 4 + ? ¥ + . y r WA =) ri , , 4 ‘ 4 , , , ; ; - ++, - ¥ ‘ ri é r 4 r [= rT +? yu ae ° J 4 / » ‘ ¥ > r > y , 20 ,* ] ‘ & t j ‘ , ian + ~s - } 4 ‘ . J J « ‘ y ‘ ‘ “ y vw 4 ’ " 4V 4 ‘ j ‘ y ian + ¥ ’ 4 , ° ¥ » r wv. ‘ 4 . 7 ‘ ‘ + b ‘ r L 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 ar 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 ed "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 ~ ba upon cif ng t Pp A >, a i ed, 9 Q a” ) ' f (=) > To Jv as r J r cA r > J J - 1 4 Tf) , , nny AWW c y Ah me ‘ r piy Wa J A nN Ww ©) ni en! > e ak 4 ef -V e “ te 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 V e U >USD cont cour yY) an ed Ww 2s 4 cl Wd ’ > ‘en, y y | A er I> ) + ) ] j cCyuue Lecter + pSCUU 4 Youn JU ‘ ’ Rigel; gs i 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 es 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 -1- YS %y aay P " nr =) nn ; i me 4 ; J , o + + 2 r - ¥ ; ¥ y QA , + a P| r Ma ‘al te rer 4 i i > 4 ~ e > Tr) 4 rt J = J 20 > ‘ : ‘ 4 T 7 r J P >> cc ye rg » + al 7 > + YA - ro 7 Q i co yn J > " 4 ro ey iy ay 4 -? J r r T r ; tal + . 4 Py = - > > 7 afi 2 ‘ J (=) ¥ a Ff ns VV ob 4 -U P > UD lutar that t ne dreadfu to go - — ae 8) > it m P=) n @m @m ot appel nome. Wd ae es n u e e 1, | n his nad inno: + > =) ~ Oo ' oO oO = i ty > — m Pe errr TS ee counsel is requested, all questioning initiated by the police should cease. The ought not however, be required to Shun prospective confessees who wish, on their own, to set the record straight. 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 T 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 fe a 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 6- SM oO Pas — VY Q Ce J 0 * h¢ eq on me - r) ? further yniver 3 sda 8 lo " + r / , f UU = nce aGgada ‘ ‘nHeon i 44 WaS Qiv randa PSS »T) ble (a nfo + y r aR 4 r) a y te rr J ec -ommun Tur t Ww jest ‘ f os repo Y ngs, sly ] “ in 7 en ft cat oO t wWaS per op jae where )e . aa nm n 2) Ss (=) e g 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 a “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 3- Goh ’ A vT f ; Qn TN HF SI/PREME J ' = ’t. . P c f Me Appeiltant IRR y AUT C JBDBL > ppeilee rece Ee eh T Aj ¢ j 7 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 ct WW T Vv [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 S 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 ) ‘e) aaa) mM . = rev sa eo. S. However, that le nas no application to the tatement a) 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 -5- iw Pe r) [= ) 17 AM r A * 2 , i=) : a | tT VU r Q Q ) “ > an? J on appe - | J 7 . y ‘ >) Q ‘ A 4 2 + , Fe va , ‘ ‘ su ‘ 4 As > 4 nf ‘ s neo r nen } ‘ _ > r) 7, A iG su - , t >C en n Oo r VU P yt S ‘ Ta ‘ ] ~£ + t- ¥ , 4 ; a. 4 P| ~~ > c eo be 4 ’ y ‘ 4 4 3 An y pT | mm n j . A , ’ 4 - I ' sr aq et ry « | a r (2 r) r _ } . i rh b ’ ene r 7 QoQ Z > . d r > r ‘ - , ry =) wne Qa r . r) V a . } cr eso > et > r , , y + ’ or 4 reo 4 ‘ ; y ‘ vs ne } ‘ ; / : Ju f so | J 4 ! aA P 4 y Ju J > ey 4 i nor Tn ah + hoe > | a na . , , ++ 4 Ff + + e ’ ~/ ? ¥ ‘i } 4 ; , iy 4 4 f ; to ra e a ere & 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. See also Oregon v. Bradshaw, 462 U.S. 1039 (1983); wyrick v. Fields, 459 U.S. 42 (1982) (per curiam), Rhode Island v. -9- 694 CCFO! Innis, 446 U.S. 291 (1980). Edwards Stated: When an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by Show- ing 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, . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communica- tion, exchanges, or conversa- tions with the police. 451 U.S. at 484-85. This record reveals that subsequent uncounseled interroga- tion was initiated, not by appellee, but by the police. The opinion announcing the judgment of the Court attempts to construct a subse juent initiation of communication by appellee by the bald Statement that: -10- 7ceA appellee initiated the events which lead to his inculpatory statement, since the prior interview had ended and appellee and Mrs. Hubble were in the process of leaving the barracks when appellee requested to stay and talk with his wife | privately. These circumstances leading up to and surrounding appellee's requests to call “a lawyer", then Mr. Felix and Mr. McCool do not present the Situation on type of police conduct condemned in Edwards v. Slip op. at 13 (emphasis in original). This conclusion iS a non-sequitur on this record. Appellee's request to speak with his wife was not an ini- tiation of further communication with the police. A request to speak to one's Spouse, albeit in a police station, is not an initiation of a communication with the police which they have an option to convert into a knowing, volun- tary and intelligent waiver of appelle's Fifth Amendment right to counsel. It i1- 291A may be true that if appellee ned asked to speak to his wife befor leaving he would not have conf later on. However, such a “but analysis does not lead to th: that he initiated the conversai the police which led to his con? On the contrary, the record stow the police came into the room whe Hubbles were speaking and direct appellee if he had committed the TROOPER SHIMKO: Sergeant Peterson and I went into the office. Again we could see that CLappellee] was visibly upset. Sergeant Peterson talked to [appellee] approx. imately five minutes and he asked a simple question, "Now Dave, were you or were: you in the house?“ And a? time Daye broke down ana that he was. R.R. at 128a. Apellee did not speak to the police. He asked speak to his wife. The police -12- 2A not y | interrupted them and directly interrogated him in the absence of coun- sel, 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 stan- dards, all interrogation must cease after that invocation. Whether he was in custody is, as stated, a factual issue which I cannot resolve on this record because of the ambiguities in Common Pleas' opinion. In order to clear up those ambiguities, it seems to me Common Pleas must demonstrate its understanding of the current legal standards for determining the fact of custody. In fairness to Common Pleas, however, I note that those Standards had not been clearly set forth 13- 93A in this Commonwealth when Common Pleas considered this case.l To aid Common Pleas in its task, I believe it is necessary to set forth the ambiguities I see in the Common Pleas' custody finding and the development of the law with respect to custody interro- gation. To my mind, the suppression court's findings appear so heavily influenced by the well-documented offi- cial concentration on appellee as a prime suspect that they imply indepen- dent application of the "focus on the investigation" test. This test was lThe delay in processing appelie's appeals after the denial of his post- trial motions is shocking to me. Appellee was convicted on November 25, 1977. He filed post-trial motions on December 12, 1977. The Court held its hearing on thse motions on August 14, 1980, and denied them on October 15, 1980. Appellee filed his notice of appeal on January 14, 1981, and Superior Court issued its order on July 15, 1983. a A originally used by the United States Supreme Court in Escobedo, Miranda's harbinger, and we adopted it in Commonwealth v. Feldman, 432 Pa. 428, 248 A.2d 1 (1968). The United States Supreme Court subsequently held in Beckwith that the focus test is not alone sufficient to invoke Miranda. One year later, we suggested that we would follow Beckwith in Commonwealth v.__ McLaughlin, 475 Pa. 97, 379 A.2d 1056 (1977). However, our subsequent cases were not as clear on the subject. See, e.qg., Commonwealth v. Horner, 497 Pa. 565, 442 A.2d 682 (1982); Commonwealth v. Meyer, 448 Pa. 297, 412 A.2d 517 (1980); Commonwealth v. Patterson, 488 Pa. 227, 412 A.2d 481 (1980). We should repudiate the implications in these later cases and expressly follow the Beckwith holding that the fogus test, -15- SA while still relevant factor in determining custody, is not indepen- dently sufficient to trigger Miranda. See Commonwealth v. Holcomb, _ Pa. —___, 498 A.2d 833 (1985) (opinion announcing the judgment of the Court). The suppression court in the instant case found that appellee was the subject of custodial interrogation. Superior. Court stated that this finding was "amply supported by the record." 318 Pa. Superior Ct. lt 83, 464 A.2d at 1240. This is true if the appropriate tests were applied by Common Pleas. However, I cannot tell on this record whether they were. Many of the cases Superior Court cited are themselves based on Escobedo's independent focus test. See, e.g., Commonwealth v. O'Shea, 456 Pa. 288, 318 A.2d 713, cert. denied, 419 Y.S. 1092 T6364 Pa. S46, 292 Ai.2@ 333 (3Sreis Commonwealth v. Simala, 434 pa. 219, 252 A.2d 575 (1969). We Should repudiate their implication that Escobedo has con- 4 tinuing independent vitality in this Commonwealth. 9 Perhaps most important, the Suppression court s findings on the issue of custody are internally incon- Sistent if not based on an independent focus test. We stated in Chacko, supra, that a person is in custody when he is physically deprived of his : freedom in any significant way or iS placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation. Id. at 473, 459 A.2d at 314 (citations omitted). The inconsistency of the Suppression court's findin under the 17. QAP Chacko standard can be seen by comparing its finidng no. 2 with nos. 13, 14 and 15. In its finding of fact no. 2 the Suppression court says: 2. [Appellee] was the subject of a custodial interrogation throughout the day of July 12, 1977. However, findings of fact nos. 13, 14 and 15 state: 13. At approximately 3:00 p.m. in the act of leaving the State Police Barracks [Appellee] said that he wanted to speak with his wife alone; they were uShered back to the same room as before and left by themselves. 14. [Appelttee] and his wife were told one hour later they would be taken home if they wished. 15. [Appellee] gave his inculpatory statement to the State Police starting at or about 5:45 p.m., only after two separate conferences with his wife alone totaling a minimum of one and one half hours. These later findings seem to imply that appellee was not in custody when -18- 78 A interviewed on July 12. See Oregon v. 4 Mathiason, 429 U.S. 492 (1977). 3 Because the suppression court had ' before it detailed evidence concerning a the police investigation's focus on | appellee before the July 12, 1977, interrogation, see R.R. 54a-68a (testimony o* Officer Shimko),2 the Escobedo test, then recently echoed in this jurisdiction by O'Shea, supra, D'Nicuola, supra, and Simala, supra, is a likely basis for its finding that appellee was the subject of custodial! interrogation. Under that test, the B focus on appellee would have been suf - ficient by itself to imply custody. The 2Trooper Shimko interviewed appellee about this case on April 7, 1977, July ’ 6, 1977, July 7, 1977, July 8, 1977, and ) July 12, 1977, Appellee provided infor- mation about his brother's involvement in the crime. The police questioned him in the station was well as during a drive around the crime scene, 19- 79 A ‘ y ‘ . * + * 4 ; J > ; ’ 2 2 jeer r t > " j ’ ; ‘ f , ; uUU ~ & 4 t+ ¥ ’ ’ -3 ee ; ‘na 4 ; + y g ’ " ¥ , > . 4 . neo : v ve + , 7 . r 7 ’ 7 : = eQvp ; an V ‘ a » -* . > 7 aa > 9 : 4 F j r , —_— * 7 - t Vv. Chacko, supra. On the contrary, the record shows arpellee was told several times that he could go home. R.R. 12la, 125a. Further, appellee's requests for coffee and permission to talk to his wife were always granted. R.R. 97a, 99a 122a, 123a, 127a. Officer , Shimko testified “Lappellee and his wife] had freedom of the barracks We weren't retaining them in any way.” Rk. Ot 1818. Indeed, the trial court itself noted these facts. See Findings of Fact nos. 13-16, R.R. at 382a-383a. Therefore, the trial court's blanket finding of “custody” is, on the surface, inconsistent with these other findings unless based on the independent focus test in Escobedo, which the United which we should put to rest _in -21- PIM Pennsylvania once and for all. Indeed, it is inconsistent with the express feelings of the police themselves, who told defendant they did not think he could get a public defender bcause he was not under arrest. Although the record thus indicates that the suppression court incorrectly applied an independent focus test to the custody issue, there is also record evi- dence which would support a finding fo custody under Beckwith and Chacko. Appellee was given a lie detector test and was questioned several times over an eight-hour period. During the suppression fearing, appellee said he was scared to ask about leaving and Stated, "I though I'd go to jail if I got up and walked away." R.R. at 322. Appellee's wife, who was also at the Station, stated she ey they could -22- #2 not leave because her husband was read his Miranda rights. R.R. at 284. In addition, the fact that appellee was a suspect remains a relevant fact in determining the custody issue. Beckwith, supra. The suppression court therefore had a right to consider the Suspicion the police had about appellee in evaluating all the conflicting evi- dence concerning his freedom to leave. Whether it incorrectly felt the focus on appellee is an independent basis in this Commonwealth for a finding of custody or merely one relevant piece of evidence which it considered in evaluating the whole suppression record for the purpose of resolving the custody issue is not apparent. Since questions involving conflicting evidence, or inferences from it, are for the finder of fact, not an appellate court, see, e.g., Commonwealth 23-93 v. Penn, 497 Pa. 232, 439 A.2d 1154, cert. denied, 456 U.S. 980 (1982); Commonwealth v. Whack, 482 Pa. 137, 393 A.2d 417 (1978); Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974), I believe we should remand for clarification on this point. Cf. dgasper v. Workmen's Compensation Appeal Board, 498 Pa. 263, 445 A.2d 1212 (1982) (court should remand cases where fin- dings of fact are internally inconsistent). In any event, Superior Court's outright reversal of the Suppression court's ruling that the evi- dence was admissible seems to me incorrect under the standard governing the scope of appellate review of rulings by a suppression court: When ruling on suppression motions, the suppression court is required to make findings of fact and conclusions of law as to whether evidence was 24- B40 obtained in violation of the defendant's constitutional rights. Pa.R.Crim.P. 323(i). Tne suppression court must determine whether the Commonwealth has established by a preponderance of the evi- dence that the challenged evi- dence is admissible. See Pa.R.Crim.P. 323(h). On review, our responsibility is "to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclu- sions drawn from those findings." Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975). If the suppression court has determined that the evidence is admissible, “this Court will consider only the evi- dence 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, 361 A.2d 282, 290 (1976); see Culombe v. Connecticut, 367 U.S. 568, 6004, 81 S.Ct. 1860, 1878, 6 L.Ed.2d 1037 (1961) (Opinion of Frankfurter, J.) -25- 8SA Commonwealth v. Brown, 473 Pa. 562, 566, 375 A.2d 1260, 1262 (1977). See also Commonwealth vs. Lark, 505 Pa. 126, 477 A.2d 857 (1984). Thus, I would remand this case to Common Pleas for consideration of this custody question. However, if compelled to reach the question of appellee's right to counsel, my reading of the United States Supreme Court's opinions in Smith and Edwards, which are binding on us, seems to me to force us to affirm the grant of a new trial, contrary to the reasoning on this issue in the opi- nion announcing the judgment of the Court. -26- 9G 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) DAVID £. HUBBLE, : ARGUED: Aopellee : DECEMBER 7, 1984 DISSENTING OPINION JUSTICE ZAPPALA FILED: JANUARY 19, 1986 I join in the dissent of Mr. Justice Hutchinson only insofar as his opinion would hold that Appellee effec- tively invoked his right to counsel and did not, thereafter, effectively revoke -1- B90 same. I disassociate myself, however, from the part of the dissenting opinion which addresses the "focus of the investigation" aspect which Mr. Justice Hutchinson perceives to be present in this case but which I cannot find under these facts and which renders this discussion unnecessary. Rather, I find that Appellee was clearly in custody when his request was made, and would, as I did in Commonwealth v. Holcomb, (J-122-1984), (Slip opinion at p. = Zappala, J. dissenting), suggest that we Save for another day any further discussion of “focus of the investiga- tion's" place in Pennsylvania jurispur- dence until such time as the facts place the issue squarely before this Court. In so doing, we shall not add to the -2- 3A confusion of the law in this area by further cluttering it with unnecessary dicta. 3-89 A Apasncuy “BR” COMMONWEALTH OF ) IN THE SUPERIOR PENNSYLVANIA, : COURT OF Appellee ) PENNSYLVANIA VS. ) DAVID —. HUBBLE, ) No. 144 Appellant : Ph‘ ladelphia, 1981 Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Divi- sion, of Lebanon County, No. 502 of 1977. BEFORE: WIEAND, BECK and MONTEMURO, Jd. OPINION BY WIEAND, J.: David E. Hubble was tried by jury and convicted of robbery, burglary, theft, criminal conspiracy and three counts of murder in the second degree.|l lFor a more detailed recitation of the facts surrounding the homicides see this Court's opinions affirming on appeal the conviction of appellant's co- conspirators: Commonwealth v. Hubble, ___Pa.Super. , A.2d = (J. 1790/82; filed April 29, 1983); Commonwealth v. Scarborough, Pa. Super, _ Cd. 1789/82; filed April 1983), 90 A On direct appeal from judgments of sen- tence, Hubble contends that his inculpa- tory statement was unlawfully obtained and should nave been suppressed. We are constrained to agree. Therefore, we reverse and remand for a new trial.@ "When ruling on suppression motions, the suppression court 1s required to make findings of fact and to whether evi- if? conclusions of law a dence was obtained in violation of the defendant's constitutionai rights. g ein view of our disposition, we need not address appellant's arguments that the trial court erred in 1) denying appellant's request for a continuance; 2) refusing a proposed voir dire question; 3) restmicting examination of a witness; 4) denying certain requested points for charge; 9) refusing appellant's motion for new trial based on after-discovered evidence; 6) denying appellant's motion for modification of sentence. We have reviewed the record and find appellant's challenge to the sufficiency of the evidence to sustain 1 the convictions totally devoig of merit. -2- G7 A “ vv “ wv vv “ 5A 3 ; 4 s ‘ > y + ‘ ’ y _ ; ’ A " ; 7 + : “i anf / ‘ Z ) im ‘ ‘ —y A vi He was returned to the barracks and at approximately 8:00 o'clock, p.m. signed written consent to allow the State Police to take his palm prints. After tnis he was taken home. On July 7, 1977, Shimko interviewed appellant's wife, Virginia Hubble, who told Shimko she thought that appellant and she had been fishing with another couple on the evening of August 5, 1976. Near the end of the interview Mrs. Hubble said that her husband had told her of having been threatened by his brother, Robert Hubble, on the evening of August 7, 1976 at the Step Inn and warned not to discuss the Kepner murders with anyone. Shimko told Mrs. Hubble that he would meet her and her husband at the Lycoming County Courthouse the next morning to discuss the August /, 1976 incident with appellant -7] - 96 A Appellant had been subpoenaed as a pro- secution witness in a burglary case against his brother and was scheduled to testify on the morning of July 8, 1977. During questioning in the District Attorney's office that morning, appellant informed Shimko that Robert had admitted involvement in the murders to him and had threatened him with death if he told anyone. Three days later Trooper Shimko again telephoned appellant and arranged to transport him to the State Police barracks for further questioning on the following morning. When Troopers Shimko and Zaremba arrived at appellant's home shortly after 9:30 o'clock, a.m., on July 12, 1977, appellant requested that his wife be permitted to accompany him, and the police agreed. At the barracks, appellant once again signed a. waiver of -8- 97A his Miranda rights and agreed to submit to another polygraph examination. The polygraph examination was completed at approximately 11:00 o'clock, a.m. Trooper Jones, who had conducted the .test, informed appellant that the test indicated he had been lying about not participating in tne murders. Trooper Jones then left appellant in his office and informed Trooper Shimko that, based on the test results, he believed appellant had been involved in the mur- ders and that Jones "had him in the house." Shimko then informed Virginia Hubble, who was in another office being questioned by Trooper Zaremba, that appellant was probably involved in the killings and requested her assistance in 7 eliciting information from appellant. Jones and Shimko had Known appellant for several year oY ss . j 20 - 4 FI - / PI > S 4 Ne > a + Ss ? > r j ‘ nr ~~ yy ad c« 4 2 nr »/ } = ] al e > > 4 or J > A r4 ; y* ¥ an? £ na , » YA eee! 77 Qe 2 2 Or J + e > ee o QyY _ J r) 2 ‘ + =) r pp ‘ } } J 4 r _ 2 ry ‘ , —+ Oo : nn J 4 NA 24 » + 4 4 > } y y i c . > > 6 A r) ld al a ~ i 4d a = + a 3 4 J iw ‘ ; ? 4 y| r Oo al ' » + “a | n + Jc ee rs cr? -~ 4 2 , © 4 , f , . > r) £2 J + 7 Wa ; ‘ 3 J - + > v s oni J Tr ii e J ~—, m r se “~ +4 } J > tn r r Ti x no nN nN t Hs c | 4 , . P 4 ; . | “?F - , . > 4 . 2 ’ 7 > ‘ 4 » 4 y + ; a" / ne " , : _ 4+ + . , ; ‘ 4 7 ’ 4 ’ “ . ; i , 3 ‘ rT Fr “Vv y Y « 4 ) y + . , - . — . + A ARG st ’ +} y QA , "v ; ¥ « 4 “ “ . ’ 7 ,. C49 + 4 ) r , 7s ’ — sc “ ‘ d« A4~# 7 - 4¢ 4 4 ’ ‘ / . . ; a aaron ‘ , J a9 , 4 + —" ; AA © , > ; 4 5 4d 8 169 ‘Vw , Commonwealth v. Banks, 429 Pa. 53, 58-59, 239 A.2d 416, 419 (1968). The Suppression court determined further that appellant had been adequately advised of his right to appointive coun- sel and that he had voluntarily and knowingly waived his right to such coun- sel. We are bound by the court's fin- dings of fact where, as here, they are Supported by the record. However, “we are of course not bound by the lower court's conclusions of law... . See e.g., Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 1/9 (1980); Commonwealth v. Webb, 4391 Pa. 329, 421 A.2d 161 (1980); Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980); Commonwealth v. Williams, 287 Pa. Super. Ct. 19, 429 A.2d 698 (1981)." Commonwealth v. Lapia, Pa. Super. , » 457 A.2d 877, 885-886 (1983). 19. fo9A a 1) - P * 54 7 A } he 7 o _ 4 ,4A , , I ' w ry Aan « ; ’ ™ Nwe A ‘ - _ - yA St ami ¥ ; ‘ 4 ‘ s r +o , / ’ ‘ ‘ ‘ r . } ‘ “ 5 r _ wf 5 Oy ? > | ? 4 ~ WV " In ? > j ¥ ‘ i. . ’ r “ , ‘ ’ } ‘ y a " iy AA 4 " r ’ ‘ 4 , Fr ¥ ‘ rT? ¥ aA % xy er Torr Na ‘ ta 4 4 Aa’ad ’ 4 r, 4nmPF 4 4 . , ’ . ‘da 4 , ry ¥ 4 > OA 4G 4 / r 4 ; ‘ 5 op , 4 : ne an y Vi that randa ~~ 3 J a ‘ 461 f 4 ? wed " “ ha y e & ) 5 nwe 2 2 onc Wa tnos a & cea re +h ad > t n Z - (=) , DD A 4/] 4 [?) m c > -ca 7 & Shimko's testimony explained the cir- cumstances Surrounding appellant's request for counsel as follows: CA. Ginny, Virginia turned to Dave and says, ‘Dave, I think you better get a lawyer.' What did he say? He said, ‘I want a lawyer.' A lawyer? ‘I want a lawyer.' Any in particular? Did he mention the public defender? He mentioned the public de- fender a short period of time later, yes. What did he say about a public defender? He said, ‘I want a public defender.’ What did you say to him when he said he wanted a lawyer or a public defender? At this particular time I! said to Dave - Excuse me, I'm sorry, When he said ‘I want a lawyer,’ -21- [1oA did you make any response to that? It's after he stated 'I want a public defender’ is when I made the response to him. What was your response? My response to Dave at this particular time was, ‘Dave, you can call whoever you want to call. I do not be- lieve that a public defend- er will come out to talk to you because you were not ar- rested. We are not accusing you of any crime. We're talking about what Bob had told you. This is all we're concerned with at this par- ticular time, but you are willing or you're able to call whoever you wish to cail.* Wnat was Mr. Hubble's re- sponse to what you said? Mr. Hubble said, ‘I want to call Mr. Felix.’ Did you give a phone book to Mr. Hubble so that he could look up the number? -22- pri THE I believe I looked the phone number up for Mr. Hubble. Of Mr. Felix? Of Mr. Felix. Did Mr. Hubble dial the phone for Mr. Felix? Yes, he did. Did he reach somebody at the other end? He talked to his secretary. Were you listening in? I was listening from my side. You heard Mr. Hubble's side of the conversation? Yes. Go ahead. What did you hear? COURT: You weren't listen- ing in on the phone? WITNESS: No, no. I was listening to the conver- sation that Mr. Hubble was having. Mr. Felix was not in at that particu- lar time. -23- 112 A BY MR. BANKS: (Continuing) Q. Pp > © Was that the impression you got? That is the impression I! received. Did Mr. Hubble say any- thing at that point? He just hung the phone up. Did he make any more calls? Yes. Why? Mr. Hubble then said he wanted to talk to his pro- bation officer, Dave McCool. He then reached into his wallet and pulled out Mr. McCool's telephone number from the inside of his wallet and called that par- ticular telephone number. This was the home phone of Mr. McCool. What time was this? Shortly before the tape was given. I would say approx- imately 10, 15 minutes be- forehand. Did he reach Mr. McCool? -24- ISA A. He reached Mr. McCool at home. Q. Did you get the impression he was talking with Dave McCool? A. Yes. Q. How long did he talk to Mr. McCool? A. A matter of two, three minutes. Q. When he hung up did Mr. Hubble say anything to you or to Trooper Zaremba? A. Mr. Hubble then conferred with Ginny for a period of between three to five min- utes, that range. I again asked Mr. Hubble at that time whether or not he wiSsh- ed to give me a taped state- ment. At that time he stated he would." The United States Supreme Court held in Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), reh. denied, 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981), "that when an accused has invoked his _25- (4A right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by Showing only that he responded to fur- ther police-initiated custodial interro- gation even if he has been advised of his rights." It held further “that an accused, . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself ini- iates further communication exchanges or conversations with the police." (footnote omitted) (emphasis supplied). See also: Wyrick v. Fields, Fe Pe , ___, 103 S.Ct. 394, __, 74 L.Ed.2d 214, 217 (1982). The defendant in Edwards had been arrested at his home on charges of murder, robbery and burglary -26- HSA and had been taken to the police station where he was informed of his rights as required by Miranda. He agreed to sub- mit to questioning and was told that another individual already in custody had implicated him in the crime. Edwards denied any involvement and gave a taped statement consisting of an alibi. He then indicated that he wished to “make a deal" but stated that he wanted an attorney before making the deal. All questioning immediately ceased. The next morning two officers came to the jail to speak with Edwards. Edwards told the guard he didn't wish to see anyone, but was told by the guard that he had to meet with the officers. The officers identified themselves and informed Edwards of his Miranda rights. Edwards indicated that he was willing to talk with the officers but asked first -27- §1& to hear the taped statement of the indi- vidual who had implicated him. After listening to the tape, Edwards said he would tell the officers anything they wanted to know as long as it was not taped. He then confessed. The Arizona Supreme Court held tnat Edwards' waiver and confession had been voluntarily and knowingly made. The United States Supreme Court, reversing the Arizona Supreme Court, observed that "the volun- tariness of a consent or an admission on the one hand, and a knowing and intelli- gent waiver on the other, are discrete inquiries. Here, however sound the conclusion of the state courts as to the voluntariness of Edwards' admission may be, neither the trial court nor the Arizona Supreme Court undertook to focus on wnether Edwards understood his right to counsel and intelligently A 28-44 knowingly relinquished it. It is thus apparent that the decision below misun- derstood the requirement for finding a valid waiver of the right to counsel, once invoked." Edwards v. Arizona, supra at 484, 101 S.Ct. 1880, 68 L.Ed.2d 378. In the instant case, appellant, who had a borderline retarded mentality, requested counsel to assist him during questioning. He was told that the public defender would not respond to a request for assistance because appellant had not been arrested and was not being accused of a crime. This, despite the fact that on several prior occasions he had been told that he was entitled to counsel before answering any questions and that if he was unable to afford counsel, one would be appointed to represent him free of charge. It was -29- I also said despite the fact that police believed appellant to have been a part of the killing. It was, at best, misleading to tell him that he was not a suspect. In fact, Colin Brown had already identified appellant as a par- ticipant in the murder of Mrs. Kepner's children and had told police that he heard appellant admit involvement. The police, moreover, had repeatedly told appellant that his denials of involve- ment were lies and that they had a wit- ness who could testify regarding his participation. The United States Supreme Court has expressly held that “a valid waiver of [the right to counsel] cannot be established by showing only that [the defendant] responded to further police- initiated custodial interrogation even if he has been advised of his right." -30- JIGA Edwards v. Arizona, supra at 484, 101 S.Ct. 1880, 68 L.Ed.2d 378 (emphasis supplied). See also: United States v. Youngblood, supra at 232-234, 307 A.2d 2 6-927; Commonwealth v. Mercier, supra at 215-216, 302 A.2d at 340; Commonwealth v. Nathan, supra at Commonwealth v. Frambro, 230 Pa. Super. Fuentes, 443 A.2d 184, 191 (R. —_, 281 S.E.2d 594, 597 (1981). The record in this case establishes beyond peradventure of a doubt that after appellant had clearly and unequivocally invoked his right to counsel and after he nad attempted, unsuccessfully, to reach counsel by telephone, he was questioned further by Trooper Shimko. -31- pao hk That he responded to such police- initiated questioning does not establish a waiver of the right to counsel pre- viously invoked. “For a waiver. . . to be effective, the reversal of the defen- dant's positon must have been initiated by him." Commonwealth v. Frambro, supra at 223, 326 A.2d at 437, quoting Commonwealth v. Mercier, supra at 216, 302 A.2d at 340 (emphasis supplied). 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 statement. This was improper. Appellant had requested and was entitled to have counsel pres- ent. His statement given in response to police questioning a without coun- -32- jz se] should have been suppressec. The judgment of sentence is vacated, and the case is remanded for a new trial. Jurisdiction is not retained. »33- 122A Alppendac “'C" IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA CRIMINAL COMMONWEALTH OF - ACTION NO. 502 PENNSYLVANIA VS. - 1977 DAVID HUBBLE APPEARANCES ROBERT F. BANKS, ESQUIRE First Assistant FOR THE COMMON- District Attorney WEALTH ROBERT B. ELION, FOR THE DEFEND- ESQUIRE ANT OPINION, WALTER, J., FOR THE COURT _EN BANC, OCTOBER 15, A.D., 1980. After twelve days of trial a jury on November 25, 1977 found defendant guilty of robbery, burglary, theft, conspiracy and six counts of murder in the second degree. David E. Hubble, the defendant, timely filed post-trial motions for a new trial and, in the al- -1- JZ3A ternative, in arrest of judgment. We have been favored with briefs from both Sides; oral argument was waived. The issues raised by defendant in his motions and subsequent listing of addi- tional reasons will be treated seratim. Bs 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, defendant 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. x 124 & We must first determine whether or not defendant was subject to custodial interrogation on July 12, 1977. The test for determining whether a person is in custody for Mirandal purposes is whether he “. . . iS physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation. . . ." Commonwealth v. —_ - —- — — — = Romberger, 454 Pa. 279, 283, 312 A.2d 353, 355 (1973). Defendant relies on Commonwealth v. Brown, 473 Pa. 562, 375 A.2d 1260 (1977), in support of his contention that a reasonable man in defendant's cm ee ee ee 1See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966). -3- JasAa situation would have perceived the restraint of his freedom. In Brown, supra, police took defendant to a public building and questioned him intermit- tantly over a period of ten hours. The next day police informed defendant of discrepancies between his statements and those of another security guard on duty the night of the killing. Both he and the other guard were taken back to the public building, but defendant was not told he was not under arrest nor that he was free to leave. The Court held questioning on the second day constituted custodial interrogation for which prior warning were required. Moreover, where oral admission and a subsequent taped state- ment were obtained through exploitation of a statement obtained from defendant during earlier, prewarning interroga- -4- (ACA tion, such admission and statement should have been suppressed. In light of the above, we find that, for Miranda purposes, defendant was the subject of a custodial interro- gation throughout the day of July 12, 1977. Prior to July 12, 1977 defendant had been questioned three times and had undergone a polygraph examination. On July 12, 1977 defendant was subjected to another polygraph examination and further questioning. He remained at the station for approximately eight hours. b. Given that finding we must deter- mine whether defendant was subject to poi.ce conduct calculated to or likely to evoke admissions. In Commonwealth v. Yount, 455 Pa. 303, 309, 314 A.2d 242, 245-6 (1974), €. 1278 the Court, quoting Commonwealth vy. Simala, 434 Pa. 291, 226, 252 A.2d 575, 578 (1969) stated: "'TCI Jt is not simply custody plus “questioning,” as such, which calls for the Miranda safeguards but custody plus police conduct. . .calculated to, expected to, or likely to, evoke admissions.' "The rational behind this holding is found in Miranda where the Court stated: "Confessions remain a proper el- ement in law enforcement. The fundamental import of the privilege. . . is not whether Can individual] is allowed to talk to police without the ben- efit of warnings and counsel, but whether he can be interro- gated. There is no require- ment that the police stop a person who enters a police station and states that he wishes to confess to a crime ; Volunteered state- ments of any kind are not barred by the Fifth Amend- ment. ° "Miranda v. Arizona, supra, at 478, 86 S. Ct. at 1630 (emphasis added). "'Clearly, “any question likely to or exnected to elicit a con- fession constitutes ‘interroga- -6- IQR A tion' under Miranda, “Commonwealth v. Simala, supra at 227, Zee Ax.ce a Sr; Accord, Commonwealth v. Mercier, 451 Pa. 211, 214, 302 A.2d 337, 339 (1973). But "Cajny statement given freely and voluntarily without any com- pelling influences is, of course, admissible in evidence." Miranda v. Arizona, supra at 478, 66 S$. Ct. at 1630, te ts tevee 6946 .°* It is clear, in the instant case, that defendant was subject to interroga- tion on July 12, 1977. First, Trooper W. Jones testified at the suppression hearing that after administering the polygraph test on July 12, he told defendant: “David, I still don't think you're telling us the whole truth about this." (Supp. T. 33) Furthermore, he informed Trooper Shimko that defendant was “reacting” to the questions asked that day and that the test results indi- cated that defendant had been in the house. (Supp. T. 50-51) 7. Maga Defendant was then told by Trooper Shimko that he was being deceitful in his interview with Trooper Jones and that "he had some knowledge about this particular offense and that he could have participated or had knowledge of this offense in some way, shape or form." (Supp. T. 100) At one point Trooper Shimko became angry and left the room. Before leaving he told defendant that ". . . I felt that he was involved in his offense, that he could have been in the house and that he could have par- ticipated in some way, shape or form, and that I felt that he was not being truthful with me and I walked out of the room." (Supp. T. 102) The record goes on to recount various instances when defendant was interrogated regarding his involvement in the murders. As defendant was subject to inter- -8- so rogation, the procedural safeguards of Miranda apply. Cs Having found that defendant was entitled to Miranda warnings, we must next decide whether he was adequately advised of his rights. Defendant contends that he was not adequately advised of his right to coun- sel since he was led to believe that appointive counsel was unavailable. We find no merit in defendant's argument. Trooper Shimko testified at the Suppression Hearing that defendant was told he could call whoever he wished. ", . . I do not believe that a public defender will come out to talk to you because you were not arrested. . ., but you are willing or you're able to call whoever you wish to call." 9. 130A (Supp. T. 114) Defendant then attempted to contact Mr. Felix, a lawyer located in Williamsport, Pennsylvania, who had previously been a public defender in Lycoming County. Mr. Felix was unavailable. Defendant then contacted his proba- tion officer, David McCool. Mr. McCool testified that he told defendant he wasn't sure whether the public defen- der's office would represent him at that time. However, he told defendant ". to call them and find out. I had no knowlege whether they would or not." (Supp. T. 251) After the conversation with Mr. McCool, defendant conversed with his wife for three to vive minutes. Trooper Shimko then asked whether defen- dant wished to give a statement. Defendant stated he would. (Supp. T. 117) He was advised of his Miranda -10- saZA rights and again asked whether he wished to give a statement. He replied "Yes." (See Exhibit 19) Based upon these facts we find that defendant was adequately advised of his right to counsel. d. Once we find that defendant was fully advised of his right to counsel, we must next ascertain whether he waived his right. It is axiomatic that a defendant may waive his right to counsel and priv- ilege against self-incrimination. A heavy burden, however, rests upon the prosecution to show such a waiver. We are persuaded the burden was met in this case. In Commonwealth v. Bullock, 459 Pa. 243, 328 A.2d 494 (1974), the defendant -1- /33e (1973>. In the instant case, defendant was given the opportunity to contact the public defender's office. He failed to do so. He thereafter talked with his wife, who had acted as his advisor on many occasions before and was undispu- tedly operating in that capacity this day, and then agreed to give a state- ment. He was informed of his Miranda rights for the third time@ that day and for the third time he waived those rights. It is clear that any subsequent Statements were made after a knowing and intelligent waiver of his constitutional! rights. There is no evidence that the defendant was tricked into giving a sta- tement or that his will was overborn. 2First, by Trooper Jones; second, at the beginning of the interview with Cp! Shimko, by the latter. “13. OSA The police were not dealing alone with a defendant possessed of borderline retarded mentality. Defendant may have a compelling argument if it were so. But here defendant was told twice - by Officers Shimko and by his Probation Officer - to call the Public Defender office to determine if he could get a lawyer under the circumstances obtaining. Furthermore, he had ample opportunity to talk with his wife on whom he placed great reliance, throughout the day generally and at the critical moment in particular. Jt was only after talking with her that defen- dant decided he wanted to make a state- ment without benefit of counsel. te Specifically, defendant states that the “totality of the circumstances" -14- 136A under which the confession was given requires the conclusion that the con- fession was coerced. We disagree. Throughout the day starting at approximately 10:00 a.m. defendant had ample opportunity to use the toilet facilities, refused several offers of food but drank an abundance of coffee; the physical conditions of his detention were pleasant, airy and bright; and his wife was with him constantly during the period of interrogation. He had a con- siderable opportunity to discuss his situation fully with his wife before he confessed. Moreover, about 3:00 p.m. or about one and a half hours before defendant made his inculpatory statement, the police adorned with coats and hats, were ready to take the Hubbles home. Staying longer - the next three and vi hours - -15- 439 was the defendant's decision. And again, during a private conference with Virginia that consumed the first forty- five minutes of that span, defendant was informed the police were ready to take them home. We are satisfied - and so was the jury, apparently - David Hubble's con- fession was the product of a "free and unconstrained choice." III. Defendant's next argument entails the applicability of the Futch Rule.3 Defendant asserts he was arrested on July 12, 1977 but not arraigned until August 3, 1977. Our review of the case law supports the finding that defendant was not arrested on July 12, 1977. 3Commonwealth a Futch, 447 Pa. 389, 20 A.2d 417 972). “16- 139A In determining whether or not an arrest for Fourth Amendment purposes has been made, the intent of the parties is of great importance. "“'An arrest may be accomplished by “any act that indicates an intention to take [a person] into custody and subjects him to the actua! control and will of the person making the arrest."'" Commonwealth v. Farley, 468 Pa. 487, 494, 364 A.2d 302 (1976). In this case there was no intent on the part of the police to arrest defen- dant and no belief on the part of the defendant that total submission to police control was required. The record is replete with indicators defendant voluntarily came to the station for questioning and voluntarily remained after the initial questioning had been completed. He was not taken into custody nor deprived of 139A.” to -17- leave even after his confession was recorded. Nor did his wife, with him in the building the entire time, feel they could not go anytime they chose. The Futch Rule is, therefore, inapplicable. vi The defendant next claims the Court erred in not granting defendant's request for continuance. Defendant's counsel contends three months was an insufficient period of time to prepare the case for trial.4 We find little merit in this argument. Neither the surrounding facts nor the nature of the case was so intricate as to warrant a finding that defendant was denied his 4The facts disclose that Robert B. Elion, Esquire, was appointed as Special Public Defender on August 19, 1977. The trial commenced on November 14, 1977. is. JA due process rights. Indeed, defendant's counse! did an admirable job in pre- senting defendant's case. As his own Petition for Continuance indicated, he expended a considerable period of time working on the case. In Commonwealth v. Plath. __ Pa. Super. __, 405 A2d 1273 (1979) the Court held no abuse of discretion in denying defendant's request for a con- tinuance where the request was based on the absence of a witness and defendant gave no assurance concerning the content of his testimony or even, whether the witness could be located. Defendant's request of a con- tinuance in this case in order to track down ali “leads” and investigate al] potential witnesses was properly denied. 4@s Itt A v. Defendant argues here that the Court erred in not permitting a proposed voir dire question, to wit: “David Hubble has given the statement to the police which puts him at the scene of the crime while the murders took place. Will this fact alone prevent you from listening to the evidence and rendering a fair verdict based solely upon that evidence?" Preliminarily, we note that the goal of questioning prospective jurors is to provide the accused with a com- petent, fair, impartial and unprejudiced jury. Commonwealth v. Fulton, Pa, Super. __, 413 A.2d 742 (1980). “While considerable latitude should be per- mitted in a voir dire, the inquiry should be strictly confined to disclosing qualifications of a jury and “20- 4Y~2RA whether a juror has formed a fixed opin- ion or may be otherwise subject to disqualification for cause." Id. at __, 413 A.2d at 743. Defendant's proposed jury question went beyond merely inquiring into juror prejudice. Instead, defendant attempted to ask a question "'., . . designed to disclose what a juror's present impression or opinion may be or what his attitude or decision will likely be under certain facts which may be devel- oped in the trial of the case.'” Commonwealth v. Werts, 483 Pa. 222, 224, 395 A.2d 1316, 1317 (1979) quoting from Commonwealth v. Johnson, 452 Pa. 130, 134, 305 A.2d 5, 7 (1973). We find no reason to disturb the refusal by the Trial Court to permit that question on voir dire. _21- 4¥34 VI. Similarly we find no merit in defendant's contention the Court erred in not permitting an examination of Colin sgrown regarding an incident which took place at Dennis Carpenter's house in early July, 1976. Defendant argues such was relevant as bearing upon Brown's possible confusion of the nights of August 5, 1976 and that one in July, 1976. Whatever prejudice may have resulted to defendant and we see none, is erasd by the wide latitude given defendant on the cross-examination of Brown. Defendant has myriad oppor- tunities to demonstrate Brown's recall] or lack thereof. VII. We turn now to defendant's asser- .22- IVYA tion there was insufficient evidence to sustain his conviction of the crimes charged. In Commonwealth v. Harper, 485 Pa. 572, 576 403 A.2d 536, 538 (1979), the Supreme Court stated: "In evaluating the sufficiency of the evidence, the test is whether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt. . . The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable double by means of wholly circumstantial evidence." There is nothing to he gained by outlining here the details of the heinous crimes p2rpetrated on the vic- tims by the defendant and his co- conspirators. That is done for us in the record; through the testimony of an 213. I(¥SA accomplice; in the pellucid account of their investigations rendered by the police officers, who demonstrated excep- tional skill in their work; and not the least, in the recorded confession given by the defendant to the police, unencum- bered by duress, coercion and overborn will, relating his part in the crimes and describing in detail what happened. The jury was given proper instruc- tion on the place in evidence chat con- fession occupied, how to evaluate whether it was voluntary, and that evi- dence extraneous to its content must corroborate it. We are persuaded the jury believed Colin Brown's account of defendant's conduct, demeanor and state- ments on defendant's return for "a quest for beer", as well as John Shafer's discourse regarding his presence with Scarborough and the Hubble brothers on -24- #4GA the ill-fated foray. The testimony with other similzr evidence of like kind coupled to the gruesome physical facts reviewed by law enforcement represen- tative was sufficient, if believed by the jury, to validate the subject matter of the confession No legal citation is necessary to posit the maxim the jury is at liberty to believe whom it will. It is pain- fully obvious the jury declined to accept as credible the evidence prof- fered by defendant tending to show he was elsewhere on the night in question. Those twelve men and women heard it all, sifted through the considerable supply of exhibits, documents, data, confir- mations and authentications. From it they decided the defendant did accompany his brother Robert and Milton Scarborough into the Kepner -25- J¥7 house, that one of the three demanded money from Mrs. Kepner who refused, that she was shot and killed for her trouble by the culprit attempting the exaction; that the defendant then participated in Slaying the two youngsters and in taking the approximate eighty dollars from Mrs. Kepner's purse. It was bestiality, an exhibition of sheer baseless morality, a seeming barbaric ritual, bespeaking of the prac- t.tioners nothing of socially redeeming virute. There was ample evidence not only to establish the homicides, but the crimes of burglary - entry of Mrs. Kepner's home without permission and with the intent on the part of the defendant to commit a crime: theft, of robbery - taking property of another by force and, in this case, inflicting -26- 4¥ serious (mortal) bodily injury; of theft itself - unlawful taking of property belonging to another with no intent of returning it; and of conspiracy - the mere fact the defendant was acting with two others in the types of crimes com- mitted would belie coincidental presence of the three. In our perspective the jury made no error in evaluating the testimony. There is more than sufficient credible evidence to sustain the verdicts. VIII. Finally, defendant complains that this Court erred in denying points for charges Nos. 7, 9 and ll. Defendant's request for jury instruction No. 7 read as follows: "The additional element of flight, which is as consistent with fear as it is with be I%9 A guilt, does not convert one's presence at the scene of the crimes to guilt.” This charge was refused because of the lack of evidence of "flight" as the word iS commonly used. Defendant's reliance on Commonwealth v. Goodman, __. Pa. Super. __, 350 A.2d 810 (1976) for support of his proposition is misplaced. In that case the Court held that the evidence was as consistent with the inference that defendant innocently, happened upon the scene and fled out of fear as it was with the inference that defendant was a participant in the burglary. Therefore, presence of defen- dant at scene of crime was not suf- ficient to establish guilt beyond ae ee eee 5The Random House Dictionary defines flight as the “act of fleeing; hasty departure." aoe 150 f- reasonable doubt. In this case we would be hard-pressed to find that the two above inferences were equally weighted. But beyond that there was no flight on which we are aw [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1602%3A1. Public record. Not legal advice.