Opposition Brief — Rodger v. United States

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING, IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED,

Supreme Court, U.S.

FILED

NOV 13 1987

JOSEPH F SPANIOL, JR.

CLERK

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

een

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1097 i

NOVY 14°! COMMONWEALTH OF PENNSYLVANIA,

Petitioner

V.

MICHAEL CEPHAS,

Respondent

-

PETITION FOR WRIT OF CERTIORARI TO

THE SUPERIOR COURT OF PENNSYLVANIA

RESPONDENT'S BRIEF IN OPPOSITION

JOHN W. PACKEL, Assistant Defender

Chief, Appeals Division

(Counsel of Record)

JULES EPSTEIN, Assistant Defender

BENJAMIN LERNER, Defender

Defender Association of Philadelphia ‘

121 N. Broad Street

Philadelphia, PA. 19107

(215) 568-3190

November, 1987

" *

QUESTION PRESENTED

Should not certiorari be denied where a state court

suppressed statements made during custodial interrogation after

finding, with ample support in the record, that respondent

suffered from a severe mental illness which left him incompetent

to waive his constitutional right against self-incrimination, as

this Court has always required that such a waiver be made,

knowingly and intelligently?

ee ee

® @

TABLE OF CONTENTS

PAGE

Question Presented = |

Table Of Contents ii

Table Of Authorities iii

Statement Of The Case 2-5

Reason For Denying The Writ 7-12

Conclusion 12

Appendix A:

Judgment And Opinion Of The Superior

Court Dated March 4, 19877

Appendix B:

Opinion Of The Superior Court Dated

December 15, 1986

Appendix C:

Findings Of Fact And Conclusions Of

Law

ii

?

TABLE OF AUTHORITIES

PAGE

Federal Cases

COLORADO V. CONNELLY 10-11

v.8. , 107 S.Ct. 851 (1987)

COLORADO V. SPRING 10

ie @ , 107 S.Ct. 515 (1987).

EDWARDS V. ARIZONA ; 10

451 U.S. 477 (1981)

FARE V. MICHAEL C. 8,12

442 U.S. 707 (1979)

JOHNSON V. ZERBST : 7

304 U.S. 458 (1938)

MICHAEL V. TUCKER r, ; 10

417 U.S. 433 (1974)

MIRANDA V. ARIZONA 7

384 U.S. 436 (1966)

NORTH CAROLINA V. BUTLER 3

441 U.S. 369 (1979)

OREGON V. BRADSHAW 8

462 U.S. 1039 (1983)

SCHNECKLOTH V. BUSTAMONTE 10

412 U.S. 218 (1973)

TAGUE V. LOUISANA . 8

444 U.S. 469 (1980)

State Cases .

COMMONWEALTH V. BROWN 6,8

341 Pa. Super. 138, 491 A.2d 189 (1985)

COMMONWEALTH V. HACKNEY \ 6

353 Pa. Super. 552, 510 A.2d 800 (1986)

iii

® 2

STATEMENT OF THE CASE

Respondent was arrested on October 7, 1983, and charged with

a rape said to have occurred on September 29, 1983. On April 19,

1984, after taking testimony over two days of hearings, the

Honorable Bernard Avellino, of the Philadelphia County Court of

Common Pleas, entered an order suppressing statements made by

respondent to police during custodial interrogation. Findings of

Fact and Conclusions of Law (attached as Appendix "C") were

announced in open court on July 25, 1984.

The lower court found that respondent had "an extensive

history of profound mental illness" and "had been consistently

diagnosed as a schizophrenic of the most serious type" (Finding

One, Appendix "C"); that respondent was manipulated by his police

interrogator, who was aware of respondent's mental illness

(Findings Fifteen through Eighteen, Appendix "C");' and, most

1 In its Statement Of The Case, petitioner ignores this and

almost all of the express findings of the suppression court.

Petitioner's Statement Of The Case provides, as if fact, selected

excerpts of the testimony most favorable to its case; it in no

way reflects the Findings of the lower court.

This is most evident in Petitioner's depiction of the police

conduct in the instant case. Its argument that "Here, the

undisputed and credited evidence established that the police

scrupulously followed the law" (Petition For Writ Of Certiorari,

12) flies in the face of the articulated findings, including the

following:

Fifteen, prior and during Michael's interview

the assigned detective knew that Michael was

suffering from a profound major mental

illness.

(continued...)

importantly, that respondent was suffering from his mental

illness at the time of his interrogation and as ae result was

incapable of understanding or waiving his constitutional right

against self-incrimination (Finding Twenty, Appendix "C").

Testimony? supportive of the hearing court's findings

included the following:

i. Respondent was diagnosed, after a court-

ordered psychiatric examination in 1982, as

suffering from "either bipolar affective

illness, or schizophrenia as schizo-

affective type" (N.T. 138).* Respondent was

hospitalized later that year with a diagnosis

of schizophrenia (N.T. 137).

Ze Medical records established that on

August 22, 1983, less than two months before

*(...continued )

Sixteen, the assigned detective skillfully

manipulated Michael's mind through a process

of reward and punishment.

Seventeen, Michael was held for a series of

suggestive and leading questions which

resulted in his making an incriminating

statement.

Eighteen, despite continued cajoling by the

assigned detective, Michael refused to sign

the statement because he was no longer

receiving any reward or punishment.

Appendix oun Findings Fifteen through Eighteen.

F Contrary to the assertion of Petitioner, respondent did

not "rel[y] exclusively on psychiatric evidence to support a

claim of incompetency" (Petition for Writ of Certiorari, 8).

Respondent and the lower court relied as well on the testimony of

the prosecution witnesses, respondent's bizarre conduct from the

time of his arrest through his interrogation, and respondent's

arrest photograph.

* "N.T." designates the notes of testimony from the two

evidentiary hearings on respondent's motion to suppress, which

are consecutively paginated.

his arrest on this case, respondent had

suffered an acute psychotic episode and was

hospitalized "because he was found on a

sixty-foot scaffold, disrobing himself,

breaking windows and threatening to jump"

(N.T. 208).

3. Medical records established that on

September 21, 1983, less than three weeks

before his arrest on this case, respondent

was hospitalized after an acute psychotic

episode in which he was found in a tree

across the street from a schoolyard (N.T.

202-207).

4. Dr. Perry Berman, a psychiatrist,

wxamined respondent repeatedly after his

arrest in this case. He diagnosed respondent

as schizophrenic (N.T. 130-133).

5. Dr. Richard Schwartzman, a psychiatrist

at the Philadelphia Detention Center,

examined respondent four days after his

arrest in the instant case and diagnosed him

as suffering from schizophrenia,

undifferentiated type (N.T. 196-298).

6. At the time of his arrest on October 7,

1983, respondent was living in an alleyway

near his parents' house. In the alley he kept

bags of clothing, religious articles and

costumes. Respondent often dressed in

costumes, sometimes appearing as the prophet

Moses (N.T. 18-20).

7. The arresting officer was begged by

resnondent's family to "Please get him put

away somewhere" so he would get help for his

mental problems. The arresting officer

communicated this information. to Officer

Keenan, respondent's interrogator (N.T. 29-

30).

8. Respondent was questioned twice by

Officer Keenan. Between sessions, while ina

locked detention room, he was hollering and

kicking the door (N.T. 58).

9. Respondent, a black male, told police

that he was the son of Ed Rendell [a white

male, at the time District Attorney of

Philadelphia] and had dined at the Rendell

a

a =

night before his arrest (N.T. 58-

home the

59).

10. Richard poroch, a licensed psychologist

and pirector of Social and Psychiatric

Services 1! the Defender Association of

Philade!phla. examined respondent on October

13, 1983. zesspondent was deemed not to be

competent 10 proceed to trial at that time;

his. affect was excited and = included

inappropr late laughter (N.T. 90-96).

11. When Mr. Boroch asked respondent whether

had any hallucinations or visions,

he has

responden|! “tated that the answers are in the

Bible (N.'l- 96-97).

12. Mrs Boroch then arranged for

respondent '# immediate transfer to the prison

hospital [0! treatment (N.T. 99).

13. Dr. Herman concluded, based -upon his

examinations of respondent, respondent's

medica) records, the police reports and the

preliminary hearing testimony of Officer

Keenan, on October 7, 1983, respondent

was suffering from the major mental illness

schizophrenia and was incapable of

understanding and intelligently waiving his

constitutional rights (N.T. 139-141).

14. Dr. herman explained that schizophrenia

is a major disease of psychotic proportions

which djnturbs its victim's behavior and

interferes with the ability to think in an

organized way; that persons afflicted with

schizophrenia may behave as one personality

and then nuddenly switch and behave like

another personality; and that the

schizophrente mental state allows the

individun! to be highly suggestible and to

follow others' requests = and repeat back

things others may have suggested, but without

standing how seriously others are taking

under

his statements (N.T. i233. 141-142).

that

Petitioner nought reconsideration of the lower court's

ruling, and the order suppressing respondent's statement was

vacated. after additional argument, the order granting

® e

suppression was reinstated on July 25, 1984. Petitioner then

appealed this decision to the Superior Court of Pennsylvania.

The Superior Court twice (Appendices "A" and "B")

unanimously affirmed Judge Avellino's order, validating the lower

court's findings of fact as being supported by the record* and

holding that the statement had to be suppressed as respondent was

“incapable of comprehending the meaning of the Miranda warnings

at the time he was interrogated" (Appendix "A", p. 8).

Petitioner then sought review in the Pennsylvania Supreme

Court. That Court denied review in an Order dated August 20,

1987. The instant Petition for a Writ of Certiorari followed.

_

. The findings of fact of a court ordering suppression,

if supported by any evidence in the record, are deemed valid and

final as a matter of state law. Commonwealth v. Hackney, 353

Pa. Super. 552, 510 A.2d 800 (1986); Commonwealth v. Brown, 341

Pa. Super. 138, 491 A.2d 189 (1985).

6

a ad alesis

REASONS FOR DENYING THE WRIT

Respondent's statements, made to police during custodial

interrogation in a police station, were suppressed because his

Major mental illness left him incapable of understanding and

knowingly and intelligently waiving his right against self-

incrimination. The Petition for Writ of Certiorari must be denied

because petitioner's claim that a statement need not be

suppressed where a suspect is incompetent and incapable of

waiving his right against self-incrimination as long as the

police engage in no coercive conduct is’ clearly meritless.

Petitioner's painfully misguided view of the law is without any

persuasive rationale and is contrary to every case decided by

this Court in the past twenty-one years applying Miranda v.

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

In Miranda, the Court required that an accused, subject to

the coercive circumstances of custodial interrogation, be advised

of his constitutional right against self-incrimination and that,

absent the waiver of that right, “no evidence obtained as a

result of interrogation can be used against him" 384 U.S. at 479

(footnote omitted). Such a waiver was required to be knowing and

intelligent, the same as for any constitutional right.

This Court has always set high standards of

proof for the waiver of constitutional

rights. Johnson v. Zerbst, 304 U.S. 458

(1938), and we reassert these standards as

applied to in-custody interrogation. 384 U.S.

at 475.

‘

Thus, contrary to petitioner's assertions (Petition for Writ

of Certiorari, 15-16) that a Johnson v. Zerbst analysis has no

place in determining the validity of a Miranda waiver,® that

standard was mandated by Miranda itself and has’ been continually

reaffirmed and applied by this Court. Tague v. Louisiana, 444

U.S. 469, 470 (1980); North Carolina v. Butler, 441 U.S. 369,

374-5 (1979); cf., Oregon v. Bradshaw, 462 U.S. 1039, 1046

(1983); Pare v. Michael C., 442 U.S. 707, 725 (1979), reh. den.

444 U.S. 887.

The validity of a purported waiver is to be determined by

"the particular facts and circumstances surrounding that case,

including the background, experience and conduct of the accused."

Johnson v. Zerbst, 304 U.S. at 464; North Carolina v. Butler, 441

U.S. at 374-5. This includes evaluation of the suspect's

age, experience, education, background and

intelligence, and whether he has the capacity

to understand the warnings given him, the

nature of his Fifth Amendment rights, and the

consequences of waiving those rights.

Fare v. Michael C., 442 U.S. at 725 (emphasis added). It is

precisely this inquiry that was conducted in respondent's case;

. This issue was never presented to the suppression

court, the Pennsylvania Superior Court, or in its Petition for

Allowance of Appeal to the Supreme Court of Pennsylvania.

Accordingly, it is not properly preserved for review by this

Court. Youakim v. Miller, 425 U.S. 231, 233-234 (1976); Lawn v.

United States, 355 U.S. 339, 362-363, fn. 16 (1958); California

v. Taylor, 353 U.S. 553, 557 fn. 2 (1957).

8

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« *

and precisely because he lacked the "capacity to understand" the

warnings that his confession was suppressed. *

Petitioner is clearly wrong in branding "specious" (Petition

for Writ of Certiorari, 18-19) the distinction between

"“yoluntariness" and "knowing and intelligent." This precise

distinction has been clearly drawn and utilized by this Court.

Miranda set prerequisites under which "a defendant's statements

might be excluded at trial despite their voluntary character

° The suppression court found that respondent ‘

is not in touch with reality of the situation

and he could not understand the significance

of his so-calied Miranda Warnings or

competently waive his rights to remain silent

or to have counsel present. .

Appendix "C," Finding Twenty. At the hearing on the

prosecution's request for reconsideration of the suppression

order, the hearing judge succinctly explained the basis for his

decision:

THE COURT: Suppose Mr. Cephas was asleep,

asleep or unconscious, at which time the

officer, Officer Keenan, read him the Miranda

Warnings while he was unconscious. He later

woke up and was questioned and gave a

statement. Would your argument be then that

the statement should be admissible?

THE PROSECUTOR: That is not what you have

here.

THE COURT: He was unconscious in my view. The

same as if he had been drugged or was asleep.

I don't think he understood the warnings.

I don't think he is capable of understanding

the warnings. I don't think he did understand

them. I don't think he voluntarily gave up

his right to remain silent.

(Hearing on Commonwealth Request for Reconsideration, July 18,

1984, p. 7).

under traditional principles." Michigan v. Tucker, 417 U.S. 433,

443 (1974).

It is reasonably clear under our cases that

waivers of counsel must not only be

voluntary, but must also constitute a knowing

and intelligent relinguishment of a known

right or privilege...

Edwards v. Arizona, 451 U.S. 477, 482 (1981) (emphasis added);

cf., Schneckloth v. Bustamonte, 412 U.S. 218, 238-241 (1973).

The necessity for this two-fold inquiry was most recently

reaffirmed by this Court this past term.

A statement is not "compelled" within the

meaning of the Fifth Amendment if an

individual "voluntarily, knowingly and

intelligently" waives his -constitutional

privilege. Miranda v. Arizona, supra, at

444. The inquiry whether a waiver is coerced

"has two distinct dimensions." Moran v.

Burbine, 475 U.S. __, ____ (1986):

First the relinquishment of the right

must have been voluntary in the sense

that it was the product of a free and

deliberate choice rather, than intimi-

dation, coercion, or deception. Second,

the waiver must have been made with a

full awareness both of the nature of the

right being abandoned and the conse-

quences of the decision to abandon it.

Only if the ‘totality of the circum-

stances surrounding the interrogation'

reveal both an uncoerced choice and the

requisite level of comprehension may a

Court properly conclude that ‘the Miranda

rights have been waived." Ibid.

(quoting Fare v. Michael C., 442 U.S.

707, 725 (1979).

Colorado v. Spring, U.S. , , 107 8.Cct. 851, 857 (1967)

(emphasis added).

For the same reason petitioner can find no support for its

unprecedented claim in Colorado _v. Connelly, U.S. » 4-67

10

S.Ct. 515 (1987). There, this Court held that the confession of

a person who understood the Miranda warnings, 107 S.Ct. at 519,

would not be suppressed as involuntary where his mental condition

compelled him to confess, as there was no coercive conduct by the

police. The issue of whether the waiver was “knowing and

intelligent" was not before this Court; police misconduct or

coercion was held to be a necessary predicate only to a finding

that the confession was involuntary. 107 S.Ct. at 524, fn 4; 107

S.Ct. at 533 (Brennan, J., dissenting).

To accept petitioner's arguments would be to validate the

admission of statements, made after arrest and during police

station interrogation, of a person incapable of understanding

English, of a person with an intelligence quotient of a three

year old, or of a person delirious due to illness, alcohol or

drugs, as long as there was no provable police misconduct. This

is not the law of this country, and it clearly should not be.

Miranda held the requirements of warnings and waiver to be

fundamental...and not simply a preliminary

ritual to existing methods of interrogation.

The warnings required and the waiver

necessary in accordance with our opinion

today are, in the absence of a fully

effective equivalent, prerequisites to the

admissibility of any statement’, made by a

defendant.

384 U.S. at 477. Petitioner failed to prove a valid waiver even

by a preponderance of the evidence.

Respondent was mentally incompetent and without "the

capacity to understand the warnings given him, the nature of his

11

Fifth Amendment rights, and the consequences of waiving those

rights." Fare v. Michael C., 442 U.S. at 725. The Findings of

Fact entered by the suppression court were amply supported by

the record and the order suppressing respondent's statements was

in accordance with every decision of this Court interpreting and

applying Miranda.

Review by this Court is therefore unwarranted.

CONCLUSION

For the foregoing reasons, respondent Michael Cephas, by his

counsel, respectfully requests that the Petition for Writ of

Certiorari be denied.

FELES/ EPSTEIN, Assistant Def der

JO W. PACKEL, Assistant pefender

Shief, Appeals Division

IN LERNER, Defender

iz

J. 56037/86 - 1

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

APPELLANT PENNSYLVANIA

Ws

MICHAEL CEPHAS : NO. 02288 PHILADELPHIA 1984

JUDGMENT

On ConsipERATION WHEREOF, it is now here ordered and adjudged by this Court

that the judgment of the Court of Common Pleas of | PHILADELPHIA County

be, and the same is hereby AFFIRMED.

Dated:

By THE Court:

| wy, “ ; b

PROTHONOTARY

MARCH 4, 1987

EXHIBIT "A"

249

7

J. 56037/86 - l

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

APPELLANT PENNSYLVANIA

V.

MICHAEL CEPHAS : NO. 02288, PHILADELPHIA 1984

Appeal from the Order of July 18, 1984, in

the Court of Common Pleas of Philadelphia

County, Criminal Division, at No. 83-11-221-

226.

BEFORE: WICKERSHAM, OLSZEWSKI AND BECK, JJ.

OPINION BY BECK, J.: FILED MAR -4 1987

The Commonwealth appeals an order“granting a suppression

motion. The court suppressed appellee's statements after finding

that appellee did not knowingly waive his privilege against self-

incrimination. We affirm.

Appellee was arrested on October 7, 1983 and charged with

rape, indecent assault, indecent exposure, unlawful restraint,

terroristic threats, and simple assault. He moved to suppress

two statements made to police during custodial interrogation.

After a hearing, the motion was granted. The Commonwealth

petitioned the court to reconsider. The court vacated its order

pending reconsideration. The court denied the petition and

reinstated its order granting the motion to suppress. This

timely appeal followed.

Initially, we note that we have jurisdiction of this appeal from

a pre-trial suppression order because the Commonwealth certified

in good faith that the order terminated or substantially

& = 2

J. 56037/86 - 2

handicapped its prosecution. Commonwealth v. Dugger, 506 Pa.

537, 486 A.2d 382 (1985).

Appellee was arrested on the basis of the victim's

description. He was taken to the Sex Crimes Unit of the

Philadelphia Police. At the time of his arrest, appellee was a

street person living in an alley near his foster family's home.

He had a long history of mental illness and hospitalization for -

this illness. He had consistently been diagnosed as a

schizophrenic. His most recent hospitalization was about two

weeks before his arrest after he was seen in a tree near an

elementary school screaming at the school children and yelling

for the principal to meet his demands.

Appellee was known to the police to be suffering from mental

illness. When the arresting officers came to observe the alley

where appellee lived, his foster sister begged the officer to

find help for appellee and to have him put away somewhere for his

mental illness.

Upon his arrival at the Sex Crimes Unit, appellee was

interviewed for background information. ite was placed in

handcuffs in a small detention room. He exhibited bizarre and

psychotic behavior. The entire time he was in the detention

room, he kicked the walls and the door, and he kept yelling inane

comments, including that he was Ed Rendell's son and that he had

dinner with Mr. Rendell the night before at Mr. Rendell's home.

Mr. Rendell is the former District Attorney of Philadelphia and

he is white. Appellee is black.

J. 56037/86 - 3

Appellee was initially interrogated in an office by a

detective who knew that appellee suffered from mental illness.

During this interrogation, appellee acted childishly. He refused

to sit unless given a cigarette or soda ané cookies. The

detective ceased the interrogation and returned appellee to the

detention room where appellee continued his bizarre behavior.

Appellee was interrogated again and he continued to display

his childlike behavior. He was read the warnings mandated by

Miranda v. Arizona, 384 U.S. 436 (1966), and he made

incriminating statements. The court found that the interrogating

detective knew that a statement was essential to the prosecution

of the case. The victim had been unable to make a positive photo

identification of appellee after his arrest. The court found

that the detective skillfully manipulated appellee through a

process of reward and punishment to make the statements.

At the hearing on the motion to suppress, the Commonwealth

presented an expert who testified that appellee was capable of

understanding his Miranda warnings and that he was capable of

knowingly waiving his Fifth Amendment wndvtines against self-

incrimination. Appellee presented two experts who testified to

the contrary.

The court found after reviewing this testimony that appellee

was incapable of understanding the significance of the Miranda

J. 56037/86 - 4

warnings and of making a competent waiver of his right to remain

Silent or of his right to have counsel present. The court

accordingly concluded that the Commonwealth did not meet its

burden to show a knowing waiver of the Constitutional right.

The Commonwealth contends that appellee voluntarily chose to

speak after receiving Miranda warnings. The court, on the other

hand, found that appellee did not voluntarily waive Miranda; it

viewed his confession as the product of a deliberate effort on

the part of the police detective to exploit appellee's mental

weakness. We need not resolve this dispute. Regardless of

whether a waiver of Miranda is voluntary, the Commonwealth must

prove by a preponderance of the evidence that the waiver is also

knowing and intelligent.

Miranda holds that "(t]he defendant may waive

effectuation" of the rights conveyed in the

warnings "provided the waiver is made voluntarily,

knowingly and intelligently." The inquiry has two

distinct dimensions. First the relinquishment of

the right must have been voluntary in the sense

that it was the product of a free and deliberate

choice rather than intimidation, coercion or

deception. Second, the waiver must have been made

with a full awareness both of the nature of the

right being adandoned and the consequences of the

decision to abandon it. Only if the "totality of

the circumstances surrounding the interrogation"

reveal both an uncoerced choice and the requisite

level of comprehension may a court properly .

conclude that Miranda rights have been waived.

Moran v. Burbine, 89 L Ed 2d 410, 421 (1986) (citations omitted).

See also Edwards v. Arizona, 451 U.S. 477, 484 (1981); Tague v.

Louisiana, 444 U.S. 469 (1980); Commonwealth v. Scarborough, 491

Pa. 300, , 421 A.2d 147, 153 (1980);

J. 56037/86 - 5

Commonwealth v. Cannon, 453 Pa. 389, 309 A.2d 384 (1973).

Moreover, in reviewing an order granting a suppression motion, we

are bound by the suppression court's findings of fact if the

findings are supported by competent evidence. Commonwealth v.

Hackney, Pa. Super. , 510 A.2d S90 (1986).

With these principles in mind, we affirm the suppression

court. The court found that appellee suffered from chronic

undifferentiated schizophrenia and that this mental illness

prevented him from understanding the Miranda warnings. The court

also found that appellee was incapable of making a knowing and

intelligent waiver of his privilege against self-incrimination.

These findings are supported in the record by the testimony of

Dr. Berman, appellee's expert. Dr. Berman based his opinion on

a diagnosis of appellee after a personal interview and on

appellee's previous mental health history. Dr. Berman's

qualification as an expert was not challenged. Therefore, there

is competent evidence to support the court's findings.

Accordingly, the court correctly concluded that the Commonwealth

failed to prove that appellee knowingly and intelligently waived

his privilege against self-incrimination. We acknowledge that a

Dr. Schwartzmann testified for the Commonwealth and disputed Dr.

Berman's findings. However, this testimony only created a

credibility issue. It is exclusively the province of the

J. 56037/86 - 6

suppression court to determine the credibility of the witnesses

and the weight to be accorded their testimony. Commonwealth v.

Neely, 298 Pa.Super. 328, , 444 A.2d 1199, 1205 (1982),

overruled on other grounds, Commonwealth v. Holmes, 315 Pa.

Super. 256, 461 A.2d 1268 (1983).

Finally, the Commonwealth contends that this case is

controlled by Colorado v. Connelly, 93 L. Ed. 2d 473 (1986). In

Connelly, a mentally ill defendant waived his Miranda rights

because he believed that he was compelled to do so by the "voice

of God." Id. at 480. The United Statés Supreme Court held that

under the federal constitution this waiver would not be found to

be involuntary in the absence of misconduct on the part of

government officials. The Court, however, did not purport to

decide whether Connelly's waiver was knowing and intelligent.

ee Id. at 487 n.4 (majority opinion) and at 488 n.5 (Brennan,

Nn

J., dissenting). This remains a distinct and independent

requirement for the admission of a confession into evidence. See

Colorado v. Spring, 55 U.S.L.W. 4162, 4165 (U.S. Jan. 27, 1987).

In summary, federal law requires that a suppression court

undertake a two step inquiry into the validity of a Miranda

waiver. The court must first determine whether the waiver was

voluntary in the sense of being the result of an intentional

choice on the part of a defendant who had not been subject to

undue governmental pressure. The court must then focus on

cognitive factors to determine if the waiver was knowing and

ma , , ss *

J. 56037/86 - 7

intelligent - i.e. whether the defendant was aware of the nature

of the choice that he made by giving up his Miranda rights.

In the case sub judice, the trial court found on the basis

of credible evidence that appellee's confession was not made

knowingly because he was incapable of comprehending the meaning

of the Miranda warnings at the time he was interrogated.

Accordingly, we affirm the suppression order. Cf. State v. Daily

No. 16997, slip. op (W. Va. Dec. 16, 1986) (senile defendant with

low intelligence and hearing loss did not knowingly waive

Miranda). °

Order affirmed.

Olszewski, J. files a Concurring Opinion.

3. 56037/86 Li mei ee

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant : No. 02288 Philadelphia 1984

Appeal from the Order of July 18, 1984, in the

Court of Common Pleas of Philadelphia County,

Criminal Division, at No. 83-11-221-226.

BEFORE: WICKERSHAM, OLSZEWSKI, and BECK, JJ.

CONCURRING OPINION BY OLSZEWSKI, J.: FILED MAR -4 1987

Though agreeing with the majority's disposition of this

particular case, I write separately to emphasize that this

decision is limited to the facts of this case. The majority's

holding does not establish a per se rule that an accused is

incapable of waiving his constitutional rights whenever he

asserts that he is suffering from a mental illness. Both this

Court and our Supreme Court have recognized that the mental or

physical deficiencies of an accused are not conclusive evidence

of an accused's inability to waive his constitutional rights.

See Commonwealth v. Glover, 488 Pa. 459, 412 A.2d 855 (1980)

(there is no per se rule of inability to waive constitutional

rights based on mental deficiencies); Commonwealth v. Neely, 298

— a

4

Pa.Super. 328, 444 A.2d 1199 (1982) (a defendant may be sufferin

from a mental illness and still be capable of waiving his

constitutional rights).

J. 56037/86 boc &

Trial judges,

consequently, should de more wary

concluding that an accused is incapable >f waiving

constitutional rights merely because he suffers from a

illness. The

thoroughly

circumstances surrounding the particular case

accused made a knowing and intelligent

Supra.

to determine

waiver. See G

~~

J. 56037/86 - l

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

APPELLANT PENNSYLVANIA

V.

MICHAEL CEPHAS : NO.°'02288 PHILADELPHIA 1984

Appeal from the Order of July 18, 1984, in

the Court of Common Pleas of Philadelphia

County, Criminal Division, at No. 83-11-221-

226.

BEFORE: WICKERSHAM, OLSZEWSKI AND BECK, JJ.

OPINION BY BECK, J.: FILED DEC 15 1986

The Commonwealth appeals an order granting a suppression

motion. The court suppressed appellee's statements after finding

that appellee did not knowingly or voluntarily waive his

privilege against self-incrimination. We affirm.

Appellee was arrested on October 7, 1983 and charged with

rape, indecent assault, indecent exposure, unlawful restraint,

terroristic threats, and simple assault. He moved to suppress

two statements made to police during custodial interrogation.

After a hearing, the motion was granted. The Commonwealth

petitioned the court to reconsider. The court vacated its order

pending reconsideration. The court denied the petition and

reinstated its order granting the motion to suppress. This

timely appeal followed.

Initially, we note that we have jurisdiction of this appeal from

a pre-trial suppression order because the Commonwealth certified

in good faith that the order terminated or substantially

EXHIBIT "B"

J. 56037/86 - 2

-

handicapped its prosecution. Commonwealth v. Dugger, 506 Pa.

537, 486 A.2d 382 (1985).

Appellee was arrested on the basis of the victim's

description. He was taken to the Sex Crimes Unit of the

Philadelphia Police. At the time of his arrest, appellee was a

street person living in an alley near his foster family’s home.

He had a long history of mental illness and hospitalization for

this illness. He had consistently been diagnosed as a

schizophrenic. His nost recent hospitalization was about two

weeks before his arrest after he was seen in a tree near an

elementary school screaming at the school children and yelling

for the principal to meet his demands.

Appellee was known to the police to be suffering from mental

illness. When the arresting officers came to observe the alley

where appellee lived, his foster sister begged the officer to

find help for appellee and to have him put away somewhere for his.

mental illness.

Upon his arrival at the Sex Crimes Unit, appellee was

interviewed for background information. He was placed in

handcuffs in a small detention room. He exhibited bizarre and

psychotic behavior. The entire time he was in the detention

room, he kicked the walls and the door, and he kept yelling inane

comments, including that he was Ed Rendell's son and that he had

dinner with Mr. Rendell the night before at Mr. Rendell's home.

Mr. Rendell is the former District Attorney and he is white.

J. 56037/86 - 3

Appellee is black. A photograph taken of appellee while in

custody reflects his reaction to his arrest.

Appellee was initially interrogated in an office by a

detective who knew that appellee suffered from mental iliness.

During this interrogation, appellee acted childishly and

manipulatively. He refused to sit unless given a cigarette or

soda and cookies. The detective ceased the interrogation and

returned appellee to the detention room where appellee continued

his bizarre behavior.

Appellee was interrogated again and he continued to display

his childlike behavior. He was read his Miranda warnings and

made incriminating statements. The court found that the

interrogating detective knew that a statement was essential to

the prosecution of the case. The victim had been unable to make

a positive photo identification of appellee after his arrest.

The court found that the detective skillfully manipulated

appellee through a process of reward and punishment to make the

statements.

At the hearing on the motion to suppress, the Commonwealth

presented an expert who testified that appellee was capable of

understanding his Miranda warnings and that he was capable of

knowingly waiving his Fifth Amendment privilege against self-

incrimination. Appellee presented two experts who testified to

the contrary.

The court found after reviewing this testimony that appellee

was incapable of understanding the significance of the Miranda

J. 56037/86 - 4

warnings and of making a competent waiver of his right to remain

silent or of his right to have counsel present. The court

accordingly concluded that the Commonwealth did not meet its

burden to show a knowing waiver of the Constitutional right.

The Commonwealth contends that it complied with the mandates

of Miranda v. Arizona, 384 U.S. 436 (1966) and that the

statements obtained from appellee should be admissable at trial.

Although the Commonwealth fervently argues that the Miranda rules

were observed, the court found otherwise and concluded that

appellee's statements were involuntary. ~ We need not, however,

review this finding. Aside from compliance with Miranda, the

Commonwealth must also prove by a preponderance of the evidence

that the accused knowingly and intelligently waived his Fifth

Amendment privilege for statements that are the product of

custodial interrogation to be admissable. Tague v- Louisiana,

444 U.S. 469 (1980); Johnson v. Zerbst, 304 U.S. 458 (1938);

Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426

(1968). Moreover, the Commonwealth must show that the accused

was competent to make a knowing and intelligent waiver when the

accused claims a lack of competence. See Commonwealth v. Cannon,

453 Pa. 389, 309 A.2d 384 (1973); LaFave & Israel, CRIMINAL

PROCEDURE § 6.9(b), at 307 (1985). Also, in reviewing an order

granting a suppression motion, we are bound by the suppression

J. 56037/66 - 35

court's findings of fact if the findings are supported by

competent evidence. Commonwealth v. Hackney, Pa.Super. P

510 A.2d 800 (1986).

With these principles in mind, we affirm the suppression

court. The court found that appellee suffered from chronic

undifferentiated schizophrenia and that this mental illness

prevent appellee from understanding the Miranda-warnings. The

court also found that appellee was incapable of making a knowing

and intelligent waiver of his privilege against self-

incrimination. These findings are supported in the record by the

testimony of Dr. Berman, appellee's expert. Dr. Berman based

his opinion on a diagnosis of appellee after a personal interview

and on appellee's previous mental health history. Dr. Berman's

qualification as an expert was not challenged. As such, there is

competent evidence to support the court's findings. Accordingly,

the court correctly concluded that the Commonwealth failed to

prove that appellee knowingly and intelligently waived his

privilege against self-incrimination. | We acknowledge that Dr.

Schwartzmann testified for the Commonwealth and disputed Dr.

Berman's findings. However, this testimony only created a

credibility issue. It is exclusively the province of the

suppression court to determine the credibility of the witnesses

and the weight to be accorded their testimony. Commonwealth v.

Neely, 298 Pa.Super. 328, , 444 A.2d 1199, 1205 (1982),

overruled on other grounds, Commonwealth v. Holmes, 315 Pa. Super.

\@

J. 56037/86 - 6

256, 461 A.2d 1268 (1983).

The Commonwealth strenuously argues that the statements

should be admitted because it complied with the Miranda

requirements. Whether or not the Commonwealth complied with

Miranda is not relevant. If the Commonwealth sustained its

burden to prove compliance with Miranda, it had to also prove

that a waiver was made knowingly and intelligently. Under these

facts, part of this burden was to prove that appellee was

competent to make a knowing and intelligent waiver. The burden

to show competence was not met. Therefore, the burden to show a

knowing and intelligent waiver was not met, and the statements

were correctly suppressed.

Order affirmed.

Olszewski, J., files Concurring Opinion.

J. 56037/86

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

PENNSYLVANIA

MICHAEL CEPHAS,

Appellant : - No. 02288 Philadelphia 1984

Appeal from the Order of July 18, 1984, in the

Court of Common Pleas of Philadelphia County,

Criminal Division, at No. 83-11-221-226.

BEFORE: WICKERSHAM, OLSZEWSKI, and BECK, Jd.

CONCURRING OPINION BY OLSZEWSKI, J.: ~ FILED DEC15 1986

Though agreeing with the majority's disposition of this

particular case, I write separately to emphasize that this

decision is limited to the facts of this case. The majority's

holding does not establish a per se rule that an accused is

incapable of waiving his constitutional rights whenever he

asserts that he is suffering from a mental illness. Both this

Court and our Supreme Court have recognized that the mental or

physical deficiencies of an accused.are not conclusive evidence

of an accused's inability to waive his constitutional rights.

See Commonwealth v. Glover, 488 Pa. 459, 412 A.2d 855 (1980:

(there is no per se rule of inability to waive constitutional]

rights based on mental deficiencies); Commonwealth v. Neelv, 298

Pa.Super. 328, 444 A.2d 1199 (1982) (a defendant may be suffering

from a mental illness and still be capable of waiving his

constitutional rights).

J. 56037/86

Trial judges, consequently, should be more wary of

concluding that an accused is incapable of waiving his

constitutional rights merely because he suffers from a mental

illness. The trial judge must thoroughly examine all_ the

circumstances surrounding the particular case to determine if the

accused made a knowing and intelligent waiver. See Glover,

supra.

° eo ,

IN THE COURT OF COMMON PLEAS

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

CRIMINAL TRIAL DIVISION

COMMONWEALTH : NOVEMBER TERM, 1983

0221 Indecent Exposure

0222 Indecent Assault 5

0223 Rape 5

0224 Unlawful Restraint

> 0225 Terroristic Threats

MICHAEL CEPHAS >: 0226 Simnle Assault

July 25, 1984

Courtroom 436, City Hall

Philadelphia, Pennsylvania

BEFORE: HONORABLE BERNARD AVELLINO, J.

APPEARANCES :

'

|

|

|

aii i Saggy Sse A ct e+ ee a

SARAH VANDENBROOK,: ESQUIRE

Assistant District Attorney

For the Commonwealth.

JULES EPSTEIN, ESQUIRE ‘

Assistant Public Defender

‘Counsel for the Defendant

EXHIBIT “c"™

10

11

23

24

At this time I will give you my

Findings of Fact. There’ will be no Findings of

Fact on the issue of probable cause to arrest

the defendant as that issue is not seriously

allenged by the defendant at no time. Someone

The Findings of Fact will all relate

to the defendant's capabilities of knowingly and

voluntarily waiving his constitutional rights.

The Findings of Fact are as follows:

One, Michael Cephas, 23-year-ol14

defendant was arrested on October 7th, 1983, was

On the streets of the City and County of

Philadelphia.

Two, following his arrest he was

taken to the Sex Crimes Unit, Frankford and

Castor Avenues and placed in a small detention

spect S — —— —-—_— - @ a nsisaeioeiel

4

1 room in handcuffs in anticipation of questioning

2 about a reported rape at the chapel of the

3 University of Pennsylvania Hospital on 7/299/83,

4 He, at the time of his arrest and detention,

5 Michael had an extensive history of profound

6 mental illness. He had consistently been

7 diagnosed as a schizophrenic of the most serious

8 type.

fe) Michael spent from October the 7th,

19 1982 to invenhes the Sth, 198? at Philadelphia

11 Psychiatric Center. Again in August of 19983 he

12 was taken to Saint Mary's Hospital hy the

13 Philadelphia police where he was found naked on

14 a scaffold sixt feet up in the area of City

| e Hail

16 On September ?lst 1983, he was

17 again taken by the police to Saint Mary's

18 because he was up in a tree an4 by an elementary

19 school screaming at the school children ana @

20 yelling for the principal to meet his demands.

21 According to the records of Saint Mary's

a Hospital that was his fourth hospital admission °

aa for psychiatric psychotic episodes in that

24 institution alone.

\®

] The Court notes the proximity in

2 time of his arrest of October the 7th

3 Four, at the time of his arres:+

4 Michael was a Street Lerson. He lived in an

5 alley not far from the home Of his foster Tamily

6 In this alley he kept a series of costumes

7 neatly arranged in bags and stacks. He has been

8 Known by POlice to dress as Moses, a preacher, a

9 lumberjack who [Ould climb buildings ana trees

19 and punk rocker.

11 Five, when the arresting Officers

12 came to observe the alley whe Michael live?

| N21s foster sister begged the office to find

14 help for Michael and to have hin Put away

15 somewhere for his mental illness,

16 Six, Michael's behavior when he yw

17 at the interrogation by the police at the poli-

18 headquarters and during his confinement in the

19 detention room was bizarre ana Psychotic. The

20 entire time he was put in a small detention r -

21 handcuffed, he kicked the door. Walls and ken:-

22 yelling inane comments, including that he wae

23 Ed Rendell's Son, that he haa dinner with his

24 father the night before at Mr Rendell's home,

4

2

1 Mr. Rendell who is the p.a. for the City and

2 County of Philadelphia.

3 Seven, the photograph taken of ?

4 Michael when he was taxen into custody reflects

5 his reaction to this ceaahatedaee

6 Eight, during the first a

7 interrogation Michael acted very childishly ana

8 manipulatively. He refused to sit down unless

a

9 he was given a cigarettes He wanted the police

10 to give him a soda and cookies. He was unable

ai £O take the questioning seriously. And the ‘

12 interrogating officer finally abandoned the

13 interview believing him to be pompous.

14 Nine, during the absence of the e

15 assigned detective Michael continued his earlier

16 impulsive childhood behavior again in the

<

17 detention room.

18 Ten, the assigned detective durina

19 her absence was unable to obtain an ?

20 identification of Michael by his alleged victic

21 despite the fact that the victim had been

22 face-to-face with her assailant for forty-five |

23 minutes and had earlier Provided data to a 3

24 police artist which resulted in a positive

Se I CS EE TT LN

5

1 sketch which led to Michael's arrest and

2 detention.

3 Eleven, the assigned detective knew

4 that upon her return to the Sex Crimes Unit that

5 unless Michael confessed to the crime she would

6 have to release him.

7 Twelve, Michael stopped hollering

8 and banging, but when he was released from the

9 Detention Center he did,~ however, continue

19 child-like behavior. He did, for example,

ll remain standing despite instructions to sit and

>

12 he continued his defiance until he was proddet

13 by a cigarette. He was moreover given cooxies

, 14 and soda to reinduce him to adopt a more

15 cooperative attitude. :

16 Thirteen, prior to his being giver

» 17 cigarettes, cookies ani soda, Michael was read

18 the Miranda Warnings to which he gave verbal

19 responses ostensively suggesting he wished to

.

20 surrender his right to remain silent an4d/or to

21 counsel.

e 22 Fourteen, Michael's psychosis

23 includes a split personality. The other person

24 inhabiting Michael's body is named Johnny

Q

] Johnson

2 Fifteen, prior and during Michael's

3 interview the assigned detective knew that

4 Michael was suffering from a profound major

5 mental illness.

6 Sixteen, the assiyned detective

7 Skillfully manipulated Michael's mind through a

8 Process of reward and Punishment.

9 Seventeen, Michael was held for a

10 series of suggestive anda leading questions which

11 resulted in his making an incriminating

12 Statement.

13 Eighteen, despite continued

14 cajoling by the assigned detective, Michael

refused to Sign the statement because he was no

16 longer receiving any reward or punishment.

+ Nineteen, the expert testimony was

18 in agreement on one point, and that was that

19 Michael is suffering with serious schizophrenia

20 His behavior during the interrogation is

21 consistent with this diagnosis.

22 All experts agree that medication

‘ 4

23 can help control such Symptoms but there is no

24 substantial evidence this Court founda credible

YB

24

that any drugs had been administered to this

defendant and his behavior at the time cf the

interviews suggest just the opposite.

Twenty, Michael's conduct during

the interrogation (ade cendreeiiads that he dia

not appreciate legal jeopardy uf this position.

His childish and manipulative behavior and lona

history of mental illness is convincing he is

not in touch with reality-of the situation an4

he could not understand the significance of his

so-called Miranda Warnings or competently waive

his rights to remain silent or to have counse!

present.

Conclusions to be drawn from the

following Findings of Fact is that the defenidant,

Michael Cephas, was not capable of knowingly an:

voluntarily waiving his constitutional rights

when he made the statement to the police after

receiving his so-called Miranda Warnings.

The Commonwealth had the burden to

prove by the preponderanc?> of the evidence the

defendant's statement was a knowing and

voluntary waiver of his right not to incriminate

himself. The Commonwealth did not meet that

19

l burden in the Court's view.

? It is, of course, my responsibility

3 to determine Credibility ana weight of the

4 witnesses before their testimony. The Court is

5 mindful of a line of cases which suggest in

6 these cases that mentally ill people can

7 voluntarily surrender their right.

8 Notwithstanding that case, the Court is

9 Satisfied with this decision in this particular

10 case Michael was incapable at the time that he

11 Was interviewed to waive his rights.