Com. v. Arroyo

• Decision Date: 21 January 1999
• Citation: 723 A.2d 162,555 Pa. 125
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Bryant ARROYO, Appellant.
• Court: Pennsylvania Supreme Court

555 Pa. 125

723 A.2d 162

COMMONWEALTH of Pennsylvania, Appellee, v. Bryant ARROYO, Appellant.

Supreme Court of Pennsylvania.

Argued October 23, 1997.

Decided January 21, 1999.

William C. Costopoulos, Lemoyne, Allen C. Welch, Clearfield, for Bryant Arroyo.

Randall L. Miller, Langhorne, Joseph C. Madenspacher, Lancaster, Susan E. Moyer, for the Com.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.

OPINION

CAPPY, Justice.

This is an appeal by allowance from the opinion and order of the Superior Court affirming the judgment of sentence of the Court of Common Pleas of Lancaster County. The primary issue in this matter is whether Bryant Arroyo's ("Appellant") right to counsel, as guaranteed by the Pennsylvania Constitution, was violated when the police refused to let an attorney speak with him following his waiver of his Miranda rights. For the following reasons, we now affirm.

On September 25, 1994 at 2:54 a.m., a Manheim Township police officer responded to a 911 call placed from the home of Appellant. When the officer arrived at the home, he found Appellant bent over Jordan Shenk ("Jordan"), who was the eight month old son of Pamela Shenk ("Shenk"), Appellant's girlfriend. Appellant stated to the police officer that he was performing cardiopulmonary resuscitation ("CPR") on the infant because he had found Jordan unresponsive in bed upstairs. The officer continued mouth-to-mouth resuscitation until an ambulance crew arrived at 2:56 a.m. At that time, Jordan was not breathing and had no pulse. The baby's skin was an ashen color, and he had approximately eleven purplish-brown marks on his lower chest and upper stomach. Jordan was transported to Lancaster General Hospital where he was pronounced dead at 3:40 a.m.

Appellant and Shenk arrived at police barracks on the morning of September 26, 1994 to be interviewed about the circumstances surrounding Jordan's death. They were questioned separately. Appellant was interviewed by Detectives Raymond Solt and Larry Mathias; upon arrival, Appellant was given a visitor's badge and was told he was free to leave at any time. The detectives also told Appellant that he was not under arrest, did not have to answer any questions put to him, and could leave the police barracks at any time. At that point, Detective Solt orally gave Appellant his Miranda¹ warnings and then read those warnings from a preprinted waiver form; Appellant signed the form. N.T., Suppression Hearing, 97, 99. During the course of questioning, the detectives pointed out to Appellant several inconsistencies in his previous statements. At that juncture, Appellant admitted that he punched Jordan several times in the chest and stomach area because he was upset and took out his frustration on the baby.²

Shenk's interview with the police was shorter than Appellant's. At the end of her interview, she expressed a desire to speak with Appellant. N.T., Suppression Hearing, at 197. The police told Shenk she could not see Appellant at that time; Shenk then departed the barracks and returned to her home. Id. at 198.

During the course of police questioning of Appellant, Attorney Richard Gray ("Attorney Gray"), an attorney whom Shenk had contacted in the afternoon of September 26, 1994, telephoned the police barracks and requested to speak with Appellant to determine if Appellant desired counsel.³ Attorney Gray's request was refused. N.T., Vol. 4, at 619. During the course of his interview with police, Appellant was not informed that Attorney Gray had attempted to contact him.

After his confession, Appellant was arrested and charged with criminal homicide. Appellant filed pre-trial motions, asserting, inter alia, that his confession was involuntary and should have been suppressed. One of Appellant's arguments was that the police improperly withheld from him the information that while he was being interviewed at the police station, Attorney Gray telephoned the police and expressed a desire to speak with Appellant. The suppression court denied Appellant relief and Appellant proceeded to trial.

As one of its witnesses at the trial, the Commonwealth introduced the testimony of Dr. Wayne Ross, a forensic pathologist who conducted the autopsy and determined that Jordan's death was caused by severe and repetitive beating with a fist on the baby's abdomen and chest. Applying the principles of biomechanics and occupant kinematics⁴, Dr. Ross opined that Jordan was struck approximately sixteen times, N.T., Vol. 2, at 242-243, with impact speeds of the blows "within the 20-mile-per-hour-range. . . ." N.T., Vol. 2, at 240. He concluded that Jordan's injuries were inconsistent with injuries related to CPR performed at the time Jordan was in full cardiac arrest. N.T., Vol. 2, at 248-249. He had several bases on which he rested his opinion. First, he stated that the presence of billions of white blood cells found in Jordan's abdomen at the site of the injuries indicated that the injuries which caused Jordan's death did not occur at the time he was in full cardiac arrest, which is when Appellant was administering CPR, but had occurred approximately one hour before death had occurred. Id. at 249. Second, the appearance of the bruises on Jordan's abdomen also indicated to Dr. Ross that Jordan's injuries were inflicted approximately one hour before death. Id. at 250. Finally, Dr. Ross stated that the injuries were too extensive and severe to have been caused by CPR. Id. at 249.

Appellant was convicted by the jury of first degree murder, and a sentence of life imprisonment was imposed. Appellant, represented by new counsel, appealed to the Superior Court, which affirmed the judgment of sentence in a memorandum opinion. Appellant filed a Petition for Allowance of Appeal with this court, and review was granted.

As his first issue, Appellant contends that a suspect undergoing custodial interrogation at a police station must be informed that a defense attorney has attempted to contact him to determine whether he desired an attorney. Appellant claims that where, as here, the police fail to inform the suspect that an attorney is trying to contact him, then any waiver by the suspect of his Miranda rights is invalid and any incriminating statements made by the suspect must be suppressed as being violative of the Pennsylvania Constitution.⁵

Appellant recognizes that pursuant to Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), such police conduct does not violate the federal constitution. The Moran Court examined a situation whose factual scenario was strikingly similar to the one presented in the matter sub judice: the police refused to allow an attorney to speak with the defendant, who had validly waived his Miranda rights, during interrogation. The defendant in Moran challenged the conduct of the police, alleging that his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to counsel had both been violated.

The Moran Court rejected these claims. As to the Fifth Amendment claim, it held that where a suspect executes a valid waiver of his Miranda rights, failure by the police to inform the suspect that an attorney tried to contact him does not invalidate the otherwise proper waiver. The Court reasoned that "[e]vents occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right." Id. at 422, 106 S.Ct. at 1141, 89 L.Ed.2d at 421. Thus, the Court reasoned, the suspect's Fifth Amendment privilege against self-incrimination was not violated.

The Moran Court also rejected the defendant's claim that his Sixth Amendment right to counsel had been violated. The Court noted that the "right to counsel" of which Miranda warnings inform a suspect does not spring from the Sixth Amendment right to counsel, but rather is a judicially created procedural device by which the suspect's Fifth Amendment privilege against self-incrimination is protected. Id. at 424, 106 S.Ct. at 1142, 89 L.Ed.2d at 422. The Court explained that the Sixth Amendment right to counsel is distinct from the "right to counsel" mentioned in a Miranda warning. A suspect has a right to be told his Miranda warnings at the point custodial interrogation begins. See id. The Sixth Amendment right to counsel, on the other hand, "[b]y its very terms . . . becomes applicable only when the government's role shifts from investigation to accusation." Id. at 430, 106 S.Ct. at 1146, 89 L.Ed.2d at 427. Therefore, a suspect has no Sixth Amendment right to counsel until the first formal charging proceeding has transpired, and it can be said that the formal initiation of adversarial judicial proceedings has occurred. Id. at 432, 106 S.Ct. at 1146, 89 L.Ed.2d at 428. The Court concluded that since the inculpatory statements at issue in Moran were given prior to the defendant being charged with the crime, then the defendant had no Sixth Amendment right which could be violated. Id. The Court also specifically declined the defendant's invitation to extend the protections of the Sixth Amendment to the pre-arraignment phase of proceedings as such a holding would not be consistent with the Sixth Amendment's purpose of protecting an individual who is the focus of the state's prosecutorial power. Id.

Accepting that Moran foreclosed all federal constitutional claims in this matter, Appellant instead claims that his rights as guaranteed by the Pennsylvania Constitution are greater than those afforded by the United States Constitution, and that these state rights were violated when the police did not allow Attorney Grey to speak with him.⁶ To examine this issue effectively, we must clarify what constitutional provisions are at issue here. Appellant recognizes that he has framed his issue as one which deprives him of his right to counsel pursuant to Article I, § 9, the state counterpart to the Sixth Amendment...