Com. v. Busch

• Decision Date: 28 April 1998
• Citation: 713 A.2d 97
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Mark William BUSCH.
• Court: Pennsylvania Superior Court

Page 97

713 A.2d 97

COMMONWEALTH of Pennsylvania, Appellant v. Mark William BUSCH.

Superior Court of Pennsylvania.

Argued Dec. 9, 1997.

Filed April 28, 1998.

Michael Streily, Deputy Dist. Atty., Pittsburgh, for the Com.

William O. Schmalzried, Pittsburgh, for appellee.

Before DEL SOLE and FORD ELLIOTT, JJ., and CERCONE, President Judge Emeritus.

FORD ELLIOTT, Judge:

The sole issue presented in this appeal is whether the suppression court erred when it granted appellee's motion to suppress. Finding an error of law, we reverse.

Initially, we note that when reviewing the Commonwealth's appeal from the decision of the suppression court, 'we must consider only the evidence of the ... [defendant's] witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted.' 'When the evidence supports the suppression court's findings of fact, we may reverse only when the legal conclusions drawn from those facts are erroneous.'

Commonwealth v. Prosek, 700 A.2d 1305, 1307 (Pa.Super.1997) (citations omitted). The suppression court's factual findings, which are supported by the record, follow:

Detective David Leffler, of the Allegheny County Police Department, testified that he was investigating the theft of gemstones from a Mr. Mira's[ ¹] vehicle. The Defendant, Mark William Busch, according to the Detective was not only an employee of the victim, Mr. Mira, but also had been with the victim and left the business just a short time prior to the theft taking place. Therefore, the Detective felt that Mr. Busch was 'someone that needed to be spoken to in this investigation.' (ST p. 7)[ ²] The Detective stated that he got the Defendant's address and went to his residence on April 18, 1995. Upon arriving at the Defendant's residence the Detective stated that he informed the Defendant that 'we would like to speak to you about the theft', and that the Defendant did invite the Detectives to enter his residence. (ST p. 9) Detective Leffler stated ... that the questioning lasted approximately one half hour. Detective Leffler testified that the Defendant was also questioned on a second occassion [sic] that being October 18, 1995, the same date that a grand jury subpoena was being served on the Defendant. (ST p. 11). The Defendant was questioned at his home again on this instance. The Detective stated that this questioning of the Defendant was also unannounced and that the Defendant again allowed the Detectives into his home. During the questioning the Detectives showed the Defendant passages of letters in which Frank Tamburro offered testimony against his Co-Defendants and also passages in which the Defendnat's [sic] name is mentioned. The Detectives were aware of Mr. Busch's name being mentioned in the letters prior to the second questioning of the Defendant. (ST p. 11-15). Detective Leffler, testified that the investigation began on March 14, 1995, and that the Defendant's picture was used in a photo array, while interviewing witnesses from Rogers Hardware Store. On March 15, 1995, Detective Leffler also stated that the victim, Mr. Mira, was interviewed on March 16, 1995. The Detective relayed that the victim thought that the Defendant's behavior was 'out of the ordinary the day in question.' Also the Detective was told by the victim that he believed the Defendant was possibly involved with pilfering certain shipments. (ST p. 18-20) The Detective testified that the Defendant was a suspect and that 'he was one person we thought might be involved,' and that is why the Defendant was in the photo array. (ST p. 21-22) Detective Leffler stated that the investigation had been ongoing for a month prior to the first time the Defendant was questioned and that Defendant was the focus of the investigation. (ST p. 23) The Detective could not recollect the first time the Defendant's name came up and could not reconcile the discrepancy between the date of the photo array in which the Defendant's picture appeared in [sic] and the first date the Defendant's name came up, which supposedly was after the photo array. (ST p. 25-26) Detective Leffler stated that during the second round of questioning the Defendant was asked incriminating questions and was not mirandized, and eventually asked the Detectives to leave his home[.] (ST p. 31-31)

Suppression court opinion, 5/30/97 at 2-4. Following a grand jury investigation, appellee was charged with one count of criminal conspiracy. ³

Based on the facts set forth above, the suppression court found that "once the Defendant became a suspect in the case and the focus of the case, the Detectives should have given the Defendant his Miranda[ ⁴] warning." (Id. at 6.) We find that the suppression court erred in its legal conclusion that appellee was entitled to Miranda warnings when he was interrogated merely because he was a suspect in the case and/or a focus of the investigation. (Suppression court opinion, 5/30/97 at 6.) Our reasons follow.

The U.S. Supreme Court recently reviewed its position on the issue before us vis-a-vis the U.S. Constitution:

We held in Miranda that a person questioned by law enforcement officers after being 'taken into custody or otherwise deprived of his freedom of action in any significant way' must first 'be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.' ... An officer's obligation to administer Miranda warnings attaches, however, 'only where there has been such a restriction on a person's freedom as to render him 'in custody.' In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but 'the ultimate inquiry is simply whether there [was] a "formal arrest or restraint on freedom of movement" of the degree associated with a formal arrest.'

Our decisions make clear that the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned. In Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976), for example, the defendant, without being advised of his Miranda rights, made incriminating statements to Government agents during an interview in a private home. He later asked that Miranda 'be extended to cover interrogation in non-custodial circumstances after a police investigation has focused on the suspect.' 425 U.S., at 345, 96 S.Ct., at 1615[ ]. We found his argument unpersuasive, explaining that it 'was the compulsive aspect of custodial interrogation, and not the strength or content of the government's suspicions at the time the questioning was conducted, which led the Court to impose the Miranda requirements with regard to custodial questioning.' Id., at 346-347, 96 S.Ct., at 1616[ ]. As a result, we concluded that the defendant was not entitled to Miranda warnings: 'Although the "focus" of an investigation may indeed have been on Beckwith at the time of the interview ..., he hardly found himself in the custodial situation described by the Miranda Court as the basis for its holding.'

Stansbury v. California, 511 U.S. 318, 322-323, 114 S.Ct. 1526, 1528-1529, 128 L.Ed.2d 293 (1994) (per curiam) (other citations omitted). The Stansbury court then listed its numerous decisions reaffirming the conclusion it reached in Beckwith, supra. Stansbury v. California, 511 U.S. at 323-324, 114 S.Ct. at 1529-1530, citing Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977); California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983); Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984).

Shortly after the Supreme Court announced its decision in Beckwith, supra, the Pennsylvania Supreme Court re-evaluated its position on the issue before us in Commonwealth v. McLaughlin, 475 Pa. 97, 379 A.2d 1056 (1977). The McLaughlin court first recognized that prior Pennsylvania cases might be interpreted as requiring Miranda warnings disjunctively; either when a suspect is taken into custody or when he becomes the focus of the investigation. Commonwealth v. McLaughlin, supra at 101-103, 379 A.2d at 1058. The McLaughlin court rejected this interpretation, however, observing that in each of the earlier cases "there was also present a degree of 'deprivation of liberty' which the Beckwith court found Miranda to require." Id. Thus, the McLaughlin court found Pennsylvania law to be in harmony with Beckwith. Id. Accord Commonwealth v. Holcomb, 508 Pa. 425, 498 A.2d 833 (1985) (plurality), cert. denied, 475 U.S. 1150, 106 S.Ct. 1804, 90 L.Ed.2d 349 (1986). Recently, an en banc panel of this court reaffirmed the McLaughlin court's analysis when it noted that "The fact that a defendant was the focus of the investigation is ... a relevant factor in determining whether he was 'in custody,' but does not require, per se, Miranda warnings." Commonwealth v. Peters, 434 Pa.Super. 268, 275-276, 642 A.2d 1126, 1130 (1994) (en banc), allocatur denied, 538 Pa. 668, 649 A.2d 670 (1994).

Appellee recognizes that Pennsylvania law does not support the trial court's conclusion; therefore, he asks us to "revisit" the issue. (Appellee's brief at 9.) We must, however, decline appellee's invitation to rewrite the law of Pennsylvania. See Dominick v. Statesman Ins. Co., 692 A.2d 188, 192 (Pa.Super.1997), appeal denied, No. 1998 Pa. Lexis 466, --- Pa. ----, --- A.2d ---- (Pa. March 18, 1998) (noting that because "this Court's formal purpose is to maintain and effectuate the decisional law of our supreme court as faithfully as possible, we are not authorized to create or adopt a new standard[ ]"), citing Commonwealth v. Dugger, 506 Pa. 537, 545, 486 A.2d 382, 386 (1...