Com. v. Hubble

Decision Date16 January 1986
Citation509 Pa. 497,504 A.2d 168
PartiesCOMMONWEALTH of Pennsylvania, Appellant, v. David E. HUBBLE, Appellee. 25 E.D. 1984
CourtPennsylvania Supreme Court

Brett O. Feese, Dist. Atty., Kenneth A. Osokow, Asst. Dist. Atty., Lycoming Co., for appellant.

Robert B. Elion, Lycoming Co., for appellee.



LARSEN *, Justice.

We granted the Commonwealth's petition for allowance of appeal in this case to determine whether the Superior Court, 318 Pa.Super. 76, 464 A.2d 1236 (1983), erred in awarding appellee a new trial on the grounds that his confession should have been suppressed under the principle enunciated by the United States Supreme Court in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), reh'g. denied 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981). A majority of this Court agrees that Edwards does not require suppression of appellee's confession and we therefore reverse the Superior Court.

On August 5, 1976, the bodies of Mrs. Claire Kepner and her two young children were discovered in their home near Muncy in Lycoming County. All had been shot with a .32 caliber gun, and one of the children had been slashed with a knife. 1 These three homicides engendered an intensive investigation by the Pennsylvania State Police which culminated with the arrests of David Hubble, appellee, as well as his brother, Robert K. Hubble, and Milton Scarborough in the summer of 1977.

Appellee was first interviewed by state troopers regarding the homicides in April of 1977 and then on several occasions in July. The events underlying the suppression matters occurred principally on July 12th and 13th, and, briefly, took place as follows. On July 12, 1977, appellee and his wife voluntarily accompanied Troopers John S. Shimko and Chester J. Zaremba to the State Police Barracks in Montoursville. At approximately 2:15 p.m., appellee gave a taped statement to the troopers which was not self-incriminating; this statement reiterated what appellee had previously informed the troopers regarding his brother's involvement in the homicides. Subsequently, in the process of leaving the barracks to be returned to their home, appellee and his wife indicated that they wished to speak with each other and were given an opportunity to do so. At approximately 5:45 p.m. appellee gave a second taped statement to the police, this time inculpating himself in the homicides. Appellee and his wife were then returned to their home.

The following day, appellee telephoned Trooper Shimko and informed him that everything he had told Shimko the previous day was a lie. However, upon voluntarily returning to the barracks with his wife on July 13th, appellee admitted that his July 12th confession had been truthful and he essentially reiterated that confession. Prior to each statement, and on several occasions previous to July 12th, appellee had been advised of his Miranda rights 2 and had signed a written waiver of those rights.

Appellee moved to suppress these statements of July 12-13, 1977 and a lengthy pretrial suppression hearing was conducted on November 11, 1977 before the Honorable John A. Walter in the Court of Common Pleas of Lebanon County. 3 The court denied appellee's motion to suppress and the case was tried before a jury. On November 25, 1977, the jury found appellee guilty of robbery, burglary, theft, conspiracy and three counts of murder of the second degree. Appellee filed post-verdict motions which were denied by the court en banc. 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 statements taken from him by the police. Specifically, defendant alleges that on July 12, 1977, he was subject to custodial interrogation calculated to evoke admissions without being adequately informed of his right to counsel and in the absence of an intelligent, informed waiver of such right.


We must first determine whether or not defendant was subject to custodial interrogation on July 12, 1977. The test for determining whether a person is in custody for Miranda 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). (footnote omitted)

Slip opinion of court en banc at 1-2.

Because appellee had been subjected to a polygraph examination and to intermittent 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 court cited and discussed Commonwealth v. Brown, 473 Pa. 562, 375 A.2d 1260 (1977) to support its view that a reasonable 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 statements posed to him by various state troopers, determined that appellee had been "subject to police conduct calculated 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 A.2d 575 (1969) and Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974). Thus the court held that appellee had been subjected to "custodial interrogation" for Miranda purposes.

The court further found that appellee had been adequately advised of his Miranda rights, that he knowingly, voluntarily and intelligently waived his right to remain silent and to have counsel 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 court en banc affirmed the denial of appellee's motion to suppress, and denied the remaining post-verdict motions as well. Appellee appealed that denial to the Superior Court, which reversed and remanded for a new trial.

Initially, the Superior Court identified the appropriate standards of appellate review of a suppression court's rulings:

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 conclusions 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 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, 361 A.2d 282, 290 (1976); see Culombe v. Connecticut, 367 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 [appellee] had been subjected to custodial interrogation on July 12, 1977 for Miranda purposes and that the investigating officers had engaged in interrogation and conduct calculated to or likely to evoke admissions. We agree with these legal conclusions. They are based upon the court's findings of fact and are amply supported by the record. See: Commonwealth v. Chacko, 500 Pa. 571, 578-82, 459 A.2d 311, 314-316 (1983) (numerous further citations omitted). The suppression court determined further that [appellee] had been adequately advised of his right to appointive counsel and that he had voluntarily and knowingly waived his right to such counsel. "We are bound by the court's findings of fact where, as here, they are supported by the record."

Id. at 1240. (citations omitted). 4

Nevertheless, the Superior Court reversed and awarded appellee a new trial based upon its understanding that appellee's waiver of his right to counsel was ineffective as a matter of law under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), reh'g denied 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981), and that, therefore, his confession 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 during custodial interrogation, 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 subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

....We ... emphasize that it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.

451 U.S. at 484-85, 101 S.Ct. at 1884-85 (footnote omitted).

In reliance upon Edwards, the Superior Court held, in the instant case:

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 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...

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