Com. v. Morgan

• Decision Date: 03 June 1992
• Citation: Com. v. Morgan, 610 A.2d 1013, 416 Pa.Super. 145 (Pa. Super. Ct. 1992)
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Yvonne R. MORGAN.
• Court: Pennsylvania Superior Court

Page 1013

610 A.2d 1013

416 Pa.Super. 145

COMMONWEALTH of Pennsylvania, Appellant, v. Yvonne R. MORGAN.

Superior Court of Pennsylvania.

Argued Oct. 23, 1992.

Filed June 3, 1992.

Syndi L. Norris, Asst. Dist. Atty., Carlisle, for Com., appellant.

Robert J. Mulderig, Carlisle, appellee.

Before WIEAND, MONTEMURO and KELLY, JJ.

KELLY, Judge:

In this appeal we are asked to determine whether it is error to suppress inculpatory statements made by a suspect who has been advised of and thereafter exercises Miranda rights in a non-custodial setting. We find that under the circumstances herein, it was error to suppress the statements and reverse.

I. FACTS AND PROCEDURAL HISTORY

The trial court set forth its findings as follows:

1. On June 11, 1990, a patrolman of the Mechanicsburg Police Department, by telephone, asked the defendant to stop in the police department to discuss a theft incident at the York Federal Bank located in Mechanicsburg.

2. Defendant arrived with another female employee of the Bank. The patrolman explained generally about his investigation of the theft and told the defendant he wanted to hear her side of the story.

3. The defendant asked if she was under arrest. The patrolman said she was not and that she could leave at any time.

4. The patrolman then gave defendant her Miranda warnings,. She said that she understood and she signed a written waiver of her Miranda rights. A copy marked Commonwealth Exhibit No. 1 was introduced.

5. After she signed the waiver, the defendant stood up and said she did not want to talk and wanted to talk to an attorney.

6. The patrolman did not ask any questions at the time, but proceeded to tell the defendant what procedure he would then follow about filing charges before a District Justice and the setting of bail.

7. After the above was done, the defendant said she would give a statement. The officer said he could not talk to her since she said she initially wanted an attorney. The officer also reminded her again that she was free to leave and was not under arrest.

8. She then said that she did not want an attorney and would give a statement, which she did.

9. She was then placed under arrest.

Trial Court Opinion at 1-2. Thereafter, the defendant moved to suppress the statements made. The trial court granted the suppression request.

The Commonwealth has timely appealed the suppression order alleging in good faith that it substantially handicaps its prosecution of the defendant, appellee. The Commonwealth urges that there existed no cause to exclude the statements from trial because the record reveals no evidence that the statements were derived unconstitutionally. After a thorough review of the relevant law and the facts of this case, we agree.

In concluding that appellee's confession was involuntary, the trial court set forth essentially two grounds on which to base its decision. We will address each in turn.

II. PRESUMPTIVE COERCION

The first basis for the trial court's decision may be seen from the following excerpt of the trial court opinion:

We are not aware of any factual situation on point in our county or state appellate decisions. Also, we do not wish to extend our appellate case law in holdings that suppress voluntary statements made by criminal defendants. We believe, however, that in this case defendant's due process rights were violated by the officer's actions. First, we believe that if the police advise a person of their Miranda rights, even in a non-custodial setting, and the person chooses to exercise their right to counsel, then that exercise should be honored by the police and all questioning should cease. We realize that the police are given little guidance in this area, but we believe that by taking this preventive measure, both the defendant's due process rights and the police's duty to find the truth will be protected. Thus, in this case all questioning and conversation should have ceased.

Trial Court Opinion at 8-9 (emphasis added).

The reasoning used in this portion of the trial court's opinion is born, of course, from the doctrine announced in the landmark decision Miranda v. Arizona, 384 U.S. 436, 86 [416 Pa.Super. 149] S.Ct. 1602, 16 L.Ed.2d 694 (1966). Sometimes called "presumptive coercion," ¹ this doctrine's evolution was chronicled most recently by the United States Supreme Court:

In Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, 10 ALR 3d 974 (1966), we established a number of prophylactic rights designed to counteract the "inherently compelling pressures" of custodial interrogation, including the right to have counsel present. Miranda did not hold, however, that those rights could not be waived. On the contrary, the opinion recognized that statements elicited during custodial interrogation would be admissible if the prosecution could establish that the suspect "knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Id., at 475, 16 L.Ed.2d 694, 86 S.Ct. at 1628, 10 ALR 3d 974.

In Edwards v. Arizona, 451 U.S. 477, 68 L.Ed.2d 378, 101 S.Ct. 1880 (1981), we established a second layer of prophylaxis for the Miranda right to counsel: once a suspect asserts the right, not only must the current interrogation cease, but he may not be approached for further interrogation "until counsel has been made available to him," 451 U.S. at 484-485, 68 L.Ed.2d 378, 101 S.Ct. 1880, [1885]--which means, we have most recently held, that counsel must be present, Minnick v. Mississippi, 498 U.S. 146, 112 L.Ed.2d 489, 111 S.Ct. 486 (1990). If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect's statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards. This is "designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights," Michigan v. Harvey, 494 U .S. 344, 350, 108 L.Ed.2d 293, 110 S.Ct. 1176 [, 1180] (1990). The Edwards rule, moreover, is not offense-specific: once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present. Arizona v. Roberson, 486 U.S. 675, 100 L.Ed.2d 704, 108 S.Ct. 2093 (1988).

McNeil v. Wisconsin, 501 U.S. 171, ----, 111 S.Ct. 2204, 2208, 115 L.Ed.2d 158, 167-68 (1991).

Instantly, despite its stated reluctance to do so, the trial court, in holding as it did, in fact added a chapter to the "presumptive coercion" chronicle. This we believe was error.

Here, the parties do not contend, the trial court did not find, and the facts do not suggest that appellee was in custody at the time she was questioned by the police officer. The account of the incident given by the police officer, which was in relevant part corroborated by appellee, established that appellee came to and remained at the police station of her own volition. She was repeatedly advised that she was free to leave at any point. She was also advised of her Miranda rights while at the police station. ² Significantly, appellee testified that she had understood that she was not under arrest and that she could have left the police station whenever she liked. N.T. 1/08/91 at 32-33. Under these circumstances, she was not legally in custody. See Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983); Commonwealth v. Ellis, 379 Pa.Super. 337, 355-57, 549 A.2d 1323, 1332 (1988). Given this, it is clear the holdings in neither Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), nor its progeny, are applicable herein. It is well settled that, " Miranda warnings are necessary only on those occasions when a suspect is undergoing actual 'custodial interrogation.' " Commonwealth v. Fento, 363 Pa.Super. 488, 492, 526 A.2d 784, 786 (1987); see also Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714; Commonwealth v. Ellis, supra, 549 A.2d at 1329 (citing cases). Thus, generally where the suspect is not in custody, the exercise of Miranda rights need not be honored. As Judge Wieand recently explained in a case strikingly similar to this, Commonwealth v. Reed, 400 Pa.Super. 207, 583 A.2d 459 (1990),

Instantly, it is clear that appellant was not in custody at the time he made the remark about getting counsel. He had voluntarily agreed to accompany the police to the station for further questioning and he had been informed repeatedly that he did not have to answer questions and was free to leave at any time. Indeed, he had agreed in writing, without coercion, that he understood that he wasn't under arrest, was free to leave at any time, and could refuse to answer questions. When appellant suggested the possible need for a lawyer, Lieutenant Holmberg told him again that he was free to go. Appellant, however, did not leave. Instead, he remained and confessed to the killing. Under these circumstances, appellant's statements were not subject to suppression merely because the questioning continued after he mentioned the possibility of getting a lawyer.

Id., 583 A.2d at 464 (emphasis added). Although it failed to command a majority in this Court, this aspect of the Reed decision may find adequate support among several members of the United States Supreme Court. A 6-3 majority of that Court recently stated:

We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than "custodial interrogation".... If the Miranda right to counsel can be invoked at a preliminary hearing, it could be argued, there is no logical reason why it could not be invoked by a letter prior to arrest, or indeed prior to identification as a suspect. Most rights...