Com. v. Santiago
| Decision Date | 30 May 1991 |
| Citation | 591 A.2d 1095,405 Pa.Super. 56 |
| Parties | , 59 USLW 2764 COMMONWEALTH of Pennsylvania v. Wilfredo SANTIAGO, Appellant. |
| Court | Pennsylvania Superior Court |
David Rudovsky, Philadelphia, for appellant.
Laurie Magid, Asst. Dist. Atty., Philadelphia, for Com.
Before ROWLEY, WIEAND, OLSZEWSKI, MONTEMURO, BECK, KELLY, POPOVICH, JOHNSON and FORD ELLIOTT, JJ.
The defendant, Wilfredo Santiago, appeals a life sentence imposed following his conviction of first degree murder involving the assassination of Philadelphia Police Officer Thomas Trench. We reverse and remand for a new trial.
Santiago raises five contentions on appeal. Only two require discussion in this opinion. 1
First, Santiago contends that his fifth amendment right to counsel was violated when police reinitiated questioning outside the presence of counsel, after counsel had been requested and provided. In light of the United States Supreme Court's recent decision in Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990), we are constrained to agree. We cannot agree with the prosecution that error in this regard was harmless.
Secondly, and as an independently sufficient basis to require a new trial, Santiago contends that the trial court violated his due process rights when that court failed to disclose evidence to the defense which the trial court acquired during an interview with a key witness held in camera, outside the presence of both defense counsel and the prosecutor, when it became apparent during the course of the trial that the evidence was materially exculpatory. We agree that the trial court had a duty to disclose the evidence, that the issue was not waived and that the undisclosed evidence was sufficiently exculpatory to require a new trial.
Taken separately each error requires a new trial. Their combined effect is doubly compelling. Our reasoning follows.
On May 28, 1985, at approximately 3:00 a.m., 43 year old Police Officer Thomas Trench was found by his District Patrol Sergeant parked in his police cruiser with the motor running and the headlights on at the corner of 17th and Spring Garden Streets in Philadelphia. As the supervisor approached, he observed that the window of the driver's door to the squad car was down and that Officer Trench was slumped over the steering wheel with his hands in a relaxed position, and his gun still in its holster. Believing it highly improbable that the eleven year veteran officer had fallen asleep on duty, the Ninth District Patrol Sergeant investigated further only to find Officer Trench's eyes wide open with dried blood on his face. Closer examination revealed that Officer Trench had been shot at close range once in the face and once in the back of the neck, and was dead. With no clues to the motive or identity of the assassin immediately apparent, Officer Trench's supervisor radioed the call that an officer was down, and an intensive hunt for the assassin began.
Although for the next several weeks Philadelphia police would bring into custody and question numerous members of the community in the Spring Garden section of the city, 2 some of the most valuable clues in the search for the man who would ultimately be tried and convicted of the slaying came from the fruits of questioning and investigation in the hours immediately after the murder was discovered. In that brief period, homicide detectives learned, inter alia: that one man had allegedly been carrying a gun during a street fight which occurred seven hours before the murder and only four blocks away from the murder scene; that the same man had been arrested for his involvement in the street fight by a police officer assigned to the same patrol car in which Officer Trench was later found murdered; 3 and, that the same man, upon his release that night from custody, had allegedly vowed revenge upon the police for his arrest. That man is appellant, Wilfredo Santiago. 4
As the evidence mounted of Santiago's involvement in the street fight seven hours before the murder of Officer Trench, police re-arrested the then twenty-one year old Santiago on the afternoon of May 28, 1985, on charges related to the street fight. 5 At the police station, he was read his Miranda rights and was told that the police wished to question him about his knowledge of or involvement in the murder. On each of three occasions that May 28, 1985 afternoon, Santiago waived his Miranda rights and provided statements in which he denied any knowledge of or participation in the murder of Officer Trench. Before the last of this series of questioning, Santiago requested the aid of a lawyer. Although one was not afforded him at that time, counsel was provided for Santiago that evening at his arraignment in which he was formally charged with assault and terroristic threats in connection with the street fight. 6 Because he was unable to post bail set at $75,000, 7 Santiago was remanded to custody and has remained in custody since that time.
On June 11, 1985, police transported Santiago from his jail cell to the Police Administration Building pursuant to a warrant on further charges relating to his involvement in the street fight. Once there, he was again read his Miranda rights and asked by police if he wished to speak with them. Despite the advice of counsel appointed to represent him during the arraignment, Santiago agreed, waived his Miranda rights, and offered several statements. Likewise, on June 27, 1985, Santiago was again brought from his cell to the Police Administration Building where he once again waived his Miranda rights and agreed to questioning about the killing of Officer Trench. In each of these interviews, Santiago remained consistent in his denial of any involvement in the murder. During this final set of interrogations, however, Santiago admitted having possessed, but having sold two weeks before the murder, a .38 calibre handgun. On July 23, 1985, with the knowledge that Officer Trench had been shot with a .38 calibre gun, police charged Wilfredo Santiago with murder and possession of an instrument of crime.
Subsequently, the emotionally evocative nature of the events, intense pre-trial publicity, and inflamed segments of the public prompted the Commonwealth to seek and obtain a pre-trial protective order sealing all probable cause and wiretap affidavits based on the threat that public access to such information would pose to potential trial witnesses. 8 Thereafter, because public tension continued to mount, the Commonwealth requested the protective order be continued until trial. On April 23, 1986, the trial court ordered the probable cause and wiretap affidavits remain sealed, except as to defense counsel.
Philadelphia Newspapers Incorporated (PNI) then petitioned to intervene to object to the protective order. The trial court granted the petition and PNI argued that there was insufficient record evidence to support a finding of potential witness coercion. In response, the trial court held a series of in camera conferences with several potential witnesses in which each was placed under oath, offered assurances of confidentiality and court protection, and questioned only in the presence of a court reporter and the trial judge himself. Both the prosecutor and counsel for the defense were excluded from the in camera proceedings but were informed that the in camera testimony had been transcribed. At the end of these proceedings, the trial court found that a substantial potential for witness coercion existed, and continued the protective order.
Defense counsel thereafter brought a pre-trial motion to suppress all of the statements made by Santiago during the time he was in custody. The motion was denied.
On July 14, 1986, Santiago was brought to trial before a jury and was found guilty of murder in the first degree and possession of an instrument of crime. The jury later fixed the penalty at life imprisonment.
More than a year later, on October 19, 1987, an en banc panel of the Philadelphia Common Pleas Court was convened to hear post-verdict motions. On June 23, 1988, the court denied post-verdict motions and Santiago was formally sentenced to life imprisonment for murder, and a concurrent term of 2 1/2 to 5 years imprisonment for possession of an instrument of crime.
An unsuccessful appeal to a panel of this Court followed. A timely motion for reargument en banc was later granted by this Court on March 12, 1990.
Santiago contends his fifth amendment right to counsel under Miranda v. Arizona 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), was violated. The Commonwealth replies that no violation occurred and that any error was harmless. We find that Santiago's constitutional rights were violated and that the error in admitting poisoned fruits of the violations was not harmless.
On appeal, Santiago first contends that the trial court erred in failing to suppress the statements obtained from him in jail following his request to speak with counsel. Santiago argues that under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), such statements were taken in violation of his fifth amendment right to counsel. In view of the United States Supreme Court's most recent interpretation of the fifth amendment right to counsel, we are constrained to agree.
On December 3, 1990, the United States Supreme Court handed down its decision in Minnick v. Mississippi, supra. 9 There, in overturning a double murder conviction based in part on a confession obtained outside the presence of counsel after the defendant had requested and consulted with counsel, 10 the Supreme Court explained the bright line "prophylactic" rule originally announced in Miranda v. Arizona, supra, 384 U.S. at 474, 86 S.Ct. at 1627-28, 16 L.Ed.2d at 723, as follows:
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