Com. v. Wyatt

• Decision Date: 25 February 1997
• Citation: 688 A.2d 710,455 Pa.Super. 404
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Kevin WYATT, Appellant.
• Court: Pennsylvania Superior Court

Page 710

688 A.2d 710

455 Pa.Super. 404

COMMONWEALTH of Pennsylvania, Appellee, v. Kevin WYATT, Appellant.

Superior Court of Pennsylvania.

Submitted July 3, 1995.

Filed Jan. 8, 1997.

Reargument Denied Feb. 25, 1997.

Barnaby Wittels, Philadelphia, for appellant.

Peter J. Gardner, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Before CAVANAUGH, POPOVICH and HOFFMAN, JJ.

POPOVICH, Judge.

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County following appellant's convictions on charges of murder in the first degree, two counts of robbery and criminal conspiracy. Herein, appellant asks this court to award him a new trial on grounds that the police violated his constitutional right to legal representation when he confessed to participating in the robbery of Gold Man Jewelry Store during which Mrs. Ju Yang Lee was slain. More particularly, appellant contends it was a violation of the Fifth Amendment of the Constitution of the United States for the police to have interrogated him concerning the robbery and murder because, at the time, appellant was incarcerated on unrelated charges and was represented by legal counsel in that unrelated case. In addition, appellant request a new trial on the grounds that he was prejudiced when the court permitted repetitive showing of the video tape of the murder. Upon review, we affirm.

Initially, we note that on November 21, 1995, we remanded this action for a hearing to determine whether appellant asserted his "non-offense-specific Miranda-Edwards right to counsel" at the time of his arrest on unrelated charges. We directed the lower court to suppress his statements and award appellant a new trial if, after a hearing, the evidence established that appellant's "non-offense-specific Miranda-Edwards right to counsel" were in effect at the time he was interrogated about the murder of Ju Yang Lee in the Gold Man Jewelry Store. See, Commonwealth v. Wyatt, 447 Pa.Super. 393, 669 A.2d 954 (1995), reargument denied, applying McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991).

On April 17, 1996, as directed by this court, a hearing was held before the Honorable Juanita Kidd Stout who was the trial judge in this case. Judge Stout, in her opinion of September 26, 1996, set forth the following facts:

... At the hearing, Detective Kelly testified that he sought to interrogate appellant about the [unrelated] auto theft on the day of his arrest, March 25, 1990. He began the interview by reading the warnings and questions listed on the Miranda warnings. When he reached question number 3, Do you wish to remain silent?, appellant answered in the affirmative and Detective Kelly terminated the interview. Specifically, he did not ask any of the other questions relative to appellant wanting an attorney. There was no further communication between appellant and Detective Kelly concerning the auto theft case.

Appellant was released from custody on April 8, 1990, two weeks after the arrest and attempted interview of March 25th. Thereafter, on May 2, 1990, he was arrested for failing to appear for a drug case which had been listed on April 23, 1990.

While incarcerated as a result of the May 2nd arrest, appellant pled guilty to the auto theft case on May 8, 1990. Appellant was represented by counsel and sentencing was deferred.

On May 22, 1990, while still in custody and represented by counsel, appellant was taken to the Homicide Unit and interrogated by Detective Devlin concerning the robbery/murder of Ju Lee Yang which occurred on March 19, 1990 at the Gold Man Jewelry Store. After receiving the Miranda warnings and waiving the same, appellant, in the absence of counsel, confessed to his participation in the robbery/murder.

Opinion, 9/26/96, pp. 2-3.

Based on those facts, the lower court found "that appellant did not assert his 'non-offense-specific Miranda-Edwards right to counsel' at the time of his arrest and incarceration on the unrelated auto theft charge." Opinion, 9/26/96, p. 4. However, we must disagree with this conclusion of the court below. It is undisputed that at the time of his arrest on theft charges, appellant asserted his right to remain silent and further interrogation ceased. Consequently, in an abundance of caution, we find that appellant did assert his non-offense-specific Miranda-Edwards right to counsel at the time of his arrest. See, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

However, the fact that appellant asserted his Miranda rights at the time of his arrest on unrelated charges does not end our inquiry. We must further determine whether the record reveals his assertion of those rights remained in effect at the time of his interrogation on the charges sub judice. As the Commonwealth points out, appellant was released from custody on the theft charges on April 8, 1990, and was not reincarcerated until almost a month later when on May 2, 1990, when he was arrested for failing to appear before the court on drug charges. Thus, at the time of the interrogation sub judice, appellant had not been in continuous custody since his assertion of his right to counsel.

In McNeil, 501 U.S. at 176-77, 111 S.Ct. at 2208, the United States Supreme Court intimated that a suspect must be in continuous custody for his non-offense-specific Miranda-Edwards rights to remain in effect, when the high court stated:

In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (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 "until counsel has been made available to him," 451 U.S., at 484-485, 101 S.Ct., at 1884-1885--which means, we have most recently held, that counsel must be present, Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (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 suspects 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, 110 S.Ct. 1176, 1180, 108 L.Ed.2d 293 (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, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988). (Emphasis added).

Although the United States Supreme Court has not spoken definitively on the question of whether a break in custody eliminates the need for the protections of the Miranda-Edwards prophylactic rule, the court's holding in McNeil, supra, certainly implies that continuous custody is a requirement for the application of the rule.

Indeed, various circuits of the Federal Court of Appeals have held that if, after invoking one's Fifth Amendment right to counsel, a suspect is released from custody, then the concerns that prompted the Miranda-Edwards prophylactic rule are sufficiently minimized such that any violation of the Fifth Amendment right to counsel allegedly founded upon those prior request for counsel simply dissolves. United States v. Barlow, 41 F.3d 935, 945-946 (5th Cir.1994); Dunkins v. Thigpen, 854 F.2d 394, 397 (11th Cir.1988) ("a break in custody dissolves a defendant's Edwards claim"), cert. denied, 489 U.S. 1059, 109 S.Ct. 1329, 103 L.Ed.2d 597 (1989); United States v. Hines, 963 F.2d 255, 257 (9th Cir.1992) ("Edwards rule does not apply to suspects who are not in continuous custody between the time they request counsel and the time they are reinterviewed"); United States ex rel. Espinoza v. Fairman, 813 F.2d 117, 125 (7th Cir.1987), cert. denied,483 U.S. 1010, 107 S.Ct. 3240, 97 L.Ed.2d 745 (1987) (same); United States v. Skinner, 667 F.2d 1306, 1309 (9th Cir.1982), cert. denied, 463 U.S. 1229, 103 S.Ct. 3569, 77 L.Ed.2d 1410 (1983) (same); McFadden v. Garraghty, 820 F.2d 654, 661 (4th Cir.1987) (same).

In other words, once a suspect is released from police custody, he is no longer subject of the inherently compelling pressures of custodial interrogation and his Fifth Amendment rights which the Miranda-Edwards prophylactic rule was designed to protect are no longer in jeopardy. Certainly, the suspect who is free from police custody has a substantial opportunity to consult with an attorney before any further contact with the police.

We are in agreement with the federal circuits and hold that if a suspect is released from custody after assertion of his Fifth Amendment right to counsel and has had a reasonable opportunity to contact his attorney, the Miranda-Edwards prophylactic rule, as applied in McNeil, supra, does not bar the admission of any subsequent statements of the suspect, provided he has otherwise validly waived his right to counsel. ¹

In sum, we find that appellant's statements were admissible at his trial. Although appellant had asserted his non-offense-specific Fifth Amendment right to counsel when in custody on automobile theft charges, he was released from prison for almost a month before his arrest for failing to appear on drug charges. Clearly, appellant had a substantial opportunity to consult with counsel during his release, and he was quite free of the coercive effects of custodial interrogation. Simply put, his Miranda-Edwards non-offense-specific right to counsel dissolved upon his initial release from custody, and appellant was free to waive voluntarily that right without counsel...