Commonwealth v. Knoble, 2 MAP 2010
| Decision Date | 28 March 2012 |
| Docket Number | No. 2 MAP 2010,2 MAP 2010 |
| Parties | COMMONWEALTH OF PENNSYLVANIA, Appellant v. DAVID S. KNOBLE, Appellee |
| Court | Pennsylvania Supreme Court |
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
In February, 2005, appellee David Knoble entered an open guilty plea to charges of endangering the welfare of a child, corruption of minors, and criminal conspiracy to commit statutory assault, admitting he conspired with his then-wife for her to engage in sexual intercourse with his 14-year-old son while he observed. He was sentenced to an aggregate term of one to two years imprisonment followed by four years probation and was ordered to comply with any special probation conditions imposed by the Pennsylvania Board of Probation and Parole.
After serving the sentence of imprisonment, Knoble was placed on probation; he signed an Acceptance for State Supervision form agreeing to abide by the specialprobation conditions imposed by the court and the supervising probation staff. One condition required successful completion of a sex offender outpatient program; Knoble was advised that termination from or unsuccessful completion of the program would constitute a probation violation. He underwent a sex offender intake assessment with the treatment facility and began attending a specialized high-risk weekly counseling group. Six months into his probationary term, Knoble was terminated from the program for dishonesty during his sexual history therapeutic polygraph tests and was arrested for violating his probation.
At Knoble's Gagnon II hearing,1 Jon Welsh, a certified sex offender treatment specialist in charge of Knoble's sexual counseling group, testified that one of the primary stages of sex offender treatment is for an individual to take a sexual history therapeutic polygraph in order to objectively assess a participant's self-reported sexual history. After failing the polygraph, Knoble admitted during group treatment that he had been dishonest about his sexual history. Knoble took a second polygraph, and again disclosed during a subsequent group therapy session that he had been deceptive about essential aspects of his sexual history. Knoble admitted he had victimized other minors, and accepted responsibility for a sexual offense against a minor for which he had previously been acquitted. Due to his continued dishonesty, Knoble was released from the program.
Following the hearing, the court revoked Knoble's probation, determining the sex offender treatment was a reasonable special probation condition which Knoble violated by not completing the program; the court sentenced Knoble on his underlying offenses.
The Superior Court reversed, concluding the questions posed during the polygraph tests improperly required Knoble to answer incriminating questions that would result in the divulgence of previously unreported criminal behavior. Commonwealth v. Knoble, No. 1883 EDA 2008, unpublished memorandum at 12 (Pa. Super. filed June 24, 2009). The court relied on Commonwealth v. Shrawder, 940 A.2d 436, 443 (Pa. Super. 2007), which determined therapeutic polygraph tests were a proper element in sex offender treatment programs and did not violate the Fifth Amendment protection against self-incrimination so long as the inquiries related to the underlying sentenced offense and did not compel the participant to provide information which could be used against him in a subsequent criminal trial. The court also noted Shrawder's holding that if a probationer is asked to answer incriminating polygraph questions, he remains free to assert his Fifth Amendment privilege against self-incrimination. Knoble, at 9-10 (citing Shrawder, at 443).
The Superior Court found Knoble was repetitively asked about and often told to provide information regarding his sexual history and conduct unrelated to the underlying offense, and Knoble was discharged from the program when he admitted his dishonesty in answering those questions. Id., at 12. Applying Shrawder, the Superior Court held such inquiries violated Knoble's Fifth Amendment rights, and the trial court erred in finding Knoble violated his probation. Id., at 12-13.
We granted allocatur to determine "[w]hether the Superior Court erred in concluding a probationer may invoke his Fifth Amendment right against self-incrimination for an unrelated offense, regardless of whether the information will be used in subsequent criminal proceedings, and whether such invocation must be made at the time of interrogation." Commonwealth v. Knoble, 988 A.2d 1288 (Pa. 2010) (per curiam). As thisissue involves a pure question of law, our standard of review is de novo and our review is plenary. Commonwealth v. Patton, 985 A.2d 1283, 1286 (Pa. 2009).
The Fifth Amendment provides "no person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. This prohibition not only permits the refusal to testify against one's self when a defendant in a criminal trial, but "in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate [the speaker] in future criminal proceedings." Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (citation omitted).2
The Fifth Amendment privilege is not self-executing, and answers are generally not considered compelled "within the meaning of the Fifth Amendment unless the witness is required to answer over his valid claim of the privilege." Id., at 427. "[I]n the ordinary case, if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the government has not 'compelled' him to incriminate himself." Id. (quoting Garner v. United States, 424 U.S. 648, 654 (1976)).
The Commonwealth contends there was no Fifth Amendment violation because Knoble's statements were not used against him at the probation revocation hearing or in any subsequent criminal case. It argues the constitutional right against self-incrimination only occurs if one has been compelled to act as a witness against himself in a criminal proceeding, and a probation revocation hearing does not constitute such a proceeding. See Gagnon, at 782 (). TheCommonwealth concedes Knoble may dispute the statement's use in subsequent criminal proceedings other than those for which he has been convicted, but claims he has no constitutional right to preclude their use at the revocation hearing.
The Commonwealth also argues no Fifth Amendment violation occurred because Knoble failed to invoke his rights during sex offender therapy. It contends the right against self-incrimination is not self-executing, and Knoble's failure to raise the privilege during the polygraph examinations and interviews precludes his challenge to the statements at the revocation hearing. Thus, no Fifth Amendment violation occurred because Knoble was not compelled to answer over a valid claim of privilege.
Knoble contends the polygraph examinations should be deemed per se unconstitutional because the questions sought information regarding uncharged criminal conduct, which is impermissible under Shrawder.3 He argues he was compelled to answer the polygraph questions within the meaning of the Fifth Amendment because his probationwould be revoked if he did not participate and pass the examination. He believes his failure to raise the privilege should be excused due to his belief that he would be returned to prison if he did not answer the questions.
Knoble argues the information obtained from the examination need not be used against him in order for the polygraph to be considered unconstitutional, as the information sought could lead to the disclosure of facts that would establish guilt or provide an essential link by which guilt could be established. See Commonwealth v. Saranchak, 866 A.2d 292, 303 (Pa. 2005) (). He also claims the information gained from the polygraph examination has been used against him as a means of probation violation, as a basis for new criminal charges raised against him, and could be used to establish a modus operandi permitting his prosecution in cases where he did not even know the victim.
The United States Supreme Court addressed the issue of Fifth Amendment application to probationers in Murphy, a factually similar case to the one before us. As part of his probation, Murphy was required to participate in a sex offender treatment program, report to his probation officer as required, and be completely honest with the officer in all matters. Murphy, at 422. At some point, the probation officer was advised that during the course of treatment, Murphy admitted to a previous rape and murder. Id., at 423. The officer set up a meeting with Murphy, and Murphy admitted to the previous rape and murder. Id., at 424. The officer informed Murphy she had a duty to inform the authorities of the conduct; Murphy was eventually arrested and charged with first degree murder. Id., at 424-25.
The Court granted certiorari to consider whether "a statement made by a probationer to his probation officer without prior warnings is admissible in a subsequent criminal proceeding." Id., at 425. The Court noted the Fifth Amendment privilege speaks to compulsion and does not preclude voluntary testimony regarding incriminatory matters; therefore, if a speaker desires the privilege's protection, he must claim it, or his statement will not be considered "compelled" within the meaning of the Constitution. Id., at 427 (citing ...
To continue reading
Request your trial