Commonwealth v. Lukach, 693 MDA 2016

• Decision Date: 11 April 2017
• Docket Number: No. 693 MDA 2016,693 MDA 2016
• Citation: 163 A.3d 1003
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Joshua Michael LUKACH
• Court: Pennsylvania Superior Court

163 A.3d 1003

COMMONWEALTH of Pennsylvania, Appellant

v.Joshua Michael LUKACH

No. 693 MDA 2016

Superior Court of Pennsylvania.

Submitted December 5, 2016

FILED APRIL 11, 2017

John T. Fegley, Assistant District Attorney, Pottsville, for Commonwealth, appellant.

Jeffrey M. Markosky, Mahanoy City, for appellee.

BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.^*

OPINION BY RANSOM, J.:

The Commonwealth of Pennsylvania appeals from the order of April 5, 2016, granting in part Appellee Joshua Michael Lukach's suppression motion.¹ After careful review, we affirm.

The relevant facts and procedural history of this case are as follows. See Suppression Court Opinion (SCO), 4/2/16, at 2–18.² On August 6, 2015, at approximately 5:00 a.m., Police Chief Richard Wojciechowsky of the Pottsville Bureau of Police was called to a crime scene at South 12th Street in Pottsville. Upon arriving, he discovered that John Brock's body had been found in the street. Police recovered a pair of white gloves from the alley behind Mr. Brock's home, a wallet from Mr. Brock's dresser, and a bank card on the bedroom floor. Chief Wojciechowsky received information indicating that Appellee and Shavinskin Thomas were persons of interest in the homicide and that they had previously been involved in a crime at Mr. Brock's home. Two officers reported seeing Appellee and Mr. Thomas walking near the crime scene at approximately 6:00 a.m. that morning.

At 11:00 a.m., Chief Wojciechowsky observed Appellee and Mr. Thomas near the crime scene. He asked Appellee what he was doing in the area, and Appellee responded that he was checking what was going on. Appellee claimed that on the preceding evening, he and Mr. Thomas walked around the city together, stopping at an A–Plus store around 5:00 a.m. A Pottsville police officer went to the store and reviewed security footage from the relevant time. Still photographs were taken of the two customers present in the store; however, neither was Appellee.

Around 5:00 p.m. that evening, Appellee's mother consented to a search of her home. Police recovered box cutters from Appellee's bedroom, aware that box cutters had been used in the murder. Police also recovered a pair of white work gloves which were similar to gloves found in the alley behind Mr. Brock's home.

On August 7, 2015, Appellee was arrested on two outstanding summary offense warrants and brought to City Hall for questioning. Chief Wojciechowsky advised Appellee of his Miranda³ rights, and Appellee acknowledged he understood them. Chief Wojciechowsky questioned Appellee about his whereabouts on the night of the murder. At 1:25 p.m., Appellee informed Chief Wojciechowsky, "I don't know, just, I'm done talking. I don't have nothing to talk about." See TCO at 12.

Instead of taking this as a request to end the conversation, Chief Wojciechowsky advised Appellee that he did not have to speak to police, stating, "You don't have to say anything, I told you that you could stop." However, Chief Wojciechowsky continued to ask questions, told Appellee that he did not believe his story, and informed Appellee that police officers had collected evidence from the crime scene for processing. At 1:36 p.m., police officers confiscated Appellee's shoes. Chief Wojciechowsky continued to pepper Appellee with questions.

At 1:52 p.m., Appellee requested that Chief Wojciechowsky stop the video tape. At 1:57 p.m., Chief Wojciechowsky turned the videotape back on and asked Appellee whether he had been threatened, yelled at, or promised anything while the tape was off. Appellee responded that he had not. Appellee then requested to speak to a representative of the District Attorney's Office in exchange for a potential "deal." The video stopped again at 2:00 p.m., and the prosecutor arrived at 2:23 p.m., at which time the video was turned on again.⁴ Appellee was again advised of his Miranda rights by Chief Wojciechowsky.

Subsequently, Appellee gave a detailed statement to police, confessing his involvement in the murder. As a result of Appellee's statement, police obtained video surveillance of Appellee accessing an ATM on the morning of the homicide. Police also recovered from a storm drain the following evidence: the victim's credit card, hat, shirt, and sunglasses.

Appellee was charged with murder. Prior to trial, he filed an omnibus pre-trial motion, seeking to suppress statements made to police after he stated that he "[did not] want to talk" and was "done talking." The motion also sought to suppress evidence recovered as a result of Appellee's statements, including Appellee's shoes.

Hearings were held January 12, 2016, and January 13, 2016. Chief Wojciechowsky testified that he did not interpret Appellee's statements as an immediate invocation of the right to remain silent and wanted to "be absolutely certain that [Appellee] was still aware of that right." Detective Kirk Becker testified that if the credit card had not been recovered from the storm drain, police could have obtained the ATM footage regardless through credit checks and by subpoenaing Mr. Brock's account access records.

On April 5, 2016, the court issued an order granting Appellee's motion in part. The court suppressed statements made by Appellee following his assertion that he was done talking; Appellee's shoes and any evidence obtained from them; and the items recovered from the storm drain. The court admitted all statements made prior to Appellee's assertion that he was done talking and surveillance video from the ATM machine.

The Commonwealth timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The suppression court issued a responsive opinion adopting its April 5, 2016 opinion and order.

On appeal, the Commonwealth raises three issues for our review:

1. Did the suppression court err in finding that the Appellee made a clear and unambiguous assertion of his right to remain silent during police questioning?

2. Did the suppression court err in finding that the police violated Appellee ['s] Fifth Amendment privilege against self-incrimination and thus err in suppressing incriminating statements made to police?

3. Did the suppression court err in suppressing certain physical evidence (credit card, hat, shirt, and sunglasses) as fruit of the poisonous tree?

Commonwealth's Brief at 5.

When the Commonwealth appeals from a suppression order:

we follow a clearly defined standard of review and consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted.

The suppression court's findings of fact bind an appellate court if the record supports those findings. The suppression court's conclusions of law, however, are not binding on an appellate court, whose duty is to determine if the suppression court properly applied the law to the facts.

Commonwealth v. Miller, 56 A.3d 1276, 1278–79 (Pa. Super. 2012).

The Commonwealth first claims that the trial court erred in suppressing Appellee's statement because his invocation of his right to remain silent was not clear and unambiguous. See Commonwealth's Brief at 9. The Commonwealth argues that the statement was wavering, qualified, and left police unsure as to Appellee's intentions. Id.

A suspect is entitled to Miranda warnings prior to a custodial interrogation. Commonwealth v. Boyer, 962 A.2d 1213, 1216 (Pa. Super. 2008) (noting that defendant's statement "I don't want to talk to you" was an invocation of his Miranda rights). If a suspect "indicates, in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Commonwealth v. Henry, 599 A.2d 1321, 1323 (Pa. Super. 1991) (internal citations omitted). However, the United States Supreme Court has held that the invocation of the right to remain silent or request an attorney must be affirmative, clear, and unambiguous. See Berghuis v. Thompkins, 560 U.S. 370, 130 S.Ct. 2250, 2259–60, 176 L.Ed.2d 1098 (2010) ; see also Commonwealth v. Briggs, 608 Pa. 430, 12 A.3d 291, 318 n.27 (2011) (noting that the Supreme Court has held that an individual in police custody subject to interrogation must affirmatively invoke his or her Miranda rights).

In Berghuis, the defendant was silent during the first two hours and forty-five minutes of a three-hour interrogation. Berghuis, 130 S.Ct. at 2256–57. He did not state that he wished to remain silent, that he did not want to talk to the police, or that he wanted an attorney. Id. However, towards the end of the interrogation, a police officer asked defendant whether he prayed to God to forgive him for the shooting, to which the defendant responded, "Yes." Berghuis, 130 S.Ct. at 2257. The defendant refused to sign a written confession and argued that his statement to detectives should have been suppressed because he had invoked his right to remain silent. Id. The United States Supreme Court affirmed the denial of defendant's motion to suppress, holding that the invocation of the right to remain silent must be affirmative, clear, and unambiguous. Berghuis, 130 S.Ct. at 2260. The defendant's silence, without an affirmative invocation or statement, did not suffice. Id.

Pennsylvania courts have addressed Berghuis in passing but have not directly discussed its applicability. For example, in Briggs, the defendant argued that the trial court should have suppressed his spontaneous confession to police and averred he had not been given his Miranda warnings. Briggs, 12 A.3d at 318–19. In a footnote, the Court referenced the Berghuis holding and acknowledged the defendant's request to speak to a lawyer was an invocation of those rights. Id . at n.27. However, the Court concluded that the conversation with police officers had not constituted an interrogation and accordingly, Miranda protections did not attach. Id. at 323–24. Similarly, Commonwealth v. Guess also cites Berghuis in a footnote. See Commonwealth v....