Pack, In Interest of

• Decision Date: 11 December 1992
• Parties: In the Interest of Walter PACK. Appeal of Walter PACK.
• Court: Pennsylvania Superior Court

Page 1006

616 A.2d 1006

420 Pa.Super. 347

In the Interest of Walter PACK.

Appeal of Walter PACK.

Superior Court of Pennsylvania.

Argued July 28, 1992.

Filed Oct. 20, 1992.

Reargument Denied Dec. 11, 1992.

Helen A. Marino, Asst. Public Defender, Philadelphia, for appellant.

Laurie Magid, Asst. Dist. Atty., Philadelphia, for Com. participating party.

Before MONTEMURO, FORD ELLIOTT and CERCONE, JJ.

CERCONE, Judge:

This is an appeal from the order of the Court of Common Pleas of Philadelphia County, dated May 14, 1991, which adjudicated appellant Walter Pack, a sixteen year-old juvenile, delinquent and committed him to state custody. We affirm in part and vacate in part.

The facts of this case, as adopted by the trial court, are as follows:

On March 22, 1991, at approximately 9:00 a.m., Walter Pack [appellant] and another male were arrested with trash bags containing clothes removed from a store located at 135 S. 52nd Street, owner Pierce Bouyad, which had been broken into some time around 2:20 a.m. that same morning. Walter, a juvenile, was charged with Theft, Receiving Stolen Property and Criminal Conspiracy (Petition No. 1791-91-3, D.C. # 91-18-018824). After his arrest, he was given Miranda warnings. [Appellant] exercised his rights and remained silent. On March 26, 1991, at Courtroom One, Youth Study Center, Master Gordon appointed the Defender Association to represent [appellant]. The matter was set for an adjudicatory hearing on April 5, 1991, Courtroom "D", 1801 Vine Street.

On April 1, 1991, after a conversation with Assistant District Attorney Blessington, Detective Butler, with ADA Blessington's blessings and ADA Falcone's approval, obtained an arrest warrant, this time adding the charge of Burglary to the charges already pending on the March 22nd incident. On April 4 1991, the detective went to the Youth Study Center at approximately 10:00 a.m. and rearrested defendant and obtained a waiver of rights, and a statement detailing the break-in and theft of the clothing from 135 S. 52nd Street on March 22, 1991. At the end of this statement, in response to questions by Detective Butler, [appellant] also admitted participating in an earlier break-in on 52nd Street.

Upon this second arrest, [appellant] was charged in petition No. 2031-91-4, D.C. # 91-18-018824, with Burglary, as well as Theft, Receiving Stolen Property, Criminal Conspiracy, Criminal Trespass, for the incident on March 22, 1991 at 135 S. 52nd Street--the very same incident with which he was charged in Petition No. 1791-91-3 following his first arrest. He was also charged in Petition No. 2030-91-4 with another Burglary and related offenses at an earlier time at another location on South 52nd Street.

On April 5, 1991, in "D" Court, the Commonwealth withdrew prosecution on Petition No. [1792-91-3].

On April 18, 1991, Detective Butler testified at a hearing on the defense motion to suppress his statement on the grounds of violation of the [appellant's] 5th and 6th Amendment rights via the 14th Amendment. Detective Butler testified that [appellant] appeared to understand the nature of the interview and waived his rights to have an attorney present. Detective Butler denied any physical or mental coercion of the [appellant] to elicit a statement. [Appellant] reviewed the statement and signed same. The Commonwealth also introduced the [appellant's] J-file [juvenile history] for the relevant portion to his mental health evaluations and the [appellant's] prior contacts with the juvenile system.

N.T. 5/3/91 at 2. The suppression court denied appellant's motion to suppress on the grounds that appellant voluntarily and knowingly waived his rights before giving a statement to the police detective and because the questioning was not a custodial interrogation. N.T. 5/3/91 at 4. After his decision, the suppression judge recused himself and the Honorable Abram Frank Reynolds, Jr. entertained the adjudicatory hearing. On May 14, 1991, Judge Reynolds adjudicated appellant delinquent and this timely appeal followed. ¹

Appellant raises the following issues for our review: whether the trial court erred in refusing to suppress appellant's statement to police because (1) it was taken in violation of appellant's sixth Amendment right to counsel; and, (2) the statement was taken after appellant had invoked his right to remain silent. Appellant also questions whether the trial court erred in refusing to suppress physical evidence which was unlawfully seized.

Appellant first contends that the trial court erred in refusing to suppress the statement the police elicited from him on April 4, 1991. He contends that the statement was elicited after his Sixth Amendment right to counsel had attached. In reviewing an order denying a motion to suppress evidence, we must determine whether the factual findings of the lower court are supported by the evidence of record. Commonwealth v. Espada, 364 Pa.Super. 604, 607, 528 A.2d 968, 969 (1987). In making this determination, we may only consider the evidence of the Commonwealth witnesses and so much of the witnesses for the defendant, as fairly read in the context of the record as a whole, which remains uncontradicted. Id. If the evidence supports the findings of the lower court, we are bound by such findings and may reverse only if the legal conclusions drawn therefrom are in error.

The Sixth Amendment of the United States Constitution provides for the right to counsel in a criminal prosecution. Said right attaches at the first formal proceeding against an accused. McNeil v. Wisconsin 501 U.S. 171, ----, 111 S.Ct. 2204, 2210, 115 L.Ed.2d 158, 170 (1991). In Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985), the United States Supreme Court discussed the parameters of the Sixth Amendment right to counsel as embodied in the United States Constitution. In Moulton, the defendant was indicted on various theft counts. He retained counsel and was arraigned. Subsequently, however, the Maine Police struck a deal with Moulton's co-defendant. As a result, the police arranged to have the co-defendant record a meeting between Moulton and the co-defendant to discuss trial strategy. Moulton made incriminating statements at that meeting and he filed a motion to suppress these statements based on his Sixth Amendment right to counsel. The Supreme Judicial Court of Maine reversed the trial court's denial of Moulton's motion to suppress and the United States Supreme Court affirmed.

The Court held that "once the right to counsel has attached, the State must honor it." Id. at 170, 106 S.Ct. at 484. "At the very least, the prosecutor and the police have an affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel." Id. at 171, 106 S.Ct. at 484. Thus, it was held that where the police knowingly circumvented an accused's right to have counsel present in a confrontation between the accused and a state agent, the defendant's Sixth Amendment right was violated. Id. at 176, 106 S.Ct. at 487.

Subsequent to Moulton, the Supreme Court had the opportunity to refine its explanations of the Sixth Amendment right to counsel. In McNeil v. Wisconsin, supra, the Court considered whether an accused's Sixth Amendment right to counsel was violated where, after being arrested for one offense, he was subsequently interrogated concerning another offense, without his counsel being present. In that case, the defendant, McNeil, was arrested in connection with an armed robbery. After being advised of his Miranda rights, McNeil refused to answer any questions but did not request a lawyer. After counsel was appointed to represent McNeil, a Milwaukee County detective sought to question McNeil in connection with a murder investigation. He was advised of his Miranda rights and gave a statement denying his involvement in the murder. After following up on a lead McNeil provided, however, the detective again interviewed McNeil. He was again administered his Miranda rights and McNeil gave a statement admitting his participation in the murder. McNeil, 501 U.S. at ---- - ----, 111 S.Ct. at 2206-07, 115 L.Ed.2d at 165-66.

McNeil sought to suppress the statement on the grounds that his Sixth Amendment right to counsel had attached and therefore he could not be interrogated without counsel present. The trial court denied the motion and the Wisconsin Supreme Court affirmed. The United States Supreme Court affirmed the Wisconsin court. The Court held that the Sixth Amendment right to counsel is offense specific. Id. at ----, 111 S.Ct. at 2207, 115 L.Ed.2d at 166. Thus, the prosecution can only violate an accused's right to counsel when they question him or her about the offenses with which he is charged after the right to counsel has attached. Id. The Court held that McNeil's right to counsel had not been violated since he was questioned regarding a separate incident which was unrelated to the robbery for which his right to counsel had already attached. ² Id. at ----, 111 S.Ct. at 2208, 115 L.Ed.2d at 168.

Finally, the Pennsylvania Supreme Court had occasion to discuss the Fifth and Sixth Amendment Rights to counsel in a similar context. In Commonwealth v. Santiago, supra, our Supreme Court held that where a suspect invokes his Fifth Amendment right to counsel, state officials are subsequently prohibited from interrogating the suspect without the presence of counsel. Santiago, 528 Pa. at 520, 599 A.2d at 202. In that case, the defendant, Santiago, was arrested by the Federal Bureau of Investigation and charged with unlawful flight in connection with a murder. Santiago was advised of his Miranda rights and he invoked his right to remain silent and requested an attorney. A few days later, Pittsburgh police detectives sought to interview Santiago in connection with an unrelated murder. He was given Miranda rights and voluntarily spoke with the detectives. Our Supreme Court...