Commonwealth, Aplt. v. Lukach, J.
Commonwealth, Aplt. v. Lukach, J.
Opinion
OPINION
JUSTICE DOUGHERTY
We granted discretionary review to determine whether appellee Joshua Michael Lukach, who was subject to a custodial interrogation, clearly and unambiguously invoked his right to remain silent in accordance with the rule articulated in
Berghuis v. Thompkins
,
I. Background
At approximately 5:00 a.m. on August 6, 2015, Richard Wojciechowsky, Chief of Police with the Pottsville Bureau of Police, received a call from another officer requesting his presence at the scene of a homicide on South 12th Street in Pottsville. N.T. 1/12/16 at 7-8. Upon arrival, Chief Wojciechowsky observed blood on the roadway and was informed officers had found the body of John Brock (victim) lying in the street in front of his home. Id. at 8. During their preliminary investigation of the homicide, officers became aware that appellee and Shavinskin Thomas *179 (Thomas) had been involved in a prior crime at the victim's house and those individuals became persons of interest in the homicide investigation. Id. at 9. Officers reported seeing appellee and Thomas walking together on Laurel Boulevard between 6:00 a.m. and 6:30 a.m. on the day the victim's body was found and Chief Wojciechowsky encountered both individuals at the intersection of 12th Street and Market Street, which was directly down the road from the scene of the homicide, at around 11:00 a.m. Id. at 10.
During a discussion with Chief Wojciechowsky, appellee stated he was in the area to see what was happening. Id. at 10-11. Appellee further stated he had been with Thomas for the entire previous evening and they had visited the APlus store on Route 61 around 5:00 a.m. Id. Officers proceeded to the APlus store which provided two still photographs from their surveillance videos showing the only customers who entered the store around 5:00 a.m. that day. Id. Neither still photograph showed appellee entering the store. Id. Later that same day, around 5:00 p.m., Chief Wojciechowsky proceeded to appellee's residence, advised his mother of the homicide, and stated he wished to speak to appellee. Id. at 20. Appellee was not home, but his mother consented to a search of the property. Id. at 20-21. During the search of the property, officers recovered box cutters from a toolbox in appellee's bedroom and a pair of work gloves from the backyard, both of which were similar to items found at the scene of the homicide. Id. at 21.
Appellee was detained the next day based on two outstanding warrants and was taken to an interview room at Pottsville City Hall. Id. at 12. Chief Wojciechowsky turned on an audio and visual recorder, read appellee his Miranda 1 rights, and began to interview appellee regarding the homicide of the victim. Id. at 13-14. During the initial stages of the interview, which began at 1:05 p.m., appellee continuously denied being involved in the homicide. Id. at 16. Subsequent to these initial denials, the following exchange took place between 1:25 p.m. and 1:30 p.m.:
CHIEF: And at some point you have a responsibility to yourself like we talked about but also your family and also your mom.
APPELLEE: I know.
CHIEF: For as much shit as you've been in, I'm guessing you haven't cut her out of your life. You still care there.
APPELLEE: Yeah a little bit.
CHIEF: It's not perfect right.
APPELLEE: Yeah. I don't know just, I'm done talking. I don't have nothing to talk about.
CHIEF: You don't have to say anything, I told you that you could stop.
APPELLEE: Ok.
CHIEF: Let me explain to you then, alright?
APPELLEE: [Y]eah.
CHIEF: We don't believe you right now.
APPELLEE: Uh huh.
CHIEF: And we are in the process of getting our stuff back from the lab and we are in the process of interviewing other people who want to give us information. So as that's being put together and it suggests that you are involved, you lose your right to tell me something different. You lose your right to distance yourself from anything that you weren't directly involved with. You lose your right to *180 control what happens to you for however many years however long.
APPELLEE: Yeah.
CHIEF: And I've talked to people like this before and they've made the wrong choice with not speaking to me and I will tell them everything else that is going to happen to them because we are arresting them and because we have the evidence and they start bawling and they say they want to talk now. And I'm going to tell you that the answer to that is no.
APPELLEE: Yeah.
CHIEF: Because you['re] a kid from the street and you know how respect works. Respect is me now sitting with you and giving you a chance. You disrespect me by lying and I'm not gonna give you another chance because you are a man now.
APPELLEE: Yeah.
CHIEF: You get one. That's where we are going from here and that's how it's gonna play out. [The time is] 1:30.
20 Second Pause (silence)
CHIEF: I'm hoping we get a call here pretty soon from the lab about some[ ] of this stuff.
APPELLEE: Yeah
CHIEF: We will wait a couple minutes with you.
APPELLEE: Alright.
CHIEF: And then when they call if they say that stuff is there indicating that you were in the area, or [Thomas], because you said you were with him all night.
APPELLEE: Yeah.
CHIEF: Then at the point, we are not working on any kind of.. We aren't going to come from the direction of trying to help you anymore.
APPELLEE: Yeah.
Joint Submission of Transcription of Confession (Confession Transcript) at 16-17 (emphasis added). Chief Wojciechowsky continued talking to appellee regarding testing at the lab and then left the room for approximately eight minutes. Id. at 18. While Chief Wojciechowsky was outside the interview room, another officer entered the room, asked for appellee's shoes, and appellee complied. Id. Chief Wojciechowsky then re-entered the room and discussed with appellee the types of evidence that could be found on his shoes; appellee continued to deny involvement in the homicide. Id. at 18-22.
Thereafter, at around 1:53 p.m., appellee asked Chief Wojciechowsky if he could ask him a quick question off camera. Id. at 22. After their off-the-record conversation, Chief Wojciechowsky turned the camera back on, re-advised appellee of his Miranda rights, and appellee asked to speak with someone from the Schuylkill County District Attorney's Office in regards to whether he could receive a deal in exchange for his cooperation. Id. at 23-25. Chief Wojciechowsky again turned the camera off and there was a break in the interview from approximately 2:00 p.m. until 2:22 p.m. when John Fegley (ADA Fegley) from the District Attorney's Office arrived. Id. at 26. Appellee was again advised of his Miranda rights and he subsequently confessed to participating in the victim's murder. Id. at 26-52.
During his confession, appellee stated he used one of the victim's credit cards to access an ATM and then placed it in a storm drain. Id. at 44-48. Officers subsequently recovered the credit card, a pair of sunglasses, a t-shirt, and a hat in a storm drain. N.T. 1/12/16 at 43-44. Based on the confession and the recovery of the credit card, officers were able to retrieve video which showed appellee accessing an ATM around the time of the homicide. Id. at 43.
*181 Appellee was subsequently arrested and charged with the murder of the victim and related offenses.
Prior to trial, appellee filed a motion to suppress any statements made to the police after he stated, "Yeah. I don't know just, I'm done talking. I don't have nothing to talk about" (hereinafter referred to as "appellee's invocation" or "his invocation"). The motion further requested that appellee's shoes and any other evidence recovered as a result of those statements, including the items found in the storm drain and the ATM video, also be suppressed. The suppression court held a hearing on the motion in which it viewed a video recording of appellee's invocation and read a transcription of appellee's full confession. The court also heard testimony from Chief Wojciechowsky, who testified to the above facts, and Detective Kirk Becker, who stated he would have retrieved the ATM video in the normal course of his investigation by contacting the victim's banks to determine if any of his accounts had been accessed subsequent to his death. Id. at 45. The suppression court subsequently filed an opinion and order, granting the motion in part and denying the motion in part.
The suppression court first determined "the statements by [appellee] which followed the words, 'I'm done talking. I don't have nothing to talk about,' are [ ] suppressed as having been obtained in violation of his Fifth Amendment
[
2
]
privilege against self-incrimination." Suppression Court Op. 4/5/16 at 34. The court based its suppression of these statements on its finding appellee unambiguously invoked his right to remain silent by stating "I'm done talking. I don't have nothing to talk about[.]"
Id.
at 34. The court further suppressed the items found in the storm drain as evidence derivative of the illegally obtained confession.
3
The court found this case to be distinguishable from
United States v. Patane
,
*182 The Commonwealth appealed to the Superior Court pursuant to Pa.R.A.P. 311(d), 5 and the suppression court filed an opinion pursuant to Pa.R.A.P. 1925(a), in which it relied on its previously filed opinion regarding appellee's suppression motion. The Commonwealth argued appellee's invocation was ambiguous and any violation of his right to remain silent was cured when appellee was once again read the Miranda warnings and waived those rights prior to speaking with ADA Fegley. The Commonwealth further argued the physical evidence obtained as a result of appellee's voluntary confession should not have been suppressed because Fifth Amendment violations preclude only the admissibility of testimonial evidence where no coercion is present. Appellee responded by arguing the assertion of his right to remain silent was clear and unambiguous and Chief Wojciechowsky's continued interrogation became coercive, rendering any further statements by appellee to be involuntary and, in turn, the derivative physical evidence to be inadmissible.
A three-judge panel of the Superior Court affirmed the suppression order.
Commonwealth v. Lukach
,
We accepted review to address whether appellee's invocation was clear and unambiguous as required by
Berghuis
, thus necessitating suppression of his confession and, if so, whether the Superior Court properly affirmed the suppression of the derivative physical evidence recovered as a result of that confession.
7
As both
*183
questions ask us to review an order granting suppression, we "consider only the evidence of the defense and so much of the evidence for the Commonwealth as remains uncontradicted" when read in the context of the suppression hearing record as a whole.
Commonwealth v. Mistler
,
II. Suppression of Confession
The Commonwealth argues appellee's invocation was not clear and unambiguous as required by Berghuis . The Commonwealth contends appellee's invocation could have been construed as a general denial of being involved in the murder rather than an invocation of his right to remain silent since "I'm done talking" was prefaced by "I don't know" and qualified by "I don't have nothing to talk about."
The Commonwealth first supports this contention by comparing two Superior Court cases decided prior to
Berghuis
.
See
Commonwealth's Brief at 11-12,
citing
Commonwealth v. Boyer
,
The Commonwealth ultimately argues the Superior Court erred by not engaging
*184
in a meaningful discussion of the above cases and instead making a conclusory determination that appellee's invocation was an unambiguous assertion of his right to remain silent. The Commonwealth contends the Superior Court should have compared appellee's invocation with the purported invocations made in the above cases and refrained from crafting a rule that leaves police officers guessing as to whether the "middle portion" of a qualified invocation is what the suspect actually meant. Commonwealth's Brief at 19-20,
citing
Davis v. United States
,
Appellee responds by arguing his invocation of his right to remain silent was unequivocal, and the cases cited by the Commonwealth are distinguishable. Appellee argues
Russell
is distinguishable because the defendant there qualified her invocation by stating she did not wish to speak to the arresting officer, whereas here appellee simply stated, "I'm done talking." Appellee's Brief at 11,
citing
Russell
,
supra
. Appellee further argues the Commonwealth misconstrues the holding in
Cummings
as the officers in that case were questioning the defendant regarding two separate crimes, and this fact rendered his statements, "I don't want to talk about this" and "I don't know nothing about this" ambiguous since it was unclear whether he wished to stop the questioning altogether or was asserting innocence as to one of the two crimes. Appellee's Brief at 12-13,
citing
Cummings
,
Appellee further asserts
Adams
is distinguishable because the defendant continued to answer questions after stating, "I don't want to talk man. I mean, I ..." Appellee's Brief at 13-14,
citing
Adams
,
This Court has previously enunciated, "[t]he principles surrounding
Miranda
warnings are [ ] well settled. The prosecution may not use statements stemming from a custodial interrogation of a defendant unless it demonstrates that he was
*185
apprised of his right against self-incrimination and his right to counsel."
Commonwealth v. Gaul
,
We have long held "if an individual is given the
Miranda
warnings and responds that he wishes to exercise any of those rights, all interrogation must cease."
Commonwealth v. Mercier
,
the defendant [in Berghuis ] was silent during the first two hours and forty-five minutes of a three-hour interrogation. Berghuis , [560 U.S. at 374-76 ,130 S.Ct. 2250 ]. 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." [Id. at 376 ,130 S.Ct. 2250 ]. 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.
Lukach
,
This case is readily distinguishable from
Berghuis
as appellee did not sit silent like the defendant in
Berghuis
, but instead stated he was "done talking." Confession Transcript at 16. "I'm done talking" is virtually indistinguishable from the "simple, unambiguous statement[ ]" of "say[ing] that he wanted to remain silent" referred to by the
Berghuis
Court.
We begin with pre-
Berghuis
case law from our Superior Court. In
Russell
, Detective Rush of the Pittsburgh Police Department arrested the defendant, read her the
Miranda
warnings, and attempted to interrogate her regarding an arson.
A year later,
Russell
was distinguished by the Superior Court in
Boyer
. In
Boyer
, the defendant was arrested for robbery and taken to the state police barracks for questioning by Trooper 1 who read him the
Miranda
warnings.
We now review cases from other jurisdictions. In the 11th Circuit case,
Owen
, the defendant was arrested on burglary
*187
charges and was questioned six times over the next three weeks regarding a plethora of unrelated crimes.
In
Adams
, the defendant was arrested for bank robbery, informed of his
Miranda
rights, declined to answer questions, and the interrogation was terminated.
In
Cummings
, the defendant Smith
11
was questioned regarding the nonviolent theft of a van and a series of violent armed robberies.
Our review reveals these non-binding authorities are factually distinguishable from the case sub judice . Appellee did not state he would not talk to a particular officer ( Russell ), he was not being interrogated regarding multiple crimes ( Owen and Cummings ), and he did not continue to engage in a back-and-forth conversation with police immediately following his invocation ( Adams ), but instead only responded, "Yeah" to Chief Wojciechowsky's commentary during the continuing interrogation. Confession Transcript at 16-17. We find this case most closely aligns with Boyer - where the Superior Court found Boyer's invocation to be unambiguous - as both appellee and Boyer invoked their right to remain silent but police nevertheless immediately continued to interrogate them unremittingly. However, we recognize Boyer's invocation was not prefaced by "I don't know" as is the case here.
Regarding the Commonwealth's argument "I don't know" rendered appellee's invocation ambiguous, we consider the facts of this case to be analogous to those in
Champney
, in which this Court was equally divided.
12
In
Champney
, the defendant was arrested on robbery charges, placed in county prison, and was represented by Attorney Frank Cori.
In support of the holding Champney unambiguously asserted his right to counsel, the OISA distinguished the facts of Champney's situation from those present in the Supreme Court's decision in
Davis.
13
Specifically, the OISA noted Champney "did not provide a second statement contradicting his initial desire to speak with counsel."
We conclude the OISA in
Champney
is particularly applicable and persuasive here for a variety of reasons. First, the phrase "I don't know" as used by appellee here, in the context of his exchange with Chief Wojciechowsky, does not render his invocation
per se
equivocal because "I don't know" may have simply been responsive to Chief Wojciechowsky's prior questioning regarding appellee's relationship with his mother. Confession Transcript at 16;
see also
Champney
,
Lastly, we recognize the import of the
Davis
Court's declaration that the invocation of a
Miranda
right must be clear as police officers should not be required "to make difficult judgment calls about whether the suspect in fact wants a lawyer even though he has not said so, with the threat of suppression if they guess wrong."
Davis
,
III. Suppression of Derivative Physical Evidence
We now consider whether the physical evidence recovered by police as a result of appellee's confession was properly suppressed. The Commonwealth argues the Superior Court, in suppressing the derivative physical evidence under a straightforward fruits of the poisonous tree analysis, failed to address the United States Supreme Court's decision in
United States v. Patane
,
Appellee responds by arguing the derivative physical evidence was properly suppressed and the controlling law on the
*191
issue is
United States v. Hubbell
,
In
Miranda
, the United States Supreme Court "concluded that the coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements, and thus heightens the risk that an individual will not be 'accorded his privilege under the Fifth Amendment ... not to be compelled to incriminate himself.' "
Dickerson v. United States
,
In the wake of
Dickerson
, the High Court was faced with the question of whether the failure to provide a suspect with the constitutionally mandated
Miranda
warnings required suppression of the derivative physical evidence obtained as a result of "the suspect's unwarned but voluntary statements."
Patane
,
police do not violate a suspect's constitutional rights (or the Miranda rule) by negligent or even deliberate failures to provide the suspect with the full panoply of warnings prescribed by Miranda . Potential violations occur, if at all, only upon the admission of unwarned statements into evidence at trial. And, at that *192 point, the exclusion of unwarned statements is a complete and sufficient remedy for any perceived Miranda violation.
Thus, unlike unreasonable searches under the Fourth Amendment or actual violations of the Due Process Clause or the Self-Incrimination Clause, there is, with respect to mere failures to warn, nothing to deter. There is therefore no reason to apply the fruit of the poisonous tree doctrine[.]
The facts in this case are clearly distinguishable from the scenario at issue in
Patane.
Chief Wojciechowsky did not fail to advise appellee of his
Miranda
rights, but instead impermissibly induced him to speak in violation of his right to remain silent, after he had unambiguously invoked that right. This impermissible inducement rendered appellee's subsequent confession involuntary pursuant to our decision in
Commonwealth v. Gibbs
,
In Gibbs , the defendant was arrested by state police investigating a murder. Id. at 409. Following a trooper advising him of his Miranda rights, Gibbs stated "Maybe I should talk to a lawyer. What good would it do me to tell you?" Id. The trooper responded, "I really don't know what good it would do. The only thing is I would tell the District Attorney you cooperated for whatever good that would be, but I would have no idea whether it would help your case or not." Id. Gibbs then made incriminating statements, which the trial court declined to suppress. Id. Gibbs was convicted of first-degree murder, sentenced to death, and this Court reversed the trial court's order denying suppression and granted Gibbs a new trial. Id. In doing so, the Gibbs Court stated the following:
[W]e hold that the statement by the authorities to Griggs was an impermissible inducement and thereby tainted his admissions. By conveying the distinct impression that the district attorney would be told of his cooperation in giving a confession on the spot, there occurred an inescapable inducement which cannot be condoned under our law. For while we recognize that the police have a legitimate responsibility to conduct investigations, including interrogations, criminal suspects have a constitutional right to make up their own minds as to whether they want the Miranda protections. Promises of benefits or special considerations, however benign in intent, comprise the sort of persuasion and trickery which easily can mislead suspects into giving confessions. The process of rendering Miranda warnings should proceed freely without any intruding frustration by the police. Only in that fashion can we trust the validity of subsequent admissions, for if the initial employment of Miranda is exploited illegally, succeeding inculpatory declarations are compromised. Misleading statements and promises by the police choke off the legal process at the very moment which Miranda was designed to protect.
Id.
at 410-411.
Compare with
Templin
,
*193
From our holding in
Gibbs
, it follows logically that Chief Wojciechowsky coerced appellee into abandoning his right to remain silent which he had unambiguously and unequivocally invoked. Although Chief Wojciechowsky did not state he would attempt to get appellee favorable treatment with the district attorney, he nevertheless induced him into abandoning his right to remain silent by continuously stating he could only help appellee if he confessed prior to receiving the results of evidential testing from the lab, which Chief Wojciechowsky stated would prove that appellee was present at the crime scene.
See
Confession Transcript at 16-17. During this period of "impermissible inducement,"
see
Gibbs
,
Further, we make clear that, in circumstances where a suspect invokes his or her Miranda rights and an officer continues the interrogation, suppression of the statement alone is an inadequate remedy as it would allow officers to ignore a suspect's invocation in an attempt to secure physical evidence. The Supreme Court of New Hampshire has perfectly articulated this point:
Prosecutors and police officers understand that the consequence of failing to abide by Miranda is the suppression of the defendant's statements. To allow the police the freedom to disregard the requirements of Miranda and thereby risk losing only the direct product of such action, but not the evidence derived from it, would not only not deter future Miranda violations but might well tend to encourage them. An officer more concerned with the physical fruits of an unlawfully obtained confession than with the confession itself might reasonably decide that the benefits of securing admissible derivative evidence outweighed the loss of the statements.
State v. Gravel
,
IV. Conclusion
Accordingly, we conclude the suppression court and the Superior Court correctly held that appellee clearly and unambiguously invoked his right to remain silent when he stated, "Yeah. I don't know just, I'm done talking. I don't have nothing to talk about." Furthermore, we find Chief Wojciechowsky impermissibly induced appellee to speak after he had invoked his right to remain silent, thus rendering his subsequent confession coerced and involuntary. As such, the derivative physical evidence recovered as a result of appellee's confession was also properly suppressed.
*194 The order of the Superior Court is affirmed and the matter is remanded to the trial court for further proceedings.
Jurisdiction relinquished.
Justices Baer, Todd, Donohue, Wecht and Mundy join the opinion.
Chief Justice Saylor files a concurring opinion.
I join Sections I and II of the majority opinion, and concur in the result as to Section III.
As I read the record, it is clear, as the majority concludes, that Appellee's invocation of his right to remain silent was unequivocal. Moreover, the interrogating officer did not thereafter wait for Appellee to initiate further discussion, but instead immediately resumed questioning Appellee. He continued for a considerable time to pressure Appellee into confessing by employing threats - including a repeated assertion that Appellee would lose valuable rights if he did not confess before certain imminent lab results were obtained by investigators - and implying that this was Appellee's last chance to cooperate with the police and thereby help his own case. Hence, the common pleas court acted properly in suppressing his confession.
Regarding the second issue, the only scenarios of which I am aware in which the Supreme Court has refused to suppress the fruits of an improperly-obtained confession have involved statements that were clearly voluntary and given in situations where the defendant had not expressly invoked his rights under
Miranda v. Arizona
,
I write separately for two reasons. First, I wish to note my difficulty in reconciling this dispute with others in which more intimidating tactics have been approved by this Court. In
Commonwealth v. Briggs
,
Second, unlike the majority I do not view
Commonwealth v. Gibbs
,
The above observations relating to
Gibbs
are interrelated because of the central role police coercion plays in determining whether the fruits of an illegally-obtained confession are subject to suppression. If the confession is coerced -
i.e
. compelled
2
-the fruits are undoubtedly suppressible.
See
Kastigar v. United States
,
Whether a confession is voluntary is an issue of law which we review
de novo
.
See
Commonwealth v. Nester
,
Numerous factors should be considered under a totality of the circumstances test to determine whether a statement was freely and voluntarily made: the means and duration of the interrogation, including whether questioning was repeated, prolonged, or accompanied by physical abuse or threats thereof; the length of the accused's detention prior to the confession; whether the accused was advised of his or her constitutional rights; the attitude exhibited by the police during the interrogation; the accused's physical and psychological state, including whether he or she was injured, ill, drugged, or intoxicated; the conditions attendant to the detention, including whether the accused was deprived of food, drink, sleep, or medical attention; the age, education, and intelligence of the accused; the experience of the accused with law enforcement and the criminal justice system; and any other factors which might serve to drain one's powers of resistance to suggestion and coercion.
Id. at 654-55,
In my estimation, when applying the above considerations to a situation such as the one presently under review, significant weight should be given to the fact Appellee's Miranda rights were violated in what the Supreme Court has described as the inherently coercive setting of custodial police interrogation. See Miranda , 384 U.S. at 458, 86 S.Ct. at 1619 (referring to "the compulsion inherent in custodial surroundings"); Dickerson , 530 U.S. at 435, 120 S.Ct. at 2331 (noting custodial interrogation "exacts a heavy toll on individual liberty and trades on the weakness of the individual" (internal quotation marks and citation omitted) ). What this means in practice is that a lower threshold should be applied for a finding of involuntariness where, as here, the authorities improperly re-initiate questioning after the suspect asserts his rights. In this regard, one noted authority has observed that, when the police give warnings but later suggest that exercising them will "deny[ ] the defendant all opportunities for leniency" - as occurred here - such a course of conduct "not only will render involuntary the waiver of Miranda rights but also add a coercive element to the interrogation that could render the statement itself involuntary." WAYNE R. LAFAVE ET AL., 2 CRIMINAL PROCEDURE , § 6.2(c) (4th ed. 2015).
*197 In the present matter, the questioning, subtle threats, and inducements in the post-invocation timeframe were repeated on multiple occasions. As referenced by the majority, the officer "impermissibly induced [Appellee] to speak[.]" Majority Opinion, at 197. In particular, and as noted, he painted a picture whereby Appellee could only help his case for a short window of time by inculpating himself; he suggested if Appellee did not do so quickly, the authorities would soon be in possession of incriminating physical evidence and, at that point, they would adopt a new, hostile attitude toward Appellee. Further, at 18 years old Appellee was relatively young and inexperienced, and it may be inferred from some of his answers that he was sleep deprived.
Overall, then, I agree with the majority's ultimate conclusion that the confession stemming from the officer's initiation and continuation of further discussion was involuntary and, as such, any derivative evidence is subject to suppression. That being the case, I agree with the holding reached by the majority in Part III of its opinion.
Miranda v. Arizona
,
The Fifth Amendment to the United States Constitution states, in relevant part, as follows: "No person shall ... be compelled in any criminal case to be a witness against himself[.]" U.S. Const. amend. V.
The lower court also suppressed appellee's shoes, finding the Commonwealth failed to prove "the police inevitably or ultimately would have obtained the shoes by legal means" or that appellee "relinquished his shoes by voluntarily consenting to do so[.]" Suppression Court Op. 4/15/16 at 36-39. Additionally, the lower court declined to suppress the ATM video as it found Detective Becker's testimony sufficiently established the video would have been recovered during the homicide investigation notwithstanding appellee's suppressed confession.
Id.
at 34-35,
citing
Commonwealth v. Ingram
,
Although Chief Wojciechowsky's statements to appellee following his invocation did not constitute direct questioning, such statements are still considered interrogation as they were "words or actions ... that the police should know are reasonably likely to elicit an incriminating response[.]"
Commonwealth v. Briggs
,
Pennsylvania Rule of Appellate Procedure 311(d) states, "In a criminal case, under the circumstances provided by law, the Commonwealth may take an appeal as of right from an order that does not end the entire case where the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution." Pa.R.A.P. 311(d).
The issue of whether appellee's waiver of his Miranda rights prior to speaking to ADA Fegley cured any previous violation of his right to remain silent is not before this Court.
Specifically, we granted allocatur on the following questions:
a. As a matter of first impression, did the Pennsylvania Superior Court err in holding that a suspect that is subject to custodial interrogation clearly and unambiguously invokes his right to remain silent under the standard articulated in [ Berghuis ], where he makes a statement that he does not wish to talk, but, qualifies that statement with a statement of "I don't know" and a general assertion of innocence?
b. Did the Pennsylvania Superior Court commit an error of law when it applied the wrong legal standard in affirming suppression of the physical evidence found as 'fruits' of [appellee's] confession where there was only a violation of the prophylactic rules of Miranda and the confession was not a product of coercion?
Commonwealth v. Lukach
,
Former Justice Orie Melvin did not participate in the decision.
Appellee additionally argues Chief Wojciechowsky failed to scrupulously honor the invocation of his right to remain silent and any subsequent waiver of his Miranda rights did not cure that violation. However, as stated, this issue is not currently before the Court. See n.5, supra .
Many of the decisions discussed below determined whether or not invocations of the
Miranda
right to counsel - rather than the
Miranda
right to remain silent - were unambiguous. However, as we have noted, the same standards apply for determining whether or not an invocation of the right to remain silent was unambiguous.
See
Berghuis
,
The Supreme Court of Wisconsin consolidated the unrelated cases of Cummings and another defendant, Smith, as both argued they unequivocally invoked the right to remain silent during police interrogations.
As stated, Justice Orie Melvin did not participate in the decision. Justice Baer authored the opinion in support of affirmance (OISA), and was joined by Justice (now-Chief Justice) Saylor and Justice Todd; Justice Eakin authored the opinion in support of reversal (OISR), and was joined by then-Chief Justice Castille and Justice McCaffery.
During an interrogation concerning a murder, Davis stated, "Maybe I should talk to a lawyer."
Davis
,
See, e.g.
,
United States v. Patane
,
Although the Fifth Amendment protects against "compelled" self-incrimination, U.S Const. amend. V, in that context the Supreme Court at times uses the concepts compulsion and coercion interchangeably.
See, e.g.
,
Tucker
,
Admittedly, some language in
Miranda
does suggest a
per se
rule along these lines.
See
Miranda
, 384 U.S. at 473-74, 86 S.Ct. at 1627-28 (observing that, once warnings have been given and the suspect invokes his right to remain silent, any further statement "cannot be other than the product of compulsion, subtle or otherwise");
see also
Minnick v. Mississippi
,
The standard for determining when a suspect has invoked his right to remain silent is the same as that which applies to an invocation of his right to counsel.
See
Berghuis v. Thompkins
,
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, Appellant v. Joshua Michael LUKACH, Appellee
- Cited By
- 23 cases
- Status
- Published