Commonwealth v. Ziegler , 503 Pa. 555 ( 1983 )

OPINION

McDERMOTT, Justice.

This is a discretionary appeal from the order of the Superior Court, 304 Pa.Super. 623, 450 A.2d 1055, affirming the order of the Court of Common Pleas of Philadelphia County, suppressing on Miranda¹ grounds statements given by appellee. We reverse.

Appellee, a Philadelphia Police Officer, became the subject of a homicide charge in a sequence of events arising out of the pursuit and apprehension of the driver of a vehicle. At approximately 4:30 p.m. on the afternoon of August 24, 1980, appellee, while on-duty and in uniform, observed what he suspected to be a stolen vehicle travelling at high rate of speed in a populous area, and attempted to stop the vehicle. The driver ignored these efforts and appellee gave chase. When the vehicle subsequently was stopped, at least one passenger fled while the driver remained behind the wheel. Appellee approached the vehicle with gun drawn. As he reached the door of the vehicle, appellee was knocked to the ground as the driver again put the vehicle in gear and drove a short distance before crashing. Appellee again approached the vehicle, an altercation with the driver ensued, and the driver suffered wounds, including a gunshot wound from appellee’s gun. Approximately one hour later, at Temple Hospital, the driver was pronounced dead.

Radio messages between appellee and other police personnel concerning the sequence of events were monitored and recorded on the police communication network. Appellee’s superior, a Lieutenant Puchalski, inquired over police radio as to how the driver had been shot, and appellee responded:

I hit him on the head, that’s all.

Upon arriving at the hospital, appellee was confronted by his superior, who stated:

Well, the male’s shot. Can you tell me how the male got shot?

Appellee responded:

I didn’t shoot anybody. I hit him with my gun. He tried to get away from me. He tried to run me over and we were struggling and I hit him.

The superior then asked for the gun, examined it to determine if it had been fired, and said to appellee:

You have a spent shell, five live rounds. We have a male shot. Your gun went off, apparently. The male’s shot and you shot him.

Appellee replied:

I hit him. If my gun went off, you know, I didn’t — it was an accident.

At that point, pursuant to departmental regulations, the supervisor directed appellee to report to Police Department Staff Inspector Headquarters, accompanied by another officer.²

Appellee was joined at Staff Inspector Headquarters by his superior Lieutenant Puchalski. The superior offered to telephone appellee’s family since, under departmental regulations, he was not himself permitted to make any calls. Also, pursuant to regulations, appellee’s revolver was taken for ballistics tests. At approximately 6:40 p.m., the staff inspector, one Officer Taylor, arrived and commenced questioning of appellee. Between that time and midnight, appellee gave both oral and written statements to the staff inspector, and also drew a sketch illustrating where the events occurred leading up to the altercation. At no time were Miranda warnings given to appellee.

Five days later, on August 29, 1980, a complaint was issued for appellee’s arrest on charges of murder and involuntary manslaughter. The post-mortem examination indicated that, while the immediate cause of death was the gunshot wound, blows to the decedent’s head had caused two skull fractures which eventually could have caused death. On August 30, 1980, appellee voluntarily surrendered.

Appellee’s motions to suppress evidence were considered by the Honorable George J. Ivins, of the Court of Common Pleas of Philadelphia County. Judge Ivins granted appellee’s motions to suppress on Miranda grounds the second oral statement given to Lieutenant Puchalski at the hospital, as well as the oral and written statements and the sketch given to Inspector Taylor at Staff Inspector’s Headquarters. The Commonwealth sought and was granted pre-trial appeal to the Superior Court. The Superior Court accepted jurisdiction and affirmed, per curiam, the suppression order, concluding that the statements given by appellee were the product of custodial interrogation. It is this decision which we now review.

Before addressing the merits, we note that appellee contends that the Commonwealth’s pre-trial appeal should have been quashed as interlocutory. This argument must be rejected. Since the appellant has certified that suppression of appellee’s statements would substantially handicap the prosecution, appellee’s contention must fail. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963).

The Commonwealth challenges the suppression of appellee’s statements, contending that the questioning of appellee in this case occurred as part of a non-custodial, non-criminal, administrative investigation for which Miranda warnings are not required. We agree.

In Commonwealth v. McLaughlin, 475 Pa. 97, 379 A.2d 1056 (1977), this Court held that Miranda warnings were not required where a suspect appeared in response to a subpoena from the office of city comptroller concerning allegedly false expense vouchers. The McLaughlin Court held that that suspect was not in “custody” for Miranda purposes, although there was a sanction for failure to appear (non-payment of the questioned expenses). Moreover, the Court found that even though information obtained through the administrative investigation ultimately resulted in criminal prosecution, Miranda warnings were not required in investigations which were non-criminal in nature.

In the instant case the questioning of appellee was mandated by departmental regulation, and represented standard procedure operative whenever a policeman discharges a firearm resulting in injury or death.³ The shooting occurred while appellee was engaged in the performance of his duty, pursuing a suspected felon who offered resistance, and there was nothing in the information then available to suggest that appellee’s conduct was unlawful. It was not until five days later, after the post-mortem examination indicated that blows to the decedent’s head may themselves have been a sufficient cause of death, that a complaint was issued for appellee’s arrest. Thus, the post-shooting debriefing and questioning of appellee were conducted pursuant to routine administrative procedure, and appellee was neither being held as a criminal suspect, nor had he reason to believe that such was the case.

It is argued by appellee that certain of the circumstances present constituted sufficient restriction upon his freedom of action as to comprise “custody” for Miranda purposes. Thus, appellee argues that the fact that his attendance before his superior was required, albeit under administrative regulation, or the fact that he was escorted by another officer are sufficient to make out a showing of custody. Such arguments must be rejected.

The protection of Miranda was designed to shield an accused from the coercive aspects of “custodial interrogations” where the accused might reasonably believe that he would be held incommunicado and not be released before confessing to a crime. Miranda, 384 U.S., 436, 446, 86 S.Ct. 1602, 1613, 16 L.Ed.2d 694 (1966). No such custody or restriction is made out by the facts of this case. While appellee was required to be present for questioning by his superiors in order to comply with police administrative regulations, this restriction on his freedom of action was in no sense “custody” for Miranda purposes. Although accompanied by another officer, appellee drove himself to police headquarters. Although appellee’s gun was taken from him for ballistics testing, he was issued a replacement revolver. Furthermore, Inspector Taylor testified that he would not have restrained appellee had he attempted to depart.

Nor may it be argued that warnings were required simply because the questioning was conducted by the police. The relevant criterion is still the presence or absence of custodial interrogation. While a policeman is certainly entitled to no less a panoply of constitutional rights than is any other citizen, Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), neither may it be contended that he deserves the greater degree of protection that would be afforded by extending Miranda to routine administrative investigations in employer-employee relationships such as the instant.

The gravamen of Miranda, its progeny,, and the entire field of law dealing with the Fifth and Sixth Amendments, is that the accused must not be compelled to incriminate himself. The warnings were instituted to protect an accused from giving statements as a result of having his will overborne by coercive police tactics:

An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak. As a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery, (footnote omitted.)

384 U.S. at 461, 86 S.Ct. at 1621. These elements were clearly not present here.

The considerations underlying our decision in McLaughlin are thus dispositive of this case. We hold that the lower courts erred in suppressing appellee’s statements on Miranda grounds where, as here, appellee’s questioning occurred pursuant to non-criminal, administrative channels, and where appellee was not subjected to custody.

Accordingly, we vacate the order of the suppression court and remand this case to the Court of Common Pleas of Philadelphia for proceedings consistent with this decision.

LARSEN, J., files a concurring opinion in which HUTCHINSON, J., joins. ZAPPALA, J., files a dissenting opinion.

1 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2 . Police Department Directive 10 provides for the following procedures in cases of discharge of a firearm by police personnel resulting in injury or death:

A A A * A A

Cases resulting in injury or death.

a. Police Radio will be notified immediately from the scene. The Commanding Officer of Police Radio will immediately notify:

(1) Duty Commander, Detective Bureau

(2) Internal Affairs Bureau

(3) Homicide Unit (only when a death occurs or is likely to occur)

(4) Detective Division of Occurrence

(5) District of Occurrence

(6) District or Unit to which officer is assigned.

b. The officer who fired the weapon will not make any statements, except to personnel of the Internal Affairs Bureau.

c. The first supervisor at the scene will be responsible for the following:

(1) The involved officer, if not incapacitated, is to be taken directly to the Internal Affairs Bureau.

(2) Ensure that the provisions of Directive # 2 "Responsibilities at the Crime Scene” are carried out.

3 . The relevant portion of Police Department Directive 10 is set out in n. 2, supra.