Commonwealth v. McLaughlin ( 1977 )

MANDERINO, Justice,

dissenting.

Appellee received an administrative subpoena from the Philadelphia City Comptroller to explain allegedly false expense vouchers. Appellee reported to the Comptroller’s office where he was questioned and made an apparently incriminating statement. Since this investigatory proceeding was an important link in appellee’s eventual prosecution, there is no question appellee could have refused to answer any questions which he reasonably believed might be used against him later. Kastigar v. United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 32 L.Ed.2d 212, 216-17 (1972); Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118, 1124 (1951). The majority now holds, however, that he was not entitled to have a lawyer present to apprise him of that right. I dissent.

Appellee was “in custody” for purposes of the warnings mandated by Miranda v. Arizona. Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d (1976), heavily relied on by the majority, is very different from this case. Whereas appellee was acting under the influence of a subpoena, and had to report to the Comptroller’s Office, Beck-with was politely approached by IRS agents and questioned at his home. In both a real and practical sense, there was compulsion for appellee to appear before the Comptroller and answer questions; noncompliance meant certain nonpayment of the disputed vouchers and possible criminal indictments. This is in contrast to Beckwith, where the defendant’s refusal to answer any questions had no such immediate and prejudicial consequences. More fundamentally, Beckwith was fully apprised of his Fifth Amendment rights, as well as his right to have any attorney present; that fact attenuated his claim that his statements should have been suppressed because he was not administered Miranda warnings. See 425 U.S. at 348-49, 96 S.Ct. 1612, 48 L.Ed.2d at 9 (Marshall, J., concurring). Appellee here was not so apprised, and the practical pressure to respond to questions about his expense vouchers was no different than the psychological pressures described in Miranda.

I also cannot agree with the majority’s statement that “[t]he fact that information obtained during the course of this interrogation ultimately resulted in the initiation of criminal prosecution does not change the character of the interrogation itself.” That fact very much changed the character of the interrogation, because a reasonable belief by appellee that his disclosures would be so used would give him the right not to answer the questions. See, e. g., Kastigar v. United States, supra, 406 U.S. at 445, 92 S.Ct. 1653, 32 L.Ed.2d at 217.

Hence, he should have been warned of this Fifth Amendment right as required by Miranda. I dissent.