Com. v. Klunk, S. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
SCOTT MICHAEL KLUNK : No. 1087 MDA 2021
Appeal from the Order Entered August 12, 2021
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0003140-2019
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.
MEMORANDUM BY COLINS, J.: FILED: AUGUST 11, 2022
The Commonwealth appeals the order granting, in part, Scott Michael
Klunk’s omnibus pretrial motion.1 The order, as written, has the effect of
excluding a specific component of Detective Raymond Craul’s testimony at
Klunk’s future trial. Specifically, the court excluded a conversation between
Detective Craul and Klunk wherein Klunk admitted to material elements of the
primary offense in which he had been charged, drug delivery resulting in
death. See 18 Pa.C.S.A. § 2506(a). We find no abuse of discretion in the
court’s determination and affirm.
The Commonwealth filed charges against Klunk stemming from the drug
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 Retired Senior Judge assigned to the Superior Court.
1 Specifically, the court granted relief responsive to the section titled “Motion
in Limine to Exclude from Trial and/or Suppress Statements Attributed to the
Defendant[.]” Omnibus Pretrial Motion, 5/19/21, at 2 (unpaginated).
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overdose death of the victim, Lonnie Baer. Klunk would later file, in his
omnibus pretrial motion, a hybrid motion to suppress/motion in limine, which
sought to prevent the admission of Detective Craul’s testimony. See Omnibus
Pretrial Motion, 5/19/21, at 2 (unpaginated). Said testimony was gleaned on
the same date as Klunk’s waiver of his preliminary hearing. Klunk asserted
that the Detective’s questioning was custodial and therefore, in the absence
of any Miranda warnings, a violation of his Fifth Amendment rights under the
United States Constitution. See Miranda v. Arizona, 384 U.S. 436 (1966).
At the hearing on his hybrid motion, Klunk called the attorney who
represented him at the waiver of his preliminary hearing, Attorney William
Graff, as well as the case’s affiant, and later questioner, Detective Craul.
In piecing their testimonies together, Attorney Graff, preoccupied with
an off-the-record conversation with the magisterial district judge (MDJ)
overseeing proceedings that day, signaled the Detective onward to speak with
his client. Specifically, Klunk’s attorney in conjunction with the MDJ were
completing the preliminary hearing waiver paperwork, and after the ask was
made, Attorney Graff stated to the Detective that he could inquire as to
whatever he wanted of his client.
Although Attorney Graff did not specifically remember representing
Klunk, he affirmatively stated that it was not his normal practice to allow a
detective to ask questions of his clients without, at a minimum, querying as
to what the content of the questioning would be. Moreover, Attorney Graff
indicated that he did not discuss Klunk’s right to counsel or Klunk’s lack of
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obligation to speak with the Detective prior to the Detective’s questioning of
him. Attorney Graff would maintain that authorizing the Detective to speak
with his client, considering the death-related charges Klunk was facing, was
just “an off-the-cuff comment. [Attorney Graff] didn’t know if [the Detective]
was going to say anything to [Klunk] or not. [He] was too busy talking to [the
MDJ].” N.T., 8/12/21, at 6.
In his own words, the Detective would indicate that Attorney Graff, prior
to the preliminary hearing waiver, conveyed that there would be no dispute
that Klunk delivered heroin, but that the heroin furnished by Klunk, in fact,
did not result in Baer’s death.
After Attorney Graff gave the Detective access to Klunk, Klunk, outside
the presence of his counsel, admitted that he acquired heroin in Philadelphia,
that he sold a bag of heroin to Baer for a couple of bucks, and that Klunk
consumed that same batch of heroin himself but did not get sick. Klunk was
not under arrest while the two were communicating, and the Detective
characterized the conversation as casual. However, the Detective, despite
seeking information for investigation purposes, did not indicate to Klunk why
he was asking questions or apprise Klunk of his right not to speak with him.
In addition to the already named individuals, two of the victim’s family
members and a stenographer were also present in the same room throughout
the entirety of the previously described events.
Although, in the more recent proceedings, Klunk asserted a Fifth
Amendment violation in his hybrid motion, Klunk’s current counsel conceded,
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at the corresponding hearing, that he was not in custody and that, therefore,
Miranda warnings were, in all likelihood, not necessary. Counsel further
noted, inter alia, that Klunk was free to walk into and out of waiver of
preliminary hearing proceedings and that his bail was not in jeopardy.
However, reflecting on the motion in limine portion of the hybrid motion,
Klunk also orally sought exclusion, rather than suppression, of the Detective’s
testimony, contending that Klunk’s admissions were extremely prejudicial,
outweighing their probative value. In response, the Commonwealth, inter alia,
advanced an argument that Klunk waived his Sixth Amendment right to
counsel as his attorney, standing in the same room, allowed access to him,
and Klunk voluntarily spoke with the Detective.
In its ruling, the court first found that there was no Fifth Amendment
basis for suppression. However, as to the motion in limine, the court stated
its concern for whether, under the Sixth Amendment, Klunk’s waiver of
counsel was “knowing, voluntary, and intelligent.” Id., at 39. The court was
not convinced that Klunk effectively waived his counsel:
[i]t’s not Attorney Graff who can waive his client’s right to effective
counsel. It’s … Klunk who has to waive it. And Attorney Graff was
up talking to the MDJ and told the detective, you can go talk to
my client. [Attorney Graff] didn’t counsel with his client and say,
based on the evidence I have in front of me, hey, you know, say
this, don’t say that, as far as issue areas, so I don’t have a record
before me that convinces this [c]ourt that at the moment, at the
very short period of time, that … Klunk made a knowing,
voluntary, and intelligent waiver of his right to have counsel.
The statements of Klunk, if presented at trial, are certainly
probative and helpful to the Commonwealth. The prejudicial effect
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to [Klunk] is extremely high. When that is weighed against – or
viewed through the prism of the fact that those statements were
made, and the [c]ourt is finding that he did not knowingly,
voluntarily, and intelligently waive his 6th Amendment right to
counsel, I am going to exclude those statements. That is essential
to preserve the fairness of this proceeding going forward.
Id., at 39-40. The court also noted that because Attorney Graff did not
specifically remember whether he had any type of strategy in allowing this
questioning, it was highly unusual, in a vacuum, for an attorney to allow this
type of interaction between a client and a police officer. In sum, the court
excluded the Detective’s testimony jointly predicated on Sixth Amendment
and unfair prejudice grounds. The court would later summarize that “[i]n
essence, Attorney Graff provided [Klunk] with no legal advice, guidance, or
protection whatsoever, as he turned him over to an experienced detective for
unqualified questioning in a death case.” Trial Court Opinion, 10/15/21, at 8.
After the court made its ruling, the Commonwealth filed a timely notice
of appeal, which, as an interlocutory appeal, contained proper certification.
See Pa.R.A.P. 311(d) (indicating that this outcome would terminate or
substantially handicap the prosecution in this case). Thereafter, the relevant
parties complied with their respective obligations under Pennsylvania Rule of
Appellate Procedure 1925. Accordingly, this appeal is ripe for review.
The Commonwealth presents three issues:
1. Did the lower court err in granting Klunk’s motion to suppress
based on grounds not raised within that motion?
2. Did the lower court err in finding Klunk’s waiver of his Sixth
Amendment right to counsel was not knowing or voluntary?
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3. Did the lower court err in incorrectly applying a Sixth Amendment
analysis to a claim of prejudice under the Pennsylvania Rules of
Evidence?
See Commonwealth’s Brief, at 4-5.
Preliminarily, we note the ambiguity in the record as to whether the
lower court granted Klunk’s motion to suppress or his motion in limine. As
evidenced, supra, the Commonwealth framed its first question as predicated
on it having appealed from the grant of a suppression motion. However, the
court’s verbiage in its order, speaking in terms of exclusion and unfair
prejudice, see Pa.R.E. 403 (allowing for the exclusion of relevant evidence if
there is a danger of unfair prejudice), falls more squarely within the dictates
of a motion in limine. In either case, “the Commonwealth may appeal a pre-
trial ruling on a motion in limine which excludes Commonwealth evidence in
the same manner that it may appeal an adverse ruling on a suppression
motion[.]” Commonwealth v. Boczkowski, 846 A.2d 75, 87 (Pa. 2004).
Our Supreme Court has stated: “[t]here is no essential difference
between suppression rulings and rulings on motions in limine to admit or
exclude evidence. In both cases, a pretrial ruling is handed down which admits
or excludes evidence at trial[.]” Commonwealth v. Gordon, 673 A.2d 866,
868 (Pa. 1996). “That suppression motions are always of constitutional
dimension and motions in limine are only sometimes of constitutional
dimension is of no import[.]” Id.Despite the court utilizing, predominantly, a motion in limine analysis,
we affirm its decision as if it were purely a suppression issue being decided.
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See Commonwealth v. Clouser, 998 A.2d 656, 661 n.3 (Pa. Super. 2010)
(“It is well-settled that this Court may affirm on any basis.”). If we were
performing a motion in limine review, the exclusion of such evidence would
be at the sound discretion of the trial court and subject to an abuse of
discretion standard. See Commonwealth v. Arrington, 86 A.3d 831, 842
(Pa. 2014). However, in the context of a Commonwealth appeal from a
suppression order:
[the appellate court] follow[s] a clearly defined standard of review
and consider[s] 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 facts bind an appellate court if the
record supports these 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. Deck, 954 A.2d 603, 606 (Pa. Super. 2008) (citation
omitted).
The Commonwealth avers that the lower court “abused its discretion
where it sua sponte granted [Klunk’s] motion to suppress on grounds not
within [his] motion.” Commonwealth’s Brief, at 21. After it became clear that
there was no Fifth Amendment violation present in this case, the court’s
conclusion that Klunk’s Sixth Amendment right to counsel had been violated
was improper because the court “may only rule on allegations specifically
raised in a [d]efendant’s omnibus pretrial motion.” Id., at 22.
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While we agree with the Commonwealth that a suppression motion
“shall state specifically and with particularity the evidence sought to be
suppressed, the grounds for suppression, and the facts and events in support
thereof,” Pa.R.Crim.P. 581(D), the cases cited by the Commonwealth in
support of its argument all feature a concomitant lack of consideration of the
allegedly unasserted issue at the corresponding suppression hearing. See,
e.g., Commonwealth v. Whiting, 767 A.2d 1083, 1087 (Pa. Super. 2001)
(“Moreover, it was improper for the reason that the court never took any
testimony or evidence at the suppression hearing on this issue and, therefore,
could not make an informed decision.”); Commonwealth v. Carter, 234
A.3d 729, 733-34 (Pa. Super. 2020) (identifying that the suppression motion
and subsequent hearing were wholly unrelated to the basis on which the court
found suppression). Stated differently, because the Commonwealth was
unaware of the precise reasons for suppression ultimately found in those cited
cases, it was unable to defend itself or provide evidence in a responsive motion
or at the attendant hearings.
Here, placing aside the conceptual overlap between the right to counsel
contained within the Fifth and Sixth Amendments, as distinct from Whiting
and Carter, it was the Commonwealth that effectively “opened the door” for
the court to make an informed decision predicated on Sixth Amendment
grounds. When given the opportunity to respond at the hearing, the
Commonwealth cited, in open court, Commonwealth v. Briggs, 12 A.3d 291(Pa. 2011), for the proposition that “defendants can voluntarily waive their
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6th Amendment right to counsel, and that’s what happened in this case.
[Klunk] waived that right to counsel.” N.T., 8/12/21, at 35. The
Commonwealth continued: “Attorney Graff was standing in the room. He was
right there. Detective Craul took that opportunity to speak to [Klunk], and
that’s what we have in this case, a statement that was made. His right to
counsel was waived.” Id. A few moments later, the Commonwealth conveyed
to the court that “the 6th Amendment right to counsel attaches after …
charges are brought, and it specifically talks about preliminary hearings, and
at that time police can’t deliberately go out and speak to people unless they
waive their right to counsel, and … that’s what happened in this case[.]” Id.,
at 36.
While there is no explicit mention of the Sixth Amendment in Klunk’s
suppression motion/motion in limine, Klunk argued during the hearing that
“no warnings were given prior to [Detective Craul] asking questions and that
[the Detective] relied upon … the flippant gestures of Attorney Graff to go
ahead and talk to him[.]” Id., at 31. Even though Klunk expressly argued in
the context of the Fifth Amendment, such averments necessarily implicated
the Sixth Amendment, discussed infra, as demonstrated by the
Commonwealth’s response, which attempted to convince the court of Klunk’s
Sixth Amendment waiver.
Clearly, then, this case is not one in which the court made a unilateral
or sua sponte ruling; the Commonwealth ably defended itself against a theory
it thought was present in the case and further cited authority in support of its
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position. Although perhaps inartfully suggested by Klunk, the court, having
observed the full testimony of both Attorney Klunk and Detective Craul, was
well-apprised of the Sixth Amendment issue that was present. In fact, it is
unclear what more testimony could have been taken to give the court more
information in its determination. As such, we find that despite there being no
Sixth Amendment argument in Klunk’s motion, it was fairly suggested by
Klunk’s argument at the corresponding hearing and, further, that the
Commonwealth was fully cognizant of, and completely responsive to, the Sixth
Amendment issue to the point where the court was able to make an informed
decision.
Having found no fatal defect in the procedure employed by Klunk and
the court prior to the court’s suppression determination, we next must
evaluate whether Klunk was, in fact, deprived of his Sixth Amendment right
to counsel. We conclude that he was.
The Sixth Amendment to the United States Constitution indicates,
among other things, that “[i]n all criminal prosecutions, the accused shall
enjoy the right to … have the assistance of counsel for his defense.” See also
Pa. Const. Art. I, § 9 (enumerating, materially, the same right to counsel).
“The right to counsel extends not only to certain summary proceedings, at
trial, guilty plea hearings, sentencing, but also to every critical stage of a
criminal proceeding.” Commonwealth v. Fill, 202 A.3d 133, 138 (Pa. Super.
2019) (citations omitted); see also Commonwealth v. Carlson, 244 A.3d
18, 22 (Pa. Super. 2020) (stating that the Sixth Amendment right to counsel
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attaches at the initiation of adversarial proceedings, including the filing of a
criminal complaint) (citation omitted). “The essence of [a defendant’s Sixth
Amendment] right is the opportunity for a defendant to consult with an
attorney[.]” Carlson, 244 A.3d at 23 (citation omitted). “Once the adversary
judicial process has been initiated, the Sixth Amendment guarantees a
defendant the right to have counsel present at all critical stages of the criminal
proceedings.” Id. (citation omitted).
Generally, “[c]ourts indulge every reasonable presumption against
waiver of fundamental constitutional rights and … do not presume
acquiescence in the loss of fundamental rights. A waiver is ordinarily an
intentional relinquishment or abandonment of a known right or privilege.”
Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (footnotes and citations
omitted). “After the Sixth Amendment right to counsel attaches, it does not
depend upon any further request by the defendant.” Commonwealth v. Hill,
42 A.3d 1085, 1091 (Pa. Super. 2012) (citation omitted). “In other words, the
Sixth Amendment right to counsel is ‘self-effectuating,’ in that the accused
has no obligation to assert it.” Id. (citation omitted). By way of example, if
the government is deliberately eliciting incriminating information in the
absence of counsel and after the attachment of the Sixth Amendment right,
absent some sort of definite waiver by a defendant, that act constitutes a
constitutional violation. See Massiah v. United States, 377 U.S. 201, 206
(1964).
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In order to waive one’s Sixth Amendment right to counsel, such a waiver
must be “voluntary, knowing, and intelligent.” Hill, 42 A.3d at 1091 (citation
omitted). “The determination whether an accused has knowingly and
voluntarily waived his constitutional rights depends on the facts of each
particular case. These circumstances include the background, experience and
conduct of the accused.” Id. (citations omitted). The onus is on the
government to demonstrate, by a preponderance of the evidence, that a
waiver was a “free and deliberate choice[.]” Id. (citation omitted).
The Commonwealth does not dispute that Klunk had a Sixth Amendment
right to counsel when he was questioned by the Detective. See
Commonwealth’s Brief, at 19. However, the Commonwealth’s position is that
there was no Sixth Amendment violation. Klunk’s attorney was present in the
same room as Klunk when Klunk’s attorney waived the Detective on to speak
with him. Stated differently, there was no deprivation of counsel in this
instance because Klunk’s attorney was mere feet away. Moreover, the
Commonwealth highlights that it was not a custodial interrogation, but instead
a casual conversation, so Klunk’s ability to terminate the interaction at any
point further shows no Sixth Amendment problem. Finally, the Commonwealth
asserts that it did not engage in any coercion or trickery to get Klunk to admit
to inculpatory pieces of information throughout the Detective’s questioning.
In response, the court writes that the Commonwealth’s position
[u]tterly discounts Attorney Graff’s testimony that he was busy
chatting with the [MDJ] and that, under normal circumstances, he
would have found out what subjects the detective intended to
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delve into. Attorney Graff had not discussed [Klunk’s] rights with
him, nor advised [Klunk] as to his obligation, or lack thereof, to
speak with the [D]etective. The conversation was described as
casual. It was so casual that the [D]etective did not apprise
[Klunk] of any constitutional rights or of his right to remain silent.
The [D]etective did not inform [Klunk] as to the subject of the
conversation. The [D]etective did not even inquire whether
[Klunk] wished to talk to him before launching into questioning
designed to elicit incriminating statements.
Trial Court Opinion, 10/15/21, at 14. The court concluded that Klunk was not
aware of “the nature of his rights, nor of the ramification of forgoing them.”
Id., at 15. In addition, the court noted that, despite the apparent trial strategy
involving Attorney Graff admitting to certain elements of the crimes with which
Klunk had been charged, “the right to waive counsel belongs to [Klunk] and
not to Attorney Graff.” Id.
At the suppression/motion in limine hearing, the Detective told the court
that there was no conversation between Klunk and Attorney Graff after the
Detective asked if he could speak with Klunk. See N.T., 8/12/21, at 13.
Without any prior qualification or any other identifying pieces of information,
the Detective began to ask questions of Klunk. See id., at 15. The Detective
did not tell Klunk that he did not have to answer his questions, nor did he give
Klunk any type of constitutional warnings. See id., at 16. Furthermore, the
Detective did not inquire as to whether Klunk wanted to speak with him. See
id. At no point did the Detective tell Klunk that he was extracting information
as part of his investigation into the victim. See id., at 17.
Despite Klunk’s counsel being technically in the room at the time, it does
not appear, from the record, that he was “present” for Sixth Amendment
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purposes. In other words, the facts of this case compel a finding that Attorney
Graff’s preoccupation with the MDJ effectively denied Klunk his Sixth
Amendment right to counsel: Klunk’s attorney had absolutely no idea what
content the Detective would discuss with his client or even what the
Detective’s particular purpose was in seeking that meeting.
It is true that Klunk could have waived his Sixth Amendment right at
any point. See Montejo v. Louisiana, 556 U.S. 778, 786 (2009) (“[T]he
defendant may waive the right whether or not he is already represented by
counsel; the decision to waive need not itself be counseled.”). However,
beyond the mere fact that Klunk provided responses to the Detective’s
questions, there is no evidence to show that Klunk, in fact, knowingly or
intelligently waived this right to counsel. From his own testimony, the
Detective did not provide any context to his questioning nor did he identify
what his purpose was. Moreover, Klunk’s attorney intentionally or unwittingly
placing his client in a position to be interrogated in his absence is immaterial
to whether Klunk, himself, knowingly waived his constitutional right.
While we ascribe no malice or nefariousness to the Detective’s actions,
especially as he was acting with at least some level of consent from Klunk’s
attorney, the information gleaned from the Detective’s interview was not
extracted after a clear waiver of Klunk’s constitutional right.2 Therefore, it
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2For example, although such hypotheticals are not presently before us, if the
Detective had expressly identified his purpose or unambiguously asked Klunk
(Footnote Continued Next Page)
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was not an error or an abuse of discretion for the court to find a Sixth
Amendment violation, and we affirm having construed the lower court’s
decision through the lens of suppression.3
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/11/2022
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whether he wanted to proceed despite the topic being discussed, the likelihood
of finding a Sixth Amendment violation would have greatly diminished.
3 As we affirm on a basis distinct from the lower court, wholly on suppression
grounds, discussion of the court’s unfair prejudice finding made pursuant to
Pennsylvania Rule of Evidence 403 and in the context of the Sixth Amendment
is unnecessary.
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