Com. v. Neal, G. ( 2023 )

J-A28005-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
GERALD NEAL : No. 1336 EDA 2022
Appeal from the Order Entered April 22, 2022
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001793-2019
BEFORE: PANELLA, P.J., LAZARUS, J., and SULLIVAN, J.
MEMORANDUM BY PANELLA, P.J.: FILED JUNE 20, 2023
The Commonwealth of Pennsylvania appeals from the order granting
Gregory Neal’s omnibus pretrial motion to suppress statements he made to
Pennsylvania State Troopers while in custody. The trial court found that the
Troopers continued to question Neal after he invoked his right to silence. After
careful review, we affirm.
The essential facts underlying this appeal are not in dispute.
Pennsylvania State Police sought to question Neal concerning the shooting
death of Neal’s paramour, Jeanette Sancho. Neal was subsequently detained
in Flushing, New York. Two Pennsylvania State Police Troopers, Trooper Brian
Noll and Trooper Brian Janoski, drove to the police station in Jamaica, New
York to interview Neal.
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The Troopers identified themselves to Neal, informed him that they were
investigating Sancho’s death, and then provided Miranda1 warnings to Neal.
The Commonwealth concedes that, at this point, Neal invoked his right to
remain silent, but argues that Neal, “a sophisticated criminal,” then “initiated
further communication” with the Troopers. Appellant’s Brief, at 9. In contrast,
the trial court concluded that the Troopers failed to honor Neal’s invocation of
his right to remain silent, and therefore suppressed the entirety of the
interview. The Commonwealth filed this timely interlocutory appeal, certifying
that suppression of the statement would substantially handicap the
prosecution of its case pursuant to Pa.R.A.P. 311(d).
On appeal, the Commonwealth contends that Neal “reinitiated a
discussion with the Troopers” and the circumstances reflect that Neal made “a
free and deliberate choice … to engage the police in a long-winded and mostly
random discussion, not a confession obtained through intimidation, coercion
or deception.” Appellant’s Brief, at 9.
We review an order suppressing evidence de novo. See
Commonwealth v. Petty, 157 A.3d 953, 955 (Pa. Super. 2017). However,
the suppression court’s findings of fact are binding on appeal if they are
supported by the record created at the suppression hearing. See id. The
Commonwealth bore the burden of establishing that Neal knowingly and
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1 Miranda v. Arizona, 384 U.S. 436, 467–69 (1966).
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voluntarily waived his right to silence. See Commonwealth v. Baez, 21 A.3d
1280, 1283 (Pa. Super. 2011) (citation omitted).
We begin by noting that a hearing on Neal’s suppression motion was
scheduled for March 7, 2022. While it is undisputed that some form of hearing
occurred that day, it was not transcribed and therefore is not of record. Neither
party disputes the trial court’s statement that “the Commonwealth submitted
a thumb drive containing … a video/audio recording and a transcript” of the
June 6, 2019 interrogation of Neal. This thumb drive is in the certified record.
As neither the parties nor the trial court reference evidence outside the
interrogation itself, we conclude that the deficiencies in the record do not
hinder our ability to review the Commonwealth’s issue on appeal.2
We have reviewed both the transcript of the interrogation and the
video/audio recording itself and conclude that there are no meaningful
differences between them. The recording does provide additional context in
that it reveals the length of pauses between questions and answers, as well
as the time spent by Trooper Noll in responding to Neal’s invocation of his
right to silence. Based on this review, we note that when the Troopers asked
Neal to sign a waiver of his Miranda rights, Neal stated, “I wish to adhere to
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2As the appellant, “the ultimate responsibility of ensuring that the transmitted
record is complete” rested squarely with the Commonwealth. See
Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc).
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my rights. … I haven’t a desire to speak.” Transcript of interview, 6/6/2019,
at 6.
The Commonwealth does not dispute that this statement constituted an
invocation of Neal’s right to silence. See Appellant’s Brief, at 12. Rather, the
Commonwealth correctly argues that even though Neal invoked his right to
silence, he still retained the power to waive this right. See Commonwealth
v. Frein, 206 A.3d 1049, 1065 (Pa. 2019). An explicit statement of waiver is
not necessary. See Commonwealth v. Bomar, 826 A.3d 831, 843 (Pa.
2003). Instead, “[w]aiver can be clearly inferred from the actions and words
of the person interrogated.” Id. (citations omitted). “[T]he admissibility of
statements obtained after the person in custody has decided to remain silent
depends under Miranda on whether his right to cut off questioning was
scrupulously honored.” Frein, 206 A.3d at 1065 (citation and internal
quotation marks omitted).
There are few bright-line standards in determining whether a defendant
has waived his previously invoked right to silence; each case must be
addressed based on its own particular circumstances. See id. To the extent
there are standards, they are the same regardless of whether the accused
invoked their right to silence or their right to counsel. See id. at 1066; see
also Berghuis v. Thompkins, 560 U.S. 370, 381 (2010) (noting that “there
is no principled reason to adopt different standards” for the right to silence in
contrast to the right to counsel”).
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One bright-line standard that does exist is that the Commonwealth
cannot establish a valid waiver of the right to silence “by showing only that
[the defendant] responded to further police-initiated custodial interrogation
even if he has been advised of his rights.” See Frein, 206 A.3d at 1065
(citation and italicization omitted). In other words, if “an individual indicates
in any manner, at any time prior to or during questioning, that he wishes to
remain silent, the interrogation must cease.” Id. at 1064 (citation and internal
quotation marks omitted).
Here, Trooper Noll responded to Neal’s invocation of his right to silence
by encouraging Neal to cooperate with the investigation:
Okay. Like we said, that’s – that’s your right, you don’t have
to talk to us. [Basically, the deal is] out in the area [of] Saw Creek
[and] again, I think what you kind of have an idea of what we’re
… talking to you about, but they – they found Jeanette, right? …
[S]o basically we’re trying to figure out what went wrong here and
… why Jeanette’s out there.
[Again,] there’s – there’s nothing that says that … we gotta
force you here, but … everybody’s got their reasons on that. As
we go through it here, all this stuff is gonna kind of spin out of
control. So this is kind of your opportunity now if you [have
anything to] discuss, now would be the time to do it. And like I
said, this … kind of thing gets out of control real quick. Before you
know it, some like pencil neck reporter is putting words in your
mouth and … making things more exaggerated than they might’ve
been.
You had a bit of a … trying week here, right, up and down
the east coast. Some … shit went down, right? We’re at the point
now, I think we’re all on the same page, we know what went
down. The issue is why did it – why did it go down. Right?
And like I said, the ball is kinda in your court, we … can’t
make you say anything to us, but at the same time, I gotta tell
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you, I’m at the very least curious as to what’s going on. I don’t
know if … you’re wronged in some kind of way. I’d like to talk to
you about it. Like I said, we made the trip out here from …
Pennsylvania specifically for this reason, to get kind of your side
of the story here. Everybody’s got a side of the story, right? I’ve
been doing this job for about 10 years now. There is no black and
white, there is no cut and dry, … but again, that … ball’s in your
court here.
…[I]f this was something that’s gonna be like a complete
shock to everybody, I … can understand maybe you not wanting
to get your side out there, but we’re at the point now where, like
I said, that they’re … spending money to send the troopers out
here from Pennsylvania to talk to you, it’s … for a reason. …[W]e’re
just trying to get to the bottom as far as what that … reason might
be. And if it’s something that, … you know, hey, it’s certainly
possible that it’s something that is … misconstrued on our end, it’s
certainly possible that … some of this other stuff that we want to
talk to you about is just … we don’t know … that’s why we wanna
talk to you.
The only one who has the … answers … is you, as far as the
– the reasoning for … this stuff going down here, right? When I
come back to Pennsylvania, that’s the first thing my boss is gonna
ask me. He’s gonna say, hey, how was Gerald?
I’m gonna say, hey, you know what, the … guys out in New
York, they said he was fine with them, cooperative, no issues; but
the next question everybody’s just gonna have is, what the hell
happened, you know, the why. I don’t think any of this stuff was
… planned, I think something kind of escalated here. I know that
you’re under a tremendous amount of stress right now, right?
What’s the deal with … this warrant down in … Virginia? I guess
there was supposed to be something down there as far as … a
sentencing down there? Was that a sentencing or was that a trial
date? They said –
Transcript of interview, 6/6/2019, at 6-9. At this point, Neal interrupted
Trooper Noll to answer the Trooper’s question about a sentencing proceeding
in Virginia. See id. at 9.
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The Commonwealth argues that Neal’s response to Trooper Noll’s query
about sentencing dates in Virginia establishes that Neal voluntarily waived his
right to silence. Much like the trial court, we disagree.
In Frein, our Supreme Court faced a similar issue. There, the defendant,
Frein, also invoked his right to silence after being asked to sign a written
waiver of his Miranda rights. See Frein, 206 A.3d at 1066-67. Despite this,
Troopers continued to question him. See id. at 1067. Frein then asked the
Troopers if they were fathers. See id. After the Troopers answered his
question, they continued to question him about the murder for which he was
arrested. See id. Frein made several inaudible comments before once again
invoking his right to silence. See id. at 1067-68. Troopers once again resumed
questioning Frein, leading to several inculpatory statements. See id. at 1068.
The Supreme Court of Pennsylvania held that Frein’s right to silence had
been violated by the continued interrogation. See id. at 1069. To support its
conclusion, the court highlighted two circumstances. First, the court noted that
“there was no break in the questioning once [Frein] stated that he did not
want to talk about the crimes, or, indeed, at any time during the interview.”
Id. (italicization omitted). Second, the Troopers “did not remind [Frein] that
he had a right not to speak.” Id. at 1070.
Here, as in Frein, there was no break in the questioning. Also similar to
Frein, Trooper Noll did not re-warn Neal before asking him further questions.
Further, unlike Frein, Neal did not ask Trooper Noll a question. See id. at
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1069. Instead, Neal merely answered a question posed to him after he had
already invoked his right to silence. In our view, asking a question during a
coercive interrogation is more indicative of a voluntary action than answering
one.
We cannot conclude that, under these circumstances, Neal’s invocation
of his right to silence was scrupulously honored. The interrogation never
ceased after he invoked his right to silence. In fact, Neal sat in silence for four
minutes while Trooper Noll spoke until Trooper Noll directed questions at Neal
about a sentencing hearing in Virginia, and Neal responded. See Transcript of
interview, 6/6/2019, at 9. From that point forward, for over two hours, without
pause or break, the Troopers continued asking Neal questions about a variety
of subjects including the crimes for which he was a suspect.
Further, this disregard for Neal’s invocation of his right to silence was
only enhanced when, 27 minutes into the interrogation, Neal once again began
to invoke his right to remain silent:
Trooper Noll: If we're saying now, we perceive that, uh,
Jeanette is deceased and you're the one who
caused her to be that way.
Mr. Neal: Then I would say that[,] before I speak on
anything regarding that[,] and I have the right
to remain—
Trooper Noll: Like I said, this whole time -- this whole time
I’ve been sitting here, you --- you don’t -- you
don’t have to talk to us, but like I said, you’re -
- you’re -- you’re a man of -- of philosophical
endeavors here. You say you -- you believe in
reaping what you sow, you believe that maybe
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-- maybe you believe that what you did wasn’t
-- wasn’t wrong. Like I said, if you can help me
to understand --
Id. at 37-38. It is clear from the recording that Neal intended to once again
invoke his right to remain silent. However, Trooper Noll interrupted him before
he could finish the sentence.
This pattern repeated when, over two hours into the interrogation, Neal
began to indicate that he wanted to consult an attorney before speaking more,
but Trooper Noll once again interrupted him:
Trooper Noll: No, you shooting Terrance and you shooting
Jeanette. We're so fucking far beyond this,
Gerald, right now, come on, man. What are you
concerned about? What are you worried about?
Tell me. What's holding you back?
Mr. Neal: My attorney conversation.
Trooper Noll: What did he say?
Mr. Neal: I ain't have it.
Trooper Noll: Okay.
Mr. Neal: I just want to have a conversation with--
Trooper Noll: What’s -- what’s that gonna change? Doesn’t --
doesn’t change the facts, it doesn’t change what
happened, right? Do you think it changes the
facts?
Id. at 180-81.
Viewing the interrogation as whole, we cannot conclude that the
Troopers ever scrupulously honored either Neal’s first invocation of his right
to silence or his multiple subsequent attempts to invoke his Miranda rights.
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Further, we cannot accept the Commonwealth’s argument that Neal’s
apparent relaxed manner and willingness to discuss esoteric subjects with the
Troopers vitiates the Troopers’ failure to scrupulously honor Neal’s invocation
of his right to silence. As such, we can find no fault in the trial court’s
conclusion that the entirety of the interrogation must be suppressed. We
therefore affirm the trial court’s order.
Order Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/20/2023
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