Com. v. Nesbit, J. ( 2021 )

J-S16043-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JONATHAN NESBIT : No. 170 EDA 2021
Appeal from the Order Entered November 25, 2020
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0002557-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JONATHAN NESBIT : No. 171 EDA 2021
Appeal from the Order Entered November 25, 2020
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000910-2019
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 23, 2021
The Commonwealth brings this interlocutory appeal1 from the order
entered in the Court of Common Pleas of Monroe County denying its motion
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* Former Justice specially assigned to the Superior Court.
1 This Court has jurisdiction over the present appeal filed by the
Commonwealth of Pennsylvania pursuant to Pennsylvania Rule of Appellate
(Footnote Continued Next Page)
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to dismiss Defendant/Appellee Jonathan Nesbit’s Omnibus Pretrial Motion as
untimely filed, granting Nesbit’s motion to extend the time for filing his
Omnibus Pretrial Motion nunc pro tunc, and granting Nesbit’s motion to
suppress statements he made during his custodial interrogation as the
involuntary product of Miranda2 violations.
Herein, the Commonwealth contends that the court’s order accepting
Nesbit’s untimely motion for merits review contravened our Rules of Criminal
Procedure and interpretive decisional law, as Nesbit demonstrated neither
cause for the significantly late filing of his Omnibus Motion nor that
justice required the court to accept the untimely motion. After careful review,
we reverse and remand.
The present case arises from the Pocono Mountain Regional Police
Department’s investigation into the April 2, 2019 overdose-related death of 26
year-old Jaidee Ortiz. Police learned through witness statements and
examination of Ortiz’s text messages that one Ronald Aherns had delivered
heroin to Ortiz earlier that day.
Using Ortiz’s phone, Corporal Lucas Bray posed as Ortiz and arranged
another heroin purchase with Aherns. When Aherns arrived, police arrested
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Procedure 311(D), as the Commonwealth has asserted in its Notice of appeal
that the Order below will terminate or substantially handicap the prosecution
of this matter. See Commonwealth v. Liddie, 21 A.3d 229, 232 n.2 (Pa.
Super. 2011).
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
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him. Aherns subsequently provided a statement to police implicating the 27
year-old Nesbit as his supplier.
Now posing as Aherns while using Aherns’ cell phone, Corporal Bray
arranged with Nesbit to purchase four heroin bags of approximately one gram
from him, with delivery to be made at Aherns’ home. When Nesbit arrived as
arranged, he was arrested with four bags of heroin, which later tested positive
for fentanyl, in his possession.
Corporal Bray and Corporal Matthew Nero brought Nesbit to an interview
room at the Pocono Mountain Regional Police Department, where Nesbit
eventually provided an uncounseled statement of his involvement with the
delivery of heroin/fentanyl to both Ahrens (who delivered to Ortiz) and
Corporal Bray (posing as Ahrens).
On April 4, 2019, a criminal complaint was filed against Nesbit at 910
CR 2019. In that docket, Nesbit was charged with Possession with Intent to
Deliver, to wit: heroin and/or fentanyl, 35 Pa.C.S. § 780-113(a)(30),
(“PWID”); Criminal Use of Communication Facility, 18 Pa.C.S.A. §7512(a);
Intentional Possession of Controlled Substance by Person not Registered,
35 Pa.C.S. § 780-113(a)(16); and Possession of Drug Paraphernalia,
35 Pa.C.S. § 780-113(a)(32. These charges stem from a drug transaction
occurring on April 3, 2019, in Tunkhannock Township, Monroe County,
Pennsylvania.
On June 13, 2019, a criminal complaint was filed against Nesbit at 2557
CR 2019. In that docket number, Nesbit was charged with Drug
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Delivery Resulting in Death, 18 Pa.C.S.A. § 2506(a), Manufacture, Deliver
or Possession with Intent to Deliver, to wit: heroin, 35 Pa.C.S. § 780-
113(a)(30); Criminal Conspiracy – Engaging in Manufacture, Delivery or
Possession with Intent to Deliver, 18 Pa.C.S.A. § 903(a)(1); Criminal Use of
Communication Facility, 18 Pa.C.S.A § 7512(a); and Intentional Possession of
Controlled Substance by Person not Registered, 35 Pa.C.S.A § 780-
113(a)(16). These charges stem from an alleged drug delivery which resulted
in the death of Jai Dee Ortiz on April 2, 2019. The delay in filing of these
charges resulted from the need to obtain forensic toxicology reports necessary
for the charge of Drug Delivery Resulting in Death.
From April through November of 2019, six different counsel entered
their appearances and represented Nesbit in both cases.3 The sixth counsel
was appointed conflict counsel and represented Nesbit during the November
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3 The record indicates Nesbit was represented initially by privately retained
counsel, who eventually filed a petition to withdraw which the court granted
on May 29, 2019. Nesbit made an application to the Public Defender’s Office
for representation, but on July 16, 2019, the Defender’s filed a Motion to
Appoint Conflict Counsel since that office represented Mr. Ahrens. On July 17,
2019, conflict counsel was appointed, but he became aware of a conflict and
in late October requested new conflict counsel be appointed in both cases. On
November 4, 2019, second conflict counsel was appointed in both cases,
however, upon his discovery of a conflict, the court appointed a third conflict
counsel on November 14, 2019. On November 26, 2019, for reasons
not developed in the record, the appointment of a fourth conflict counsel
was necessary. As noted, infra, fourth conflict counsel represented Nesbit at
both the hearing in which Nesbit’s cases were joined and at Nesbit’s
arraignment of November 27, 2019, and he filed Nesbit’s untimely Omnibus
Pretrial Motion on February 4, 2020.
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26, 2019 proceeding at which joinder of the two cases against him occurred
and at Nesbit’s November 27, 2019 arraignment.
On February 4, 2020, 69 days after Nesbit’s arraignment, the same
counsel filed an Omnibus Pretrial Motion seeking suppression of Nesbit’s
statements provided during his custodial interrogation. On March 11, 2020,
the Commonwealth filed a Motion to Dismiss the Omnibus Motion as untimely
under the Rules of Criminal Procedure which require such motions to be filed
no later than 30 days after arraignment. See Rule 579(A), infra.
On May 1, 2020, Nesbit retained private counsel, who, on June 8, 2020,
filed, inter alia, a Motion Nunc Pro Tunc requesting an extension of time for
the late filing of the Omnibus Motion. After conducting a June 9, 2020 hearing
on the motion, the court entered its November 25, 2020 Opinion and Order
granting Nesbit’s requested relief, in part,4 and suppressing Nesbit’s
statements made during his custodial interrogation. Pursuant to Pa.R.A.P.
311(D), the Commonwealth filed a timely appeal of the court’s Order,
certifying that the court’s decision terminated and/or substantially
handicapped the prosecution of Nesbit in both cases.
The Commonwealth presents for this Court’s consideration the following
issues:
1. Whether the lower court abused its discretion in denying the
Commonwealth’s Motion to Dismiss [Nesbit’s] Omnibus Motion
and thereby granting [Nesbit’s] Motion to Extend Time for filing
Omnibus Nunc Pro Tunc for cause shown, when [Nesbit’s]
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4 The court denied Nesbit’s motion for habeas relief, which sought dismissal
of all charges.
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Omnibus Motion was beyond the omnibus deadline
in Pa.R.Crim.P. 579 and 581 and [Nesbit] failed to demonstrate
cause for said late filing?
2. Whether the lower court erred in granting Nesbit’s Motion to
Suppress on the basis that Nesbit unequivocally invoked his
right to counsel and any continued questioning violated his
constitutional rights?
Commonwealth’s Brief, at 8.
When the Commonwealth appeals from the grant of a suppression order,
we adhere to the following standard of review:
[We] consider 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 fact bind an appellate court if the
record supports those 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. Korn, 139 A.3d 249, 253-54 (Pa. Super. 2016) (citation
omitted). We review the suppression court's legal conclusions de
novo. Id. “[A]ppellate courts are limited to reviewing only the evidence
presented at the suppression hearing when examining a ruling on a pre-trial
motion to suppress.” Commonwealth v. Harlan, 208 A.3d 497, 499 (Pa.
Super. 2019) (citation omitted).
Raised first is the issue asking whether the trial court properly applied
Pa.R.Crim.P. 579 and 5815 in accepting Nesbit’s untimely suppression motion
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5 Rule 579. Time for Omnibus Pretrial Motion and Service, provides, in
relevant part:
(Footnote Continued Next Page)
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for “cause shown” or ‘in the interests of justice.” Specifically, the trial court
determined the exceptions to Rule 579’s 30-day time-bar applied because five
pretrial counsel had sought and were granted withdrawal for reasons of
conflict during the seven months leading up to the joinder of Nesbit’s two
docketed cases on November 26, 2019 and his arraignment on the second
case on November 27, 2019, when Nesbit was newly represented by his sixth
counsel.
The Commonwealth maintains the court misconstrued the procedural
rules to find that cause was shown or the interests of justice were implicated
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A. Except as otherwise provided in these rules, the omnibus pretrial
motion for relief shall be filed and served within 30 days after
arraignment, unless opportunity therefor did not exist, or the
defendant or defense attorney, or the attorney for the Commonwealth,
was not aware of the grounds for the motion, or unless the time for
filing has been extended by the court for cause shown.
....
Pa.R.Crim.P. 579(A).
Rule 581. Suppression of Evidence, provides in relevant part:
A. The defendant’s attorney, or the defendant if unrepresented, may
make a motion to the court to suppress any evidence alleged to have
been obtained in violation of the defendant’s rights.
B. Unless the opportunity did not previously exist, or the interests
of justice otherwise require, such motion shall be made only after a
case has been returned to court and shall be contained in the omnibus
pretrial motion set forth in Rule 578. If timely motion is not made
hereunder, the issue of suppression of such evidence shall be deemed
to be waived.
Pa.R.Crim.P. 581(A), (B).
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in the present case simply because multiple attorneys represented Nesbit
during the period leading up to his November 27, 2019 arraignment. It
emphasizes there were lengthy periods where one counsel represented Nesbit,
the most important of these taking place from the November 27, 2019
arraignment through May 1, 2020, during which sixth counsel had the
opportunity to file a timely Omnibus Motion, or a motion seeking an extension
of time to do, by December 27, 2019, but he never did. In this respect, the
Commonwealth observes that the court gave no other reason for its decision
to excuse Nesbit’s significantly late filing other than the number of counsel
changes that had preceded the filing of his Omnibus Motion.
A review of the trial court’s Opinion of November 25, 2020, denying the
Commonwealth’s Motion to Dismiss Nesbit’s untimely Omnibus Motion shows
that it relied expressly on the frequent changes in representation to forgive
Nesbit’s untimely Omnibus Motion:
The Commonwealth has asked this [trial court] to dismiss Nesbit’s
Motion as being untimely. Pa.R.Crim.P. 579(A) states that the
“omnibus pretrial motion for relief shall be filed and served within
30 days after arraignment, unless . . . the defendant or defense
attorney, or the attorney for the Commonwealth, was not aware of
the grounds for the motion, or . . . the time for filing has been
extended by the court for cause shown.”
The Commonwealth argues that Nesbit has waived his
suppression issue and his request to sever the cases for trial
because of his untimely Motion[fn] In response to the
Commonwealth’s Motion to Dismiss, Nesbit argues that there have
been six (6) attorneys representing him over a fifteen (15) month
period.[fn] Several of the other appointed attorneys have been
relieved of representing Nesbit due to various conflicts.
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[fn] Nesbit’s Formal Arraignment was held on
November 27, 2019; accordingly, any Omnibus
Pretrial Motions were due on December 27, 2019.
[fn] [The trial court lists each counsel who has
represented Nesbit and his or her respective term of
representation. Notably, conflict counsel appointed
on November 26, 2019 represented Nesbit at his
November 27, 2019 arraignment and filed the
untimely Omnibus Pretrial Motion on February 4,
2020, 39 days after the December 27, 2019 30-day
deadline had expired.] On May 1, 2020, current
counsel entered his appearance for Nesbit in both
cases and on June 8, 2020, counsel filed a Motion to
Extend the Time for Filing Omnibus Nunc Pro Tunc[,
which was substantively identical to the February 4,
2020 Omnibus Motion but simply clarified that the
prior motion failed to indicate it
sought nunc pro tunc relief.
On November 26, 2019, Nesbit’s previous attorney
Bradley Weidenbaum was appointed as conflict counsel and on
February 4, 2020, he filed the Motion which is currently before the
[trial court]. Additionally, Nesbit’s [defense counsel at the time of
the trial court’s opinion] filed a Motion to Extend Time for Filing
Omnibus Nunc Pro Tunc on June 8, 2020.
Pursuant to Pa.R.Crim.P. 581, in the interest of justice, [the trial
court] may permit Nesbit to file a motion to suppress any evidence
alleged to have been obtained in violation of his
rights. After review of the docket entries, which indicate that
several conflict counsel were appointed to represent Nesbit, we
believe these appointments resulted in some delay in having the
pre-trial motion timely filed in this matter. Since a Motion to
Extend Time for filing of the Motion to Extend Time for Filing
Omnibus Nunc Pro Tunc was filed on June 8, 2020, we believe the
late filing of the Motion should be permitted. Thus in the interests
of justice and in fairness to Nesbit, we will deny the
Commonwealth’s Motion to Dismiss.
TCO, 11/25/20, at 2-3.
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For his part, Nesbit posits that Rule 581(B) is written in a flexible
fashion to permit a trial court to consider an untimely suppression motion “in
the interests of justice[,]” or when the opportunity to file the motion did not
previously exist. Appellee’s brief, at 10., citing Commonwealth v. Johnson,
844 A.2d 556, 561 (Pa. Super. 2004); Commonwealth v. Baez, 21 A.3d
1280, 1282 (Pa. Super. 2011) (holding “cause shown” to support trial court
acceptance of nunc pro tunc suppression motion consisted of belated receipt
of supplemental discovery report warranting suppression motion).
On his claimed lack of opportunity to file a timely motion as forming the
basis for Rule 518(B) relief, Nesbit maintains “[t]he procedural confusion
caused by the revolving door of attorneys and the four separate conflicts
therein were outside of [his] control, and his attorneys acted as expediently
as possible given the circumstances of the case. . . . [T]he trial court, in its
sound discretion, ruled [this history] affected the timeliness of the
motion.” Appellee’s brief, at 11.
Nesbit also cites decisional law recognizing that the interests of justice
exception in Rule 581(B) is implicated where “the merits of counsel’s
[untimely] motion [are] so apparent that justice require[s] that it be heard.”
Commonwealth v. Williams, 323 A.2d 862 (Pa. Super. 1974). See also
Commonwealth v. Hubbard, 372 A.2d 687, 693 (Pa. 1977) (discussing
Williams), overruled on different grounds, Commonwealth v. Grant, 813
A.2d 726, 738 (Pa. 2002). The trial court, however, did not allude to the
merits of Nesbit’s motion to suppress in that part of its November 25,
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2020, opinion invoking Rule 581 to deny the Commonwealth’s Motion to
Dismiss.
Nor, for that matter, does Nesbit develop the argument that the merits
of his motion to suppress were so apparent that justice demanded review of
the untimely motion. Nevertheless, we may infer from a separate section of
the court’s opinion granting Nesbit’s Motion to Suppress statements obtained
during the custodial interrogation that the court implicitly found the merits
of his motion to suppress satisfied the Williams test.
As noted supra, our Rules of Procedure require a defendant to file and
serve an omnibus motion no later than 30 days after the date of his
arraignment, unless the opportunity to do so did not exist, or the defense
attorney or the Commonwealth was not aware of the grounds for the motion,
or the court extends the time of filing for cause shown. Pa.R.Crim.P.
579(A). In the instant matter, the trial court decided to address the merits
of Nesbit’s untimely Omnibus Motion/Motion to Suppress pursuant to Rule
579’s exception for cause shown, which, the court determined, was
demonstrated either by Nesbit’s lack of opportunity to file a timely Omnibus
Motion because of the many withdrawals of counsel during the pretrial
period, or by Nesbit’s motion to suppress, the merits of which, the court
found, were “so apparent” that justice demands it be accepted by the court
despite its gross untimeliness.
We take judicial notice of the seven months leading to the November
26, 2019 joinder of Nesbit’s cases and his November 27, 2019 arraignment
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and observe that the period is indeed marked by frequent withdrawals of
counsel primarily for reasons of conflict. Nevertheless, there is no dispute
that counsel who represented Nesbit at his November arraignment remained
counsel through the 30-day period leading to the December 27, 2019 filing
deadline for an Omnibus Motion, and during this period he filed neither the
motion nor a request for an extension of time to file such motion.
Instead, he waited an additional 39 days before filing an
untimely Omnibus Motion 69 days after the arraignment, and he did so
without providing a reason for the great delay. Nor did subsequent counsel
explain in the May 2020 Nunc Pro Tunc Motion to Extend Time for Filing why
there existed no opportunity to file a timely Omnibus Motion seeking
suppression of statements Nesbit provided at his April 3, 2019 custodial
interrogation.
Therefore, the record confirms there were no changes of counsel during
the relevant time between Nesbit’s November 27 arraignment and the
December 27 Omnibus Motion deadline, nor is there any indication that
necessary records or transcripts pertinent to the preparation of the component
motion to suppress were unavailable to counsel. In this respect, the present
case is distinguishable from Baez and Johnson, supra, upon which Nesbit
relies.
Accordingly, we disagree with the trial court’s assessment that previous
counsel changes in the seven months prior to this relevant timeline caused
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the filings of a significantly untimely Omnibus Motion and Motion to Extend
time for Filing.
The trial court’s second basis for reviewing the untimely motion was its
conclusion that the suppression motion’s underlying merits were “so apparent”
that justice required merits review despite our Rules’ general restriction of
review to timely motions.
In Williams, supra, we addressed the “interests of justice” standard
governing a court’s inquiry into whether it may review the merits of an
untimely filed motion to suppress. Williams involved a defendant who had
been charged with driving under the influence of alcohol. At trial, the
investigating officer testified that police responded to a report of an
automobile accident and found an injured defendant slumped behind the
wheel and smelling strongly of alcohol. As he was transported to the hospital,
an empty bottle of whiskey was discovered in the back seat of his car.
The officer testified that he later encountered the defendant in a
hospital cubicle while a physician was stitching defendant’s lip. According to
the officer, the defendant still smelled strongly of alcohol, was in a stupor, and
his speech was slurred and often incoherent, although the officer
understood defendant to claim he had been a decorated boxer in the past
who “knocked out Marciano” and would do the same to the officer. Id.
at 863.
The officer left the cubicle to address the treating physician outside the
presence of the defendant and ask him to take a sample of the defendant’s
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blood for DUI testing. The physician obtained the sample and turned it over
to the officer, who sent it for testing. Id.
At trial, when the prosecution attempted to admit evidence of the blood
test results, defense counsel, for the first time, moved to suppress the
evidence. The trial court refused to hear the motion.
On appeal, this Court reversed, holding that where counsel could not
reasonably have been expected to have discovered the existence of evidence
prior to its introduction at trial, the opportunity to file a pre-trial written motion
could not be said to have previously existed. The defendant was hurt at the
time and did not remember his conversation with the officer, his medical chart
did not indicate a blood sample was taken, and no discovery of the blood
sample was provided. Id. at 864.
We further held that the interests of justice also independently required
the suppression motion to be heard, as the merits of the motion were
apparent. In this regard, we noted several reasons supporting this
determination. First, the officer testified the defendant was not arrested until
13 days after the hospital blood draw, which would negate the
Commonwealth’s theory that the blood draw was a lawful search incident
under governing law in effect at the time. Consequently, we observed that a
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Pennsylvania Supreme Court decision6 in force at the time, holding that DUI
blood test results taken from a hospital patient while he was
undergoing treatment for injuries were unlawfully acquired and subject to
suppression, controlled. Id. at 865.
Even if the officers had declared defendant under arrest in the hospital
prior to the blood draw, the law at the time allowed arrests for misdemeanor
traffic accidents only when the accident occurred in the officer’s presence,
which did not happen in Williams. Therefore, the arrest could have been
deemed invalid on that basis.
Additionally, Williams noted that the then-recently enacted Implied
Consent Law allowed physicians to give consent for chemical testing where
the patient could not physically complete the breath test, but the facts
adduced at trial did not appear to indicate that the defendant’s lip injury would
have prevented him from giving a breath sample.
For these reasons, all of which demonstrated with virtual certainty that
defendant’s motion would be meritorious if heard, the Williams Court
concluded that the merits of the oral motion were “so apparent” that the
motion should have been accepted at trial. Id. at 865-66.
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6 Commonwealth v. Murray, 271 A.2d 500 (Pa. 1970) (suppressing results
of a blood test taken from a defendant while he was undergoing treatment for
injuries sustained in an automobile accident).
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In the present case, after careful review, we find the merits of Nesbit’s
motion to suppress are not so apparent that justice required the lower court
to accept it 39 days beyond the filing deadline. As reproduced below, the
notes of testimony from Nesbit’s interrogation show
he immediately moderated his stated preference for an attorney by
voluntarily interjecting—in response to the corporal’s neutral statement in
compliance with Miranda7 that no further questions would be asked—what
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7 It is well settled that when an individual is “both taken into custody and
subjected to interrogation,” that individual is entitled
to Miranda warnings. Commonwealth v. Yandamuri, 159 A.3d 503, 520
(Pa. 2017). Specifically, our Supreme Court has explained:
The United States Supreme Court has held that, before law
enforcement officers question an individual who has been in taken
into custody or has been deprived of his freedom in any significant
way, the officers must first warn the individual that he has the
right to remain silent, that anything he says can be used against
him in a court of law, that he has the right to the presence of an
attorney, and that if he cannot afford an attorney one will be
appointed. However, these special procedural safeguards are
required only where a suspect is both taken into custody and
subjected to interrogation. In determining whether a suspect is
in custody, two discrete inquiries are essential: (1) an
examination of the circumstances surrounding the interrogation;
and (2) a determination of whether, given those circumstances,
would a reasonable person have felt that he or she was at liberty
to terminate the interrogation and leave. As noted, a person is in
custody for Miranda purposes only when he is physically denied
his freedom of action in any significant way or is placed in a
situation in which he reasonably believes that his freedom of
action or movement is restricted by the interrogation. ... Whether
an encounter is deemed “custodial” must be determined by
examining the totality of the circumstances.
Id. at 520-21 (citations omitted).
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could reasonably be construed as the beginning of an apparent suggestion as
to how questioning could continue. Nesbit confirmed later in the interrogation
that such was his intention, as he simply wished to retain control over which
questions he would answer if an attorney were not present. See infra.
Notes of testimony from Nesbit’s taped interview begin with Corporal
Bray stating Miranda warnings had been given at the time of arrest and were
being given again at the interrogation. N.T. 4/3/19, at 5-6. The following
exchange then took place:
CORPORAL BRAY: I want to ask you questions. And so these
rights are provided to you. When you’re in custody, we need to
give them to you. So, you’re under arrest, and that’s why we
provided them to you.
MR. NESBIT: All right. Um, I swear I’m – I’m not trying to give
you a hard time or nothin’, but I would prefer to have a lawyer.
CORPORAL BRAY: Okay. That’s –
MR. NESBIT: Yeah.
CORPORAL BRAY: -- fine. Just sign right there that I read
them [Miranda rights] to you.
MR. NESBIT: All right.
CORPORAL BRAY: And I won’t ask you any more questions.
MR. NESBIT: I mean, we can –
CORPORAL BRAY: I’m not sit -- so that, again, I want to ask
you a whole lot of questions. And so the second you say you
want a lawyer present – I mean, you can change your mind. But
when you say that, it kind of trips it. So, um, if you have a lawyer
that you wanted me to call this very second, that I could call and
he’ll come down here, I will wait a little bit and I’ll have that
conversation with you.
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MR. NESBIT: I just don’t want it -- how you said, it could be
used against me in a court of law.
CORPORAL BRAY: Oh, yeah –
MRS. NESBIT: I don’t want – I don’t want get [sic] myself –
CORPORAL BRAY: Well, you’re –
MR. NESBIT: --in any more trouble than I’m already in.
N.T. at 5-8 (emphasis added).
Nesbit’s asserted “preference” for a lawyer at the outset of the
interrogation, standing alone, was fairly unequivocal until he unilaterally and
immediately spoke in disregard of the rights to remain silent and to counsel
that he had just asserted. Not only did the fact that he voluntarily spoke at
all weaken his asserted preference, the suggestion implicit within his uninvited
response to the corporal’s advisement that questioning would stop was
inconsistent with a settled purpose of refusing to participate in the interview.
Specifically, Nesbit’s response of, “I mean, we can . . .” at the moment
Corporal Bray had just indicated that all questioning stops would signal to any
reasonable officer in Corporal Bray’s position that Nesbit may not have wished
to end the interview altogether and was agreeable to some degree of
continued communication. While Nesbit then expressed concern that his
words may be used against him, this acknowledgment within the context of
the interview as it presently stood did not directly negate his insinuation that
questioning need not necessarily stop.
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Moreover, not only did Nesbit never indicate during the remainder of
the interrogation that he wished to have counsel present, he stated the
contrary, that is, that he had simply wished to select which questions he would
or would not answer. N.T. at 4/30/19 at 3-4.8 Police officers are not required
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8 The following excerpt takes place after the corporals realized the batteries
to their audio recorder had died and required replacement. Approximately 15
minutes of interview prior to the excerpt below went unrecorded by the audio
recorder, although a video recorder continued to record both video and audio
of the interview during this time. The court stenographer, however, was
unable to discern the audio sufficiently to transcribe the interview during the
15 minute gap.
When the audio recorder resumed function, the following exchange occurred
between Corporal Bray and Nesbit in which Nesbit states he had been unsure
about the need for a lawyer at the beginning of the interview and wanted
to confirm that he could decline to answer any question asked by Corporal
Bray:
CORPORAL BRAY: So, Jon, you said before you wanted a
lawyer, then you said when we left, you want to talk. For the
record, it’s up to you, but you tell me. So --
NESBIT: I – I just wasn’t sure exactly what, uh --
CORPORAL BRAY: Okay.
NESBIT: --what’s the conversation.
CORPORAL BRAY: So --
NESBIT: That’s all.
CORPORAL BRAY: --you’re a smart kid, right?
NESBIT: Yeah.
(Footnote Continued Next Page)
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to affirmatively seek clarification of an arrestee’s equivocal assertion, nor are
they required to stop questioning when a “suspect might want a lawyer.” See
____________________________________________
CORPORAL BRAY: In here I say that you can decide at any
time to exercise these rights and not enter – answer any questions
or make any statement. So you understand that? So that
means, if you don’t like a question, you don’t' have to answer it.
NESBIT: All right. I understand.
CORPORAL BRAY: If you -- If you don’t -- if you’re just
done, you don’t want to hear anything more, you say, I’m
done. Okay?
NESBIT: All right.
CORPORAL BRAY: But I still – again, I can’t come and try and
get you to talk to me again after you want a lawyer to do it. So I
didn’t do that. Your said, as we were walking out of here – what
did you say?
NESBIT: That’s because I wasn’t sure. So I said, oh, okay,
well, we can talk.
CORPORAL BRAY: Okay.
NESBIT: And --
CORPORAL BRAY: So do you want to like – do you want to
talk to us without a lawyer right now?
NESBIT: Uh, yeah, but at any point if I feel that it’s questions
I don’t want to answer, then --
CORPORAL BRAY: Exactly. That’s what these rights tell you,
that’s why we read them to you, so you understand them.
NESBIT: All right. I understand.
N.T. at 3-4. (emphasis added).
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Commonwealth v. Lukach, 195 A.3d 176, 189 (Pa. 2018) (discussing
jurisprudence declining to adopt a rule requiring police to further question
suspects in attempt to clarify ambiguous references to counsel). See
also Davis v. United States, 512 U.S. 452, 461, 114 S.Ct. 2350, 129
L.Ed.2d 362 (1994) (mandating an officer not be forced “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”).
In this regard, the facts of the case sub judice are distinguishable from
those in Lukach, wherein the Pennsylvania Supreme Court held that police
impermissibly induced the arrestee into speaking through coercive
questioning after he had clearly and unambiguously invoked
his Miranda right to remain silent.
In Lukach, the defendant, a prime suspect in a homicide investigation,
was brought into the police station for an interview and read
his Miranda rights. He began the interview by issuing general denials of any
involvement with the crime, but he then indicated he no longer wished to
speak to the investigators:
CHIEF: And at some point you have a responsibility to yourself
like we talked about but also your family and also your mom.
[LUKACH]: 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.
[LUKACH]: Yeah a little bit.
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CHIEF: It's not perfect right.
[LUKACH]: Yeah. I don't know just, I'm done talking. I
don't have nothing to talk about.
Id., at 179.
The police chief, however, persisted in an extensive dialogue that, while
not comprising direct questioning, still constituted interrogation in the view of
our Supreme Court, “as they were ‘words or actions ... that the police should
know are reasonably likely to elicit an incriminating
response[.]’ Commonwealth v. Briggs, 608 Pa. 430, 12 A.3d 291, 322
(2011), quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682,
64 L.Ed.2d 297 (1980).” Lukach, 195 A.3d 176, 181. The continued
interrogation consisted of the following statements:
CHIEF: You don't have to say anything, I told you that you could
stop.
LUKACH: Ok.
CHIEF: Let me explain to you then, alright?
LUKACH: [Y]eah.
CHIEF: We don't believe you right now.
LUKACH: 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 control what happens to you for however many years
however long.
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LUKACH: 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.
LUKACH: 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.
LUKACH: 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.
LUKACH: Yeah
CHIEF: We will wait a couple minutes with you.
LUKACH: 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.
LUKACH: 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.
LUKACH: Yeah.
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Commonwealth v. Lukach, 195 A.3d at 179–80.9
The Supreme Court agreed with this Court’s conclusion that the
continuing interrogation by the police chief “was ‘meant to pressure [Lukach]
into relinquishing his right’ and ‘the statements [Lukach] thereafter made
were ‘the product of compulsion, subtle or otherwise.’” Id. at 181 (citations
omitted).
However, the Supreme Court made this determination only after it first
conducted an inquiry into whether Lukach had offered an unequivocal
Miranda assertion and, thus, invoked his right to remain silent. It is this
inquiry that is central to our purposes in the case sub judice.
To this end, the Court conducted a review of non-binding, extra-
jurisdictional decisions addressing the question of whether a defendant’s
assertion of either a right to silence or right to counsel was rendered equivocal
by accompanying language that could be construed as qualifying the
statement. Distinguished were cases involving assertions prefaced with
colloquial or conversational phrases, such as “I think I want a lawyer” or “I’d
rather not talk about it” followed by “I don’t want to talk about,” which
were held not to make an assertion equivocal, from cases in which language
____________________________________________
9 Though Corporal Bray’s eventual interrogation of Nesbit similarly involved
indirect questions and statements designed to persuade Nesbit to provide a
full statement about his involvement in the crime committed, Nesbit had not
yet made an unequivocal assertion of his Miranda rights as the defendant
in Lukach had done.
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indicated an intent to modify or limit the assertion, such as “Nah, I don’t want
to talk, man. I mean, I . . . .” Lukach, at 181-187.
This latter statement was addressed in the 8th Circuit Court of Appeals
decision in United States v. Adams, 820 F.3d 317 (8th Cir. 2016), in which
the 8th Circuit Court of Appeals held the defendant’s addition of a qualifier
injected doubt into his prior assertion, thus rendering it equivocal.
Lukach summarized the pertinent facts of Adams, as follows:
In Adams, the defendant was arrested for bank robbery,
informed of his Miranda rights, declined to answer questions, and
the interrogation was terminated. 820 F.3d at 320. Two weeks
later, an FBI agent visited Adams in jail, advised him of
his Miranda rights, and began questioning him. Id. About six
minutes into the questioning, Adams stated “Nah, I don't want
to talk, man. I mean, I...” Id. The FBI agent cut Adams off at
that point and continued to question him, and Adams responded
to the questions. Id. at 321. The interview continued for another
sixteen minutes, during which Adams stated he was innocent and
that he sold his white Dodge Durango — a vehicle which had been
seen parked at the bank — prior to the robbery. Id. at 321-
22. The Eighth Circuit Court of Appeals affirmed the denial
of Adams's motion to suppress his confession to the FBI
agent, finding “[t]he phrase ‘I mean’ signaled that Adams
intended to clarify the statement, ‘I don't want to talk,
man,’ and the statement was therefore ambiguous.” Id. at
323. The court further found relevant the fact that Adams
“continued to talk with [the FBI agent] for an additional sixteen
minutes, never clarifying his earlier statement or otherwise
unequivocally invoking his right to remain silent.” Id.Lukach, 195 A.3d at 187 (2018) (emphasis added).
Whereas Lukach held that the prefatory “I don’t know” uttered by the
defendant in its case was most akin to the merely conversational/colloquial
language which the former group of decisions had deemed immaterial to the
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accompanying assertion of Miranda rights, we find in the present case that
Nesbit’s follow-up statement most resembles that of Adams, in which the
8th Circuit deemed the trailing comment, “I mean, I . . .” a modifier of the
initial assertion of a right to silence, rendering the assertion equivocal.
Nesbit’s second statement has the same effect. As discussed supra, his
offering of, “I mean, we can. . .”, immediately after Corporal Bray had just
indicated all questioning would stop, would signal to a reasonable officer that
Nesbit was suggesting a possible willingness to modify his assertion, to talk
to some degree; it revealed a “pondering” or “contemplation” of the option of
continuing the present interview, in some form, without a lawyer.
An unequivocal assertion of one’s right to counsel during a police
interrogation is a demand to stop the interrogation. So,
when Nesbit voluntarily resumed relevant communications despite the
assertion he had just made, and did so with words apparently meant to modify
or clarify his assertion, it is reasonable to conclude here, just as the 8th Circuit
did in Adams, that he had not yet, at that moment, expressed a settled
purpose of ending the interview until a lawyer is present.
With respect to whether Nesbit thus voluntarily waived his Miranda
rights, we note that our Supreme Court has set forth the following principles
governing the waiver of Miranda rights in the setting of a custodial
interrogation:
When a defendant challenges the admission of a statement made
during a custodial interrogation, the Commonwealth bears the
burden to prove by a preponderance of the evidence that the
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defendant's Miranda waiver was knowing, intelligent, and
voluntary. We engage in a two-part inquiry:
First, the relinquishment of the right must have been
voluntary in the sense that it was the product of a free
and deliberate choice rather than intimidation,
coercion or deception. Second, the waiver must have
been made with a full awareness both of the nature of
the right being abandoned and the consequences of
the decision to abandon it. Only if the totality of the
circumstances surrounding the interrogation reveal
both an uncoerced choice and the requisite level of
comprehension may a court properly conclude
that Miranda rights have been waived.
An examination of the totality of the circumstances
includes a consideration of (1) the duration and means
of an interrogation; (2) the defendant's physical and
psychological state; (3) the conditions attendant to
the detention; (4) the attitude of the interrogator; and
(5) any and all other factors that could drain a
person's ability to withstand suggestion and coercion.
Commonwealth v. Smith, 210 A.3d 1050, 1058 (Pa. Super.
2019) (citations omitted and formatting altered). “This Court has
applied the totality of circumstances test with no less force or vigor
in cases where there was a claim that a promise or inducement
rendered the confession involuntary.” Commonwealth v.
Templin, 795 A.2d 959, 964 (Pa. 2002) (citation omitted).
Further, with respect to improper inducement
of Miranda waiver:
Promises of benefits or special considerations,
however benign in intent, comprise the sort of
persuasions 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
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legal process at the very moment which Miranda was
designed to protect.
Commonwealth v. Lukach, 195 A.3d 176, 192 (Pa. 2018) (citation omitted).
Again, at the very outset of the interrogation, the interview consisted
only of Nesbit receiving Miranda warnings for the second time, his stating his
preference for a lawyer, and his immediate qualification of that stated
preference once Corporal Bray informed him that all questioning would stop.
While Nesbit acknowledged a moment later that he was mindful that his words
could be used against him, as he was so advised, this comment did not negate
his insinuation that he would be interested in some form of communication
with the corporal. Under this record, we discern no improper inducement of
Nesbit’s early decision to retreat from unequivocally asserting his Miranda
right to counsel.
Having thus determined that a reasonable officer in Corporal Bray’s
position could infer that Nesbit voluntarily left open the channels of
communication between himself and the corporal at the outset of the custodial
interrogation, we conclude that the trial court erred when it opined that the
merits of Nesbit’s Omnibus Motion seeking the suppression of all statements
made during the custodial interrogation were “so apparent” that the interests
of justice required the court to accept the motion for merits review despite its
gross untimeliness.
Accordingly, we reverse the trial court’s order of November 25, 2020 to
the extent it dismissed the Commonwealth’s Motion to Dismiss and granted
Nesbit’s Omnibus Motion to suppress, and remand for further proceedings.
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Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2021
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