Commonwealth v. Lukach

J-S94026-16
2017 Pa. Super. 100
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JOSHUA MICHAEL LUKACH
No. 693 MDA 2016
Appeal from the Order April 5, 2016
in the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0001710-2015
BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.*
OPINION BY RANSOM, J.: FILED APRIL 11, 2017
The Commonwealth of Pennsylvania appeals from the order of April 5,
2016, granting in part Appellee Joshua Michael Lukach’s suppression
motion.1 After careful review, we affirm.
The relevant facts and procedural history of this case are as follows.
See Suppression Court Opinion (SCO), 4/2/16, at 2-18.2 On August 6,
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1
The Commonwealth certifies that the order suppressing evidence in this
case substantially handicaps the prosecution of this case. See Pa.R.A.P.
311(d).
2
The interrogation of Appellee was videotaped, and a copy included in the
certified record. Due to the poor quality of the audio track, both Appellee
and the Commonwealth submitted a joint transcription which was included in
the certified record. We have reviewed both the tape and transcription. The
suppression court opinion relies heavily on, and incorporates, the
transcription.
*
Former Justice specially assigned to the Superior Court.
J-S94026-16
2015, at approximately 5:00 a.m., Police Chief Richard Wojciechowsky of
the Pottsville Bureau of Police was called to a crime scene at South 12th
Street in Pottsville. Upon arriving, he discovered that John Brock’s body had
been found in the street. Police recovered a pair of white gloves from the
alley behind Mr. Brock’s home, a wallet from Mr. Brock’s dresser, and a bank
card on the bedroom floor. Chief Wojciechowsky received information
indicating that Appellee and Shavinskin Thomas were persons of interest in
the homicide and that they had previously been involved in a crime at Mr.
Brock’s home. Two officers reported seeing Appellee and Mr. Thomas
walking near the crime scene at approximately 6:00 a.m. that morning.
At 11:00 a.m., Chief Wojciechowsky observed Appellee and Mr.
Thomas near the crime scene. He asked Appellee what he was doing in the
area, and Appellee responded that he was checking what was going on.
Appellee claimed that on the preceding evening, he and Mr. Thomas walked
around the city together, stopping at an A-Plus store around 5:00 a.m. A
Pottsville police officer went to the store and reviewed security footage from
the relevant time. Still photographs were taken of the two customers
present in the store; however, neither was Appellee.
Around 5:00 p.m. that evening, Appellee’s mother consented to a
search of her home. Police recovered box cutters from Appellee’s bedroom,
aware that box cutters had been used in the murder. Police also recovered
a pair of white work gloves which were similar to gloves found in the alley
behind Mr. Brock’s home.
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On August 7, 2015, Appellee was arrested on two outstanding
summary offense warrants and brought to City Hall for questioning. Chief
Wojciechowsky advised Appellee of his Miranda3 rights, and Appellee
acknowledged he understood them. Chief Wojciechowsky questioned
Appellee about his whereabouts on the night of the murder. At 1:25 p.m.,
Appellee informed Chief Wojciechowsky, “I don’t know, just, I’m done
talking. I don’t have nothing to talk about.” See TCO at 12.
Instead of taking this as a request to end the conversation, Chief
Wojciechowsky advised Appellee that he did not have to speak to police,
stating, “You don’t have to say anything, I told you that you could stop.”
However, Chief Wojciechowsky continued to ask questions, told Appellee
that he did not believe his story, and informed Appellee that police officers
had collected evidence from the crime scene for processing. At 1:36 p.m.,
police officers confiscated Appellee’s shoes. Chief Wojciechowsky continued
to pepper Appellee with questions.
At 1:52 p.m., Appellee requested that Chief Wojciechowsky stop the
video tape. At 1:57 p.m., Chief Wojciechowsky turned the videotape back
on and asked Appellee whether he had been threatened, yelled at, or
promised anything while the tape was off. Appellee responded that he had
not. Appellee then requested to speak to a representative of the District
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3
Miranda v. Arizona, 86 S. Ct. 1602 (1966).
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Attorney’s Office in exchange for a potential “deal.” The video stopped again
at 2:00 p.m., and the prosecutor arrived at 2:23 p.m., at which time the
video was turned on again.4 Appellee was again advised of his Miranda
rights by Chief Wojciechowsky.
Subsequently, Appellee gave a detailed statement to police, confessing
his involvement in the murder. As a result of Appellee’s statement, police
obtained video surveillance of Appellee accessing an ATM on the morning of
the homicide. Police also recovered from a storm drain the following
evidence: the victim’s credit card, hat, shirt, and sunglasses.
Appellee was charged with murder. Prior to trial, he filed an omnibus
pre-trial motion, seeking to suppress statements made to police after he
stated that he “[did not] want to talk” and was “done talking.” The motion
also sought to suppress evidence recovered as a result of Appellee’s
statements, including Appellee’s shoes.
Hearings were held January 12, 2016, and January 13, 2016. Chief
Wojciechowsky testified that he did not interpret Appellee’s statements as an
immediate invocation of the right to remain silent and wanted to “be
absolutely certain that [Appellee] was still aware of that right.” Detective
Kirk Becker testified that if the credit card had not been recovered from the
____________________________________________
4
The record is silent as to what occurred during that time. In contrast to
the earlier break, Chief Wojciechowsky did not question Appellee about the
intervening time upon restarting the tape at 2:23 p.m.
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storm drain, police could have obtained the ATM footage regardless through
credit checks and by subpoenaing Mr. Brock’s account access records.
On April 5, 2016, the court issued an order granting Appellee’s motion
in part. The court suppressed statements made by Appellee following his
assertion that he was done talking; Appellee’s shoes and any evidence
obtained from them; and the items recovered from the storm drain. The
court admitted all statements made prior to Appellee’s assertion that he was
done talking and surveillance video from the ATM machine.
The Commonwealth timely appealed and filed a court-ordered
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The
suppression court issued a responsive opinion adopting its April 5, 2016
opinion and order.
On appeal, the Commonwealth raises three issues for our review:
1. Did the suppression court err in finding that the Appellee
made a clear and unambiguous assertion of his right to remain
silent during police questioning?
2. Did the suppression court err in finding that the police violated
Appellee[’s] Fifth Amendment privilege against self-incrimination
and thus err in suppressing incriminating statements made to
police?
3. Did the suppression court err in suppressing certain physical
evidence (credit card, hat, shirt, and sunglasses) as fruit of the
poisonous tree?
Commonwealth’s Brief at 5.
When the Commonwealth appeals from a suppression order:
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we follow a clearly defined standard of review and 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. Miller, 56 A.3d 1276, 1278–79 (Pa. Super. 2012).
The Commonwealth first claims that the trial court erred in
suppressing Appellee’s statement because his invocation of his right to
remain silent was not clear and unambiguous. See Commonwealth’s Brief at
9. The Commonwealth argues that the statement was wavering, qualified,
and left police unsure as to Appellee’s intentions. Id.
A suspect is entitled to Miranda warnings prior to a custodial
interrogation. Commonwealth v. Boyer, 962 A.2d 1213, 1216 (Pa. Super.
2008) (noting that defendant’s statement “I don’t want to talk to you” was
an invocation of his Miranda rights). If a suspect “indicates, in any manner,
at any time prior to or during questioning, that he wishes to remain silent,
the interrogation must cease.” Commonwealth v. Henry, 599 A.2d 132,
1323 (Pa. Super. 1991) (internal citations omitted). However, the United
States Supreme Court has held that the invocation of the right to remain
silent or request an attorney must be affirmative, clear, and unambiguous.
See Berghuis v. Thompkins, 130 S. Ct. 2250, 2259-60 (2010); see also
Commonwealth v. Briggs, 12 A.3d 291, 318 n.27 (Pa. 2011) (noting that
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the Supreme Court has held that an individual in police custody subject to
interrogation must affirmatively invoke his or her Miranda rights).
In Berghuis, the defendant was silent during the first two hours and
forty-five minutes of a three-hour interrogation. Berghuis, 130 S. Ct. at
2256-57. He did not state that he wished to remain silent, that he did not
want to talk to the police, or that he wanted an attorney. Id. However,
towards the end of the interrogation, a police officer asked defendant
whether he prayed to God to forgive him for the shooting, to which the
defendant responded, “Yes.” Berghuis, 130 S. Ct. at 2257. The defendant
refused to sign a written confession and argued that his statement to
detectives should have been suppressed because he had invoked his right to
remain silent. Id. The United States Supreme Court affirmed the denial of
defendant’s motion to suppress, holding that the invocation of the right to
remain silent must be affirmative, clear, and unambiguous. Berghuis, 130
S. Ct. at 2260. The defendant’s silence, without an affirmative invocation or
statement, did not suffice. Id.
Pennsylvania courts have addressed Berghuis in passing but have not
directly discussed its applicability. For example, in Briggs, the defendant
argued that the trial court should have suppressed his spontaneous
confession to police and averred he had not been given his Miranda
warnings. Briggs, 12 A.3d at 318-19. In a footnote, the Court referenced
the Berghuis holding and acknowledged the defendant’s request to speak to
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a lawyer was an invocation of those rights. Id. at n.27. However, the Court
concluded that the conversation with police officers had not constituted an
interrogation and accordingly, Miranda protections did not attach. Id. at
323-24. Similarly, Commonwealth v. Guess also cites Berghuis in a
footnote. See Commonwealth v. Guess, 53 A.3d 895, 901-02, n.15 (Pa.
Super. 2012). There, the defendant argued that evidence should be
suppressed because he was unlawfully detained prior to his arrest. Id.
Although the defendant did not challenge statements made to the police
during a mere encounter, the Court observed in a footnote that silence by
the accused does not provide an unambiguous signal to the police that the
accused has invoked Fifth Amendment protections. Guess, 53 A.3d at 902
n.15.
The Commonwealth also directs our attention to Commonwealth v.
Champney, 65 A.3d 386 (Pa. 2013) (plurality). In that case, an evenly split
Pennsylvania Supreme Court affirmed the trial court’s grant of a suppression
motion. Id. The defendant argued that the words, “I think I want to talk to
[my attorney] before I make a statement,” were a clear and unambiguous
invocation of his right to counsel. See Champney, 65 A.3d at 387-89. The
opinion in support of affirmance agreed, finding that the phrase, “I think,”
was colloquially used to express beliefs and did not render the request
ambiguous. Id. (citing United States v. Davis, 114 S. Ct. 2350 (1994)).
The opinion in support of reversal contended that Davis was inapposite as,
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in that case, the defendant had clarified that he did not really want an
attorney, and the Davis Court had merely deferred to the lower court’s
finding of ambiguity. See Champney, 65 A.3d at 400. The opinion in
support of reversal contended that Berghuis controlled and the defendant’s
statement was not unequivocal. Id.
Here, there is no dispute that Appellee was advised of his Miranda
rights at the outset of questioning. The question is whether or not his
statement, “I don’t know, just, I’m done talking. I don’t have nothing to talk
about” was a clear and unequivocal invocation of his right to remain silent,
pursuant to Berghuis. We hold, under the facts of the case, that it was.
The Commonwealth relies upon a number of decisions from other state
and federal jurisdictions to support its contention that Appellee’s statement
was ambiguous.5 See United States v. Adams, 820 F.3d 317 (8th Cir.
2016) (finding that defendant’s statement “I don’t want to talk, man” was
ambiguous because of an immediate subsequent statement “I mean” was
meant to explain the previous statement); United States v. Havlik, 710
F.3d 818, 822 (8th Cir. 2013) (noting that statements “I guess you better
get me a lawyer” and “Could I call my lawyer” were ambiguous because a
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5
This Court “is not bound by the decisions of federal courts, other than the
United States Supreme Court, or the decisions of other states’ courts . . .
[H]owever, we may use them for guidance to the degree we find them
useful and not incompatible with Pennsylvania law.” Eckman v. Erie Ins.
Exch., 21 A.3d 1203, 1207 (Pa. Super. 2011) (internal citation omitted).
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reasonable officer would have understood the suspect to be asking about the
right to call a lawyer.”); Owen v. Florida Dept. of Corrections, 686 F.3d
1181, 1194 (11th Cir. 2012) (finding that defendant’s statements “I’d rather
not talk about it” and “I don’t want to talk about it” in response to specific
questions were ambiguous where defendant continued to speak to police);
State v. Cummings, 850 N.W.2d 915 (Wis. 2014) (discussing the
difference between “I don’t want to talk about this” and “I don’t know
nothing about this”). As will be discussed below, none of these decisions are
binding precedent on this Court, nor do they implicate similar statements or
situations to the instant case.6
For example, the Havlik Court found the defendant’s statement, “I
guess I need to get [a lawyer],” insufficient to trigger the obligation to cease
questioning, because a reasonable police officer could have understood the
suspect to be inquiring whether he had the right to call a lawyer. See
____________________________________________
6
In contrast, the Commonwealth also cites a number of cases as examples
of clear and unequivocal statements. We would note that they are more in
line with Appellee’s statement than with the previous examples. See
Boyer, 962 A.2d at 1218 (holding that “I don’t want to talk to you” was an
invocation of the right to remain silent); see also Garcia v. Long, 808 F.3d
771 (9th Cir. 2015) (finding that “no” in response to question “do you wish
to talk to me” was a clear assertion of Miranda rights); United States v.
Lee, 413 F.3d 622 (7th Cir. 2005) (finding clear assertion of right to counsel
where defendant asked “Can I have a lawyer?”); Smith v. Illinois, 105 S.
Ct. 490, 495 (1984) (holding that an accused’s post-request responses to
further interrogation may not be used to cast retrospective doubt on the
clarity of the initial request itself).
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Havlik, 710 F.3d at 821. Here, Appellee made a clear statement that he did
not wish to talk anymore. The Owen court found that defendants’ two
statements, “I’d rather not talk about it,” were made thirty minutes apart, in
responses to questions about very specific details and were not indications
that the defendant wished to stop talking, but did not want to provide details
on discrete issues, though the defendant was otherwise willing to talk and
continued talking after his first request. Owen, 686 F.3d at 1193-94. Here,
Appellee made the request in response to general questioning and indicated
his desire to cease speaking to Chief Wojciechowsky. That request was not
honored. Finally, Appellee cites to State v. Cummings, which noted that
the statement, “I don’t want to talk about this,” indicated a desire to cut off
questioning while “I don’t know nothing about this” was an exculpatory
statement proclaiming innocence, which the Cummings court found
incompatible with a desire to cut off questioning. Cummings, 850 N.W.2d
at 928. In that case, the defendant made both statements alternately while
continuing to respond to police questioning, unlike the instant case.
The Commonwealth takes issue with every part of Appellee’s
statement, including the words, “I don’t know,” “I’m done talking,” and “I
don’t have anything to talk about.” See Commonwealth’s Brief at 10-18.
The Commonwealth argues that the statement was not “clean and clear” and
suggests that Appellee should have said solely “I don’t want to talk to you.”
Id. at 13. This suggests a bright line rule that does not take into account
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the surrounding circumstances of the case, nor the entire context of
Appellee’s statement. Although ineloquently phrased, Appellee’s statements
were not qualified. They were not ambiguous. They were not equivocal. In
response to continued questioning, Appellee stated, “I don’t know, just, I’m
done talking. I don’t have nothing to talk about.” See TCO at 12. This was
the sort of statement that would lead a reasonable police officer, in those
circumstances, to understand the statement to be a request to remain silent.
See, e.g., Champney, 65 A.3d at 387.
We decline to adopt the rigid, bright line rule for invocation suggested
by the Commonwealth. Accordingly, we conclude that Appellee invoked his
right to remain silent and the suppression court did not err in finding that he
had made a clear and unambiguous invocation. See Berghuis, 130 S. Ct.
at 2260.
Next, the Commonwealth claims that the suppression court erred in
finding that police had violated Appellee’s Fifth Amendment privilege against
self-incrimination. See Commonwealth’s Brief at 9. The Commonwealth
contends that Appellee made a conscious and knowing decision to confess,
and that his confession was not coerced. Id.
While Miranda protections prohibit the continued interrogation of an
interviewee in custody once he has invoked his right to remain silent, further
interrogation does not constitute a per se violation of that right. See
Commonwealth v. Bess, 789 A.2d 757, 762 (Pa. Super. 2002); see also
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Commonwealth v. Russell, 938 A.2d 1082, 1090 (Pa. Super. 2007). A
suppression court reviewing a statement made after the initial invocation of
the right to remain silent must consider:
[t]he circumstances attending the defendant’s invocation of his
or her right to silence, as well as the circumstances attending
any further attempt at questioning. Hence, the test should ask
whether the official purpose of resuming questioning was to
entice the arrestee to abandon his right to remain silent, or
simply to find out whether he or she had a change of mind. Only
then can it be concluded whether, in fact, the defendant’s right
to cut off questioning was scrupulously honored.
Henry, 599 A.2d at 1325.
Henry adopted the requirement that police “scrupulously honor” a
defendant’s request from Michigan v. Mosley, 96 S. Ct. 321 (1975), which
held that law enforcement officials must respect a person’s exercise of the
option to terminate questioning in order to counteract the coercive pressure
of the custodial setting. Mosley, 96 S. Ct. at 327 (finding that Mosley’s
right to cut off questioning was fully respected where police officers
immediately ceased interrogation and did not try to resume questioning or
persuade Mosley to reconsider his position). The analysis regarding whether
police scrupulously honored defendant’s request focuses on:
(1) whether the defendant was advised of her Miranda rights
before both interrogations; (2) whether the officer conducting
the first interrogation immediately ceased the questioning when
the defendant expressed his desire to remain silent; and (3)
whether the second interrogation occurred after a significant
time lapse, and whether it was conducted in another location by
another officer.
Russell, 938 A.2d at 1090-91.
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It is the Commonwealth’s burden to establish that a defendant
knowingly and voluntarily waived his Miranda rights. Commonwealth v.
Cohen, 53 A.3d 882, 885–86 (Pa. Super. 2012). A defendant must
explicitly waive his Miranda rights by making an outward manifestation of
that waiver. Id. The determination of whether the waiver is valid depends
on:
(1) whether the waiver was voluntary, in the sense that
defendant’s choice was not the end result of governmental
pressure, and (2) whether the waiver was knowing and
intelligent, in the sense that it was made with full comprehension
of both the nature of the right being abandoned and the
consequence of that choice.
Commonwealth v. Mitchell, 902 A.2d 430, 451 (Pa. 2006).
If the totality of the circumstances reveals an uncoerced choice and
the requisite level of comprehension, a court may properly find that
Miranda rights have been waived. See, e.g., Commonwealth v. Martin,
101 A.3d 706, 724 (Pa. 2014);7 Commonwealth v. Cephas, 522 A.2d 63,
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7
Factors this Court may consider include: “the means and duration of the
interrogation, including whether questioning was repeated, prolonged, or
accompanied by physical abuse or threats thereof; the length of the
accused’s detention prior to the confession; whether the accused was
advised of his or her constitutional rights; the attitude exhibited by the
police during the interrogation; the accused's physical and psychological
state, including whether he or she was injured, ill, drugged, or intoxicated;
the conditions attendant to the detention, including whether the accused was
deprived of food, drink, sleep, or medical attention; the age, education, and
intelligence of the accused; the experience of the accused with law
enforcement and the criminal justice system; and any other factors which
(Footnote Continued Next Page)
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65 (Pa. Super. 1987) (finding that defendant’s schizophrenia rendered him
unable to knowingly and voluntarily waive his Miranda rights).
Finally, when considering a confession obtained after illegal conduct by
police officers, the relevant factors the court considers when determining
whether the original taint has been sufficiently purged include: (1) whether
Miranda warnings were again administered; (2) the “temporal proximity” of
the illegal police conduct to the confession; (3) the presence of intervening
circumstances or events; and (4) the purpose and flagrancy of the official
misconduct. See Commonwealth v. Burno, --- A.3d ---, *16 (Pa. 2017)
(citing Commonwealth v. Green, 581 A.2d 544, 550-51 (Pa. 1990)).
Further, the United States Supreme Court has held, in a companion
case to Miranda, that officials may not benefit from the coercive
interrogation of other officers, and that belated warnings are not sufficient to
protect a defendant. Westover v. United States, 86 S. Ct. 1602, 1639
(1966). In Westover, the defendant was arrested and questioned through
the night and into the next morning without being apprised of his right to
remain silent and his right to counsel. Westover, 86 S. Ct. at 1639. The
next day, Federal Bureau of Investigation (“FBI”) agents took over the
interrogation, gave the defendant advisory warnings, and proceeded to
_______________________
(Footnote Continued)
might serve to drain one's powers of resistance to suggestion and coercion.”
See Martin, 101 A.3d at 724-25.
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question him regarding crimes committed in another state. Id. After two
hours of questioning, the defendant confessed to those crimes. Id. The
Westover Court held that the confession obtained by the FBI was
inadmissible, as the interrogation leading to that statement followed on the
heels of prolonged questioning commenced in violation of the defendant’s
rights, and that the defendant was unable to knowingly and intelligently
waive his rights. Id. The belated warnings were “not sufficient” to protect
the defendant, and the FBI could not benefit from the pressure applied
during the previous interrogation. Id.
With these principles in mind, we first consider the period of time
between Appellee’s invocation of his right to remain silent and the point at
which he requested to speak to the district attorney. As noted above,
continued interrogation does not constitute a per se violation of a
defendant’s Fifth Amendment right. See Bess, 789 A.2d at 762. We
consider the circumstances surrounding the invocation, the interrogation,
and whether the police officers scrupulously honored that request. Henry,
599 A.2d at 1325. In the instant case, Appellee stated that he was “done
talking,” but Chief Wojciechowsky continued to interrogate him for another
thirty minutes. See TCO at 11-16. This interrogation included informing
Appellee that police officers were recovering evidence from the scene as well
as pressuring him to confess. Id. During this time period, Appellee’s shoes
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were taken from him so that evidence could be gathered from them, further
heightening the coercive nature of this continued interaction. Id.
From these circumstances, we cannot conclude that police
scrupulously honored Appellee’s request to remain silent. Henry, 599 A.2d
at 1325. Further, there was no pause in the interrogation; it continued in
the same location, by the same police officer. Russell, 938 A.2d at 1091.
Accordingly, all statements made by Appellee and evidence recovered from
Appellee during this time period were properly suppressed.
However, the Commonwealth argues that Appellee’s subsequent
inculpatory statement should not be suppressed because his Fifth
Amendment rights were not violated. See Commonwealth’s Brief at 9. The
Commonwealth asserts that because Appellee was read his Miranda rights
prior to speaking to the district attorney, he voluntarily waived them, curing
the taint of the previous illegal interrogation. Id. Appellee disputes this
assertion, suggesting that the interview conducted by Chief Wojciechowsky
was overly coercive and that any waiver made by Appellee was
presumptively invalid as a result. See Appellee’s Brief at 15-25.
Accordingly, considering the totality of the circumstances, we must also
determine whether Appellee’s waiver was valid. Martin, 101 A.3d at 724-
25; Green, 581 A.2d at 51.
First, we note the illegal conduct of the police. As discussed, supra,
Appellee invoked his right to remain silent, and this right was not
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scrupulously honored by police. See Henry, 599 A.2d at 1325; Russell,
938 A.2d at 1090-91. To the contrary, Chief Wojciechowsky continued to
pepper Appellee with accusations and questions, kept up without pause.
See TCO at 11-15 (continued questioning focused on evidence recovered
from the crime scene and Appellee’s mother’s home; Chief Wojciechowsky’s
questioning was focused on obtaining a confession from Appellee by telling
him that if he was truthful, people would want to help him).
Next, we note the timing of Appellee’s interrogation. The interrogation
began at approximately 1:05 p.m. See TCO at 7. Appellee invoked his right
to remain silent twenty minutes later. See TCO at 12. Chief Wojciechowsky
continued to interrogate him for approximately thirty minutes prior to
Appellee’s request to speak to the district attorney. See TCO at 12-15.
Chief Wojchiechowsky then turned off the camera for twenty minutes until
the prosecutor arrived. See TCO at 17. In total, only twenty minutes
passed between the illegal conduct and the confession, and as noted above,
the record is silent as to what occurred during that time.
Thus, due to the coercive nature of the circumstances and the impact
of the continuous period of questioning, Appellee did not knowingly and
voluntarily waive his Miranda rights. See Westover, 86 S. Ct. at 1639
(noting that despite warnings given at the outset of a continued interview,
from the defendant’s point of view, warnings were given at the end of the
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interrogation process). Accordingly, the suppression court properly ruled
that Appellee’s statement was inadmissible.
Finally, the Commonwealth argues that the suppression court erred in
suppressing physical evidence obtained as a result of Appellee’s confession
as fruit of the poisonous tree. See Commonwealth’s Brief at 5. The
Commonwealth avers that a violation of Appellee’s Fifth Amendment right is
not the same as a violation of Miranda. Id. at 24. Accordingly, the
Commonwealth argues that non-testimonial evidence derived from the
statement is still admissible. Id. at 24-26.
“The ‘fruit of the poisonous tree’ doctrine excludes evidence obtained
from, or acquired as a consequence of, lawless official acts.”
Commonwealth v. Brown, 700 A.2d 1310, 1318 (Pa. Super. 1997). Such
an argument requires an antecedent illegality. See Commonwealth v.
Johnson, 68 A.3d 930, 946 (Pa. Super. 2013); see also Commonwealth
v. Abbas, 852 A.2d 606, 610 (Pa. Super. 2004). Further,
[w]e need not hold that all evidence is “fruit of the poisonous
tree” simply because it would not have come to light but for the
illegal actions of the police. Rather, the more apt question in
such a case is whether, granting establishment of the primary
illegality, the evidence to which instant objection is made has
been come at by exploitation of that illegality or instead by
means sufficiently distinguishable to be purged of the primary
taint.
Commonwealth v. Loughnane, 128 A.3d 806, 815 (Pa. Super. 2015)
(citation omitted).
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As discussed above, Appellee’s inculpatory statements were not
voluntarily made and were properly suppressed. Accordingly, evidence
obtained as a result of the statements, unless from a means sufficiently
distinguishable to be purged of the primary taint, was properly suppressed.
Loughnane, 128 A.3d at 815. The suppression court held, based on the
record, that the Commonwealth had not provided sufficient grounds to
determine how the evidence at issue, including Appellee’s shoes and various
items recovered from a storm drain near the victim’s home, would have
been found absent Appellee’s statement. We see no error in this conclusion
and, accordingly, affirm. Miller, 56 A.3d at 1278–79.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2017
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