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COMMONWEALTH PENNSYLVANIA v. WILLIAM MARK CUNNINGHAM (02/28/77)

decided: February 28, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
WILLIAM MARK CUNNINGHAM, JR. APPELLANT (TWO CASES)



COUNSEL

Smith B. Gephart, Harrisburg, for appellant.

Marion E. MacIntyre, Deputy Dist. Atty., Gaylor E. Dissinges, Harrisburg, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Nix, JJ. Manderino, J., took no part in the consideration or decision of this case. Roberts, J., filed a dissenting opinion.

Author: Nix

[ 471 Pa. Page 580]

OPINION OF THE COURT

On May 15, 1974, appellant was convicted of first degree murder and burglary in connection with the killing of a young housewife in suburban Harrisburg in May of 1972. Post-trial motions were filed and denied and the appellant was sentenced to life imprisonment.

Appellant raises three major issues on appeal to this Court: 1) whether the suppression judge erred as a matter of law in ruling that the June 13, 1973 signed confession of appellant was admissible at trial despite allegations that it was obtained as a result of coercion; 2) whether the June 13, 1973 confession, if not the result of coercion, was tainted by prior allegedly illegally-obtained statements, more precisely statements given to police on May 24, 1973 and June 7, 1973; and 3) whether the trial judge erred in prohibiting defendant from introducing testimony concerning the use of the polygraph examination which was offered to show that coercive tactics were used in securing the statement of June 7, 1973.

[ 471 Pa. Page 581]

The testimony established that the victim was a 27-year-old housewife who was found stabbed to death at the entrance of the garage to her home. She had not been sexually molested and nothing was reported missing from the house. Despite an intensive police investigation it was not until approximately a year later that the first break-through came towards a solution of the case. On April 25, 1973, in the course of investigating individuals with a prior history of "violence, sexual motivation or surreptitious entry," police were at Susquehanna Township High School, located in the immediate vicinity of the scene of the crime, talking with friends and classmates of one Ronald Hoffman, one of the individuals with such a record of criminal activity. One of Hoffman's associates who was interviewed was the appellant, William Cunningham, a 17-year-old Special Education student in the 11th grade.

On April 25, 1973, and again on May 24, 1973, appellant spoke with state policemen and discussed Hoffman's possible involvement in the crime. On June 7, 1973, with the knowledge and consent of his parents, appellant agreed to submit to a polygraph examination to enable the police officials to assess the truth of the allegations made by appellant against Hoffman. Following that examination, which was preceded by proper Miranda warnings and the signing by appellant of a polygraph waiver form, appellant first implicated himself by admitting that he was present at the home of the victim on the day in question, that he observed Ronald Hoffman stab the victim, but that his function was merely that of a lookout while Hoffman burglarized the home.

The next day appellant was arraigned on burglary charges and on June 9th Ronald Hoffman was arrested and charged with murder. On June 13, 1973, at 2:00 P.M., appellant was interviewed in the District Attorney's office for the expressed purpose of preparing the testimony that would be used against Hoffman at his preliminary

[ 471 Pa. Page 582]

    hearing scheduled for June 15th. The defendant was advised of his constitutional rights and told that he could be charged with murder. During the interview, after being confronted with certain inconsistencies in his prior statements, the appellant broke down and admitted that Hoffman had not been involved in the commission of the crime but that he, Cunningham, was the sole perpetrator. The interview was concluded at 4:15 P.M., after the District Attorney had suggested that the appellant's parents be called. Although appellant objected, his parents were then brought to the District Attorney's office. They employed an attorney who appeared and conferred with the appellant. At 6:30 P.M., a formal stenographically-transcribed confession was given in the presence of the appellant's attorney and it is this statement which was presented at trial and whose admissibility is now being questioned.

Prior to trial, defense counsel filed timely motions to suppress the statements of May 24, June 7 and June 13, 1973, on various grounds. The motions were heard and denied after a three-day suppression hearing.

It is axiomatic that a confession to be valid must be given free of any physical or psychological coercion which might interfere with one's will to resist. Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); Commonwealth v. Cockfield, 465 Pa. 415, 350 A.2d 833 (1976); Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975). Further, where the custodial interrogation involves the waiver of constitutional rights guaranteed under the Fifth and Sixth Amendments, the record must clearly demonstrate that the accused was fully apprised of his rights and knowingly made the decision to waive them. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Commonwealth v. Purvis, 458 Pa. 359, 326 A.2d 369 (1974); Commonwealth v. Simms, 455 Pa. 599, 317 A.2d

[ 471 Pa. Page 583265]

(1974); Commonwealth v. Riggins, 451 Pa. 519, 304 A.2d 473 (1973).

I. THE COUNSELED INTERVIEW OF JUNE 13, 1973

Appellant asserts that the signed statement which was introduced against him was involuntarily given and thus should have been suppressed. This statement was obtained during a counseled interview which took place during the evening hours of June 13, 1973. As has been previously noted, appellant first admitted complicity in the murder on June 7, 1973. In this statement he described his participation in the incident as a lookout and denied responsibility for the actual stabbing of the victim. After these admissions, he was charged only with the crime of burglary. As a result of the information supplied by appellant, Ronald Hoffman was arrested and charged with murder. It is also evident that the Commonwealth's case against Hoffman was dependent solely upon the testimony of appellant.

On June 13th, appellant was taken to the District Attorney's office at 2:00 P.M. for the purpose of preparing him to testify as a Commonwealth witness against Hoffman at the latter's preliminary hearing. It was during this discussion that appellant volunteered the information that he killed the victim and that Ronald Hoffman was not involved in the crime. Up to the time of this admission Hoffman, and not appellant, was the target defendant as to the slaying of Ms. Karen Dockray. When the police became aware of this change of posture in the case they insisted that appellant contact his parents.

When notified of the situation, the parents of appellant obtained counsel who met and conferred with appellant. Thereafter, a counseled interview took place during which the statement, which is now challenged, was prepared and signed.

[ 471 Pa. Page 584]

At the outset of our consideration of appellant's challenge to this statement it must be noted that since counsel was present and appellant was provided a full opportunity to confer with him, it is obvious that the Sixth Amendment right to counsel has been satisfied. The record also establishes that prior to the commencement of the counseled interview appellant had been apprised of his Fifth Amendment rights by police officials and his privately retained attorney. The facts of this case do not provide the slightest justification for a challenge to the waiver of the Fifth Amendment right as being a knowing one.*fn1

Finally, there is not a scintilla of evidence upon which to predicate a challenge to the voluntariness. At no point has appellant identified the presence of a single coercive influence during the interrogation in question. To the contrary, the presence of counsel at that time resulted from the police insistence that appellant contact his parents. Most significant is the fact that counsel was present and was available to detect and describe even the most subtle coercive or suggestive influences if they in fact had existed. No such testimony was offered. The significance of the presence of counsel during custodial interrogation was referred to at several places in

[ 471 Pa. Page 585]

    the opinion of the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966):

That counsel is present when statements are taken from an individual during interrogation obviously enhances the integrity of the fact-finding processes in court. The presence of an attorney, and the warnings delivered to the individual, enable the defendant under otherwise compelling circumstances to tell his story without fear, effectively, and in a way that eliminates the evils in the interrogation process.

Id. at 466, 86 S.Ct. at 1624.

At another point of the decision, the United States Supreme Court observed:

[The presence of counsel at the interrogation may serve several significant subsidiary functions as well. If the accused decides to talk to his interrogators, the assistance of counsel can mitigate the dangers of untrustworthiness. With a lawyer present the likelihood that the police will practice coercion is reduced, and if coercion is nevertheless exercised the lawyer can testify to it in court. The presence of a lawyer can also help to guarantee that the accused gives a fully accurate statement to the police and that the statement is rightly reported by the prosecution at trial.]

Id. at 470, 86 S.Ct. at 1626 (citation omitted).

We therefore conclude that the statement elicited during the June 13th counseled interview was knowingly made and free of any coercive influence.

II. "THE FRUIT OF THE POISONOUS TREE"

In view of our finding that the June 13th statement was free of any illegal or coercive influences affecting its admissibility at trial, the only conceivable taint to the statement must have occurred as a result of prior police

[ 471 Pa. Page 586]

    contact with the appellant.*fn2 Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In discussing the "fruit of the poisonous tree" concept, the United States Supreme Court has specifically limited the extent to which prior illegal police conduct must be considered responsible for the securing of incriminatory information.

"We 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.'"

Id. at 487-88, 83 S.Ct. at 417 (footnote omitted) (citations omitted)

The issue in this case then is whether a counseled interrogation, preceded by an adequate opportunity to confer with counsel, is the kind of attenuating circumstances which would dissipate any prior illegality and "purge the primary taint."*fn3

Before answering this question, it is crucial to understand how the United States Supreme Court has perceived the role of counsel in the protection of the constitutional rights of our citizens. The thrust of the majority of landmark cases in this area is the requirement that devices be created to assure the presence of counsel at critical stages in the criminal proceedings, or to assure

[ 471 Pa. Page 587]

    that the defendant, at least, understands his right to have counsel present, if he so chooses. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The common premise upon which all of these decisions are based is the belief that the presence of counsel is the most effective means of protecting the rights of one accused of crime.*fn4 As we have pointed out earlier, the role of counsel is that of a bulwark between his client and the hostile atmosphere of police interrogation. In discussing its decision in Escobedo v. Illinois, supra, and the function of counsel in securing Fifth Amendment privileges, the United States Supreme Court stated:

The denial of the defendant's request for his attorney thus undermined his ability to exercise the privilege -- to remain silent if he chose or to speak without any intimidation, blatant or subtle. The presence of counsel, in all the cases before us today, would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege. His presence would insure that statements made in the government-established atmosphere are not the product of compulsion.

Miranda v. Arizona, supra, 384 U.S. at 466, 86 S.Ct. at 1623 (emphasis added)

In view of the express language of Miranda, denominating counsel "an adequate protective device" the

[ 471 Pa. Page 588]

    concept of attenuation and dissipation of prior taint enunciated in Wong Sun, supra, if it has any application at all, must certainly be satisfied when a confession is made in the presence of, and under the direction of, counsel.

This Court has recently considered the effect of counsel as an insulating factor from prior police misconduct. In Commonwealth v. Cockfield, supra, the defendant had been taken into custody at 1:00 A.M. and was questioned intermittently until 12:05 A.M. on the succeeding day. During all of that time, appellant was without benefit of counsel. It was not until after the statement had been reduced to writing and he was in the process of signing it that counsel, retained by his family, first arrived. After a brief discussion, during which the attorney was made aware of the charges, counsel advised his client to continue signing the statement. This Court reasoned that, regardless of what police improprieties may have preceded counsel's arrival, the act of signing by appellant after the instruction was given by counsel, was a result of counsel's advice and not the product of any suggestion or coercion which may have occurred prior thereto.

It may very well be that had the appellant not conferred with counsel his confession would be considered involuntary under the totality of the circumstances test. The appellant, however, after conferring with counsel who had an opportunity to read the confession, reaffirmed, on the advice of counsel, his willingness to make the statement by signing the statement in the presence of counsel. Psychologically coercive influences may have affected the appellant prior to his consultation with counsel, but it cannot be said that the signing of the statement after consultation with counsel was a product of those factors. Counsel had not been subjected to those factors and after being informed of the statement advised his client to sign the statement. Appellant was obviously following the advice

[ 471 Pa. Page 589]

    of counsel. Had counsel advised otherwise any statement made or signed by the appellant prior to the appearance of counsel would present an entirely different question. Under these circumstances however, we cannot conclude that the prosecution failed to meet its burden of proving the voluntariness of the confession by a preponderance of the evidence. Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968). Id. 465 Pa. at 419, 350 A.2d at 835.*fn5

The facts presented in this appeal provide an even more compelling basis for adopting the Cockfield rationale. Even, as we have heretofore so indicated, assuming that there was some coercion exercised prior to the counseled interrogation of June 13th this appellant, unlike Cockfield, had an unhurried opportunity to confer with counsel prior to the interrogation in a location separate and apart from police officials. Further, the incriminatory statements resulting during the interview were elicited under circumstances which we have already found to be devoid of any type of coercive influence.

Under these circumstances we find that the counseled interrogation, preceded by ample opportunity to confer, was an occurrence, as a matter of law, so attenuated any prior illegalities that any taint was sufficiently purged.

III. THE COURT'S RULING ON THE ADMISSIBILITY OF THE EVIDENCE RELATING TO THE POLYGRAPH

In a somewhat related argument, appellant contends that the trial judge erred in prohibiting defendant from

[ 471 Pa. Page 590]

    introducing testimony concerning the use of the polygraph examination on June 7, 1973. Appellant argues that he proffered evidence at trial which would have established that the inculpatory statement was, in fact, coerced. It is asserted that the police deliberately misrepresented to appellant that he failed to pass the polygraph examination and that the results thereof indicated that he was the murderer or was, at least, present at the scene of the crime. It is argued that this misrepresentation caused the first admission of guilt. It is also suggested that since the warnings accompanying the polygraph indicated that the results could not and would not be used against him, this was inconsistent with the Miranda warnings that anything he said would be used against him, and thus confused appellant as to his rights.*fn6

The United States Supreme Court in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1968), announced that the United States Constitution requires a judicial determination, out of the hearing of a jury, of the admissibility at trial of an incriminatory statement. The purpose of the principle announced in Jackson, supra, was to prevent the jury from being advised of the existence of admissions or confessions before their voluntariness had first been judicially ascertained. The due process clause does not require, however, that a jury also pass on the question of voluntariness. Nonetheless, several jurisdictions, including Pennsylvania, have adopted the Massachusetts or "humane rule." which

[ 471 Pa. Page 591]

    permits the defendant a second opportunity to test the voluntariness of his statement. Under this approach, the defendant is permitted to introduce evidence at trial relating to the voluntariness of a challenged statement. When a jury is so confronted it may not assess the evidentiary weight to be given to the evidence until it first makes an independent finding that the confession was voluntarily made. Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976); Commonwealth v. Green, 464 Pa. 557, 347 A.2d 682 (1975); Commonwealth v. Camm, 443 Pa. 253, 277 A.2d 325 (1971); cert. denied, 405 U.S. 1046, 92 S.Ct. 1320, 31 L.Ed.2d 589 (1972); see also Rule 323(j) of the Pennsylvania Rules of Criminal Procedure.

The rights of a defendant in this area are, in our opinion, adequately protected by Rule 323 of the Pennsylvania Rules of Criminal Procedure, 19 P.S. (1975 Pamphlet), relating to the suppression of evidence. That rule is modelled after the so-called Massachusetts or "humane" rule approved by the Supreme Court of the United States in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). It provides that prior to trial, upon motion of the defendant to suppress evidence allegedly obtained unconstitutionally, a hearing shall be held to determine the admissibility of the challenged evidence. If the evidence is found to be ...


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