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decided: October 28, 1977.



F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Carolyn Engel Temin, Asst. Dist. Atty., Philadelphia, for appellant.

John Rogers Carroll, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., concurs in the result. Manderino, J., files a dissenting opinion. Jones, former C. J., did not participate in the decision of this case.

Author: Nix

[ 475 Pa. Page 99]


This is an appeal by the Commonwealth*fn1 from an Order of the Superior Court affirming the suppression of a statement sought to be introduced by the Commonwealth at the trial of Patrick McLaughlin. Appellee, McLaughlin, was indicted on charges of having defrauded the City of Philadelphia of more than $20,000.00 by submitting to the City Comptroller's Office forged and fraudulent reimbursement vouchers.

The Commonwealth's evidence at the hearing adduced the following facts. Appellee was employed by contract with the City of Philadelphia as a Federal Coordinator in Washington, D. C. The annual contract provided for a maximum of $5,000.00 in expenses to be reimbursed, in addition to a salary. On April 23, 1971, McLaughlin received an administrative

[ 475 Pa. Page 100]

    subpoena from the Office of the City Comptroller requesting that he explain certain allegedly falsified expense vouchers. Accordingly, McLaughlin appeared on April 29, 1971, was sworn and then questioned by Mr. Gilbert Stein, First Deputy Comptroller. A statement by McLaughlin was recorded by a stenographer.

The City Comptroller thereafter sent to the Philadelphia District Attorney a report of his investigation and, after further investigation, prosecution of McLaughlin for multiple fraud offenses was initiated, and indictments were issued. Appellee filed a motion to suppress the statement taken on April 29, 1971, and, after a hearing held on August 1, 1972, the motion was granted by the Philadelphia County Court of Common Pleas. The statement was held to be inadmissible on the grounds that 1) appellee did not "knowingly and willingly waive his constitutional rights," and 2) the statement was the product of "official compulsion" and "psychological coercion."

The Commonwealth filed a timely appeal to the Superior Court which entered an order quashing the appeal on the ground that the Commonwealth failed to show that it would be substantially handicapped by the absence of the suppressed evidence. This Court subsequently reversed and remanded the case back to the Superior Court for a determination on the merits of the motion. Commonwealth v. McLaughlin, an order of May 8, 1974. On remand, the Superior Court affirmed the suppression order on the ground that appellee had not been given Miranda*fn2 warnings prior to questioning by the Comptroller's Office, but specifically did not reach the question whether appellee's statement was "voluntary". This appeal followed.

Appellant challenges the suppression of appellee's statement. First they contend the statement should not have been suppressed because Miranda warnings are not required before questioning pursuant to a non-custodial administrative investigation.

[ 475 Pa. Page 101]

The Miranda decision established that a person must be warned of his Fifth Amendment rights before any "custodial interrogation" takes place, and that "custodial interrogation" means "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In Pennsylvania "custodial interrogation" has been interpreted to mean either questioning . . . 'while in custody or while the object of an investigation of which he is the focus, . . .' Commonwealth v. Feldman, 432 Pa. 428, 432-33, 248 A.2d 1, 3 (1968)." Commonwealth v. D'Nicuola, 448 Pa. 54, 57, 292 A.2d 333, 335 (1972) (Emphasis added).*fn3 Subsequent to these Pennsylvania cases, the United States Supreme Court in Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976) explained that the Miranda Court "specifically defined 'focus,' [of an investigation] for its purposes, as 'questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his action in any significant way.' 384 U.S. at 444, 86 S.Ct. [1602] at 1612, 16 L.Ed.2d at 706 (emphasis supplied)." Id. at 347, 96 S.Ct. at 1616. See also, Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). In the Beckwith case, the Supreme Court held that even though the focus of an investigation may have been on Beckwith at the time of the interview in that his tax liability was under scrutiny, he was not in the custodial situation described by the Miranda Court as the basis for its holding.

Although by our placing of "object of an investigation" in the disjunctive with the custodial requirement, it might appear as though the Pennsylvania interpretation of when Miranda warnings are required was broader than the United States Supreme Court's interpretation, an examination of the facts taken with the language of the Pennsylvania cases

[ 475 Pa. Page 102]

    indicates those cases may be interpreted as being harmonious with Beckwith. In each case recognizing the defendant as the focus of an investigation, there was also present a degree of "deprivation of liberty" which the Beckwith Court found Miranda to require. Commonwealth v. D'Nicuola, supra; Commonwealth v. Simala, 434 Pa. 219, 252 A.2d 575 (1969); Commonwealth v. Jefferson, 423 Pa. 541, 226 A.2d 765 (1967). In D'Nicuola, the police found D'Nicuola in his car with a revolver which had recently been fired. He was in a comatose condition as a result of an apparent suicide attempt by drug overdose. The police questioned him in a hospital where he was a patient and they had reason to believe D'Nicuola was acquainted with a person who the police knew was missing. In that case this Court said:

"Clearly, while appellant was confined to his hospital room his 'freedom of action' was restricted and this 'custody' coupled with the accusatory nature of the interview, mandates our conclusion that appellant's constitutional rights were violated when he was not given the Miranda warnings before the 'custodial interrogation' began." Id. 448 Pa. at 58, 292 A.2d at 336.

Similarly, in Jefferson, a statement was made by the accused in response to questions in a hospital by a policeman who knew there had been a stabbing in the hospital and that Jefferson, by her own admission, was the perpetrator. There we held that custodial interrogation is not limited to the police station so that Jefferson should have been given Miranda warnings before the questioning. Jefferson simply stands for the proposition that the critical factor is not the location of the interrogation but the degree of deprivation of liberty by police authorities. Likewise, in those cases where this Court declined to characterize the speaker as the focus of an investigation, there was no deprivation of liberty. Commonwealth v. Columbia Investment Corporation, 457 Pa. 353, 325 A.2d 289 (1974); Commonwealth v. Feldman, supra. Therefore, it is clear that under the Beckwith interpretation of Miranda, the instant appellee would not have been entitled to Miranda warnings since he was clearly not in "custody" during this interrogation.

[ 475 Pa. Page 103]

Even if we were to accept the view that our cases have delineated a broader protection for Pennsylvania pursuant to the mandates of its Constitution, we nevertheless under the facts of this case would reach the same result.*fn4 There have been no cases in this jurisdiction that have ever suggested that Miranda warnings were to be required in investigations which were non-criminal in nature. McLaughlin was only the object of an administrative investigation at the time of the interview on April 29, 1971. The purpose of the investigation pursuant to the Philadelphia Home Rule Charter, Section 6-402 was to determine whether McLaughlin was entitled to be reimbursed for his alleged expenses. It was conducted by a City official, not a law officer. He voluntarily appeared in response to an administrative subpoena which carried no sanction for failure to appear except non-payment of the questioned expense vouchers and he was free to leave the interview at all times. The fact that information obtained during the course of this interrogation ultimately resulted in the initiation of criminal prosecution does not change the character of the interrogation itself.

In more compelling situations than the present instance this Court has declined to find that the accused was entitled to Miranda warnings. In Feldman, we held that the initial interrogation of the accused at a police station was permissible although it was conducted at a time that police officials had reason to believe that on the night of the killing the accused had blood on her person and that she had stated that she was leaving for a "short vacation". Clearly the facts in Feldman would be more persuasive in affording the Miranda protection than the fact that information that might be

[ 475 Pa. Page 104]

    gleaned during the course of an administrative investigation might ultimately result in criminal prosecution.

An even closer parallel to the facts presented in this appeal can be found in our decision in Commonwealth v. Columbia Investment Corporation, supra. There we concluded that even though the functions of investigating grand juries include uncovering criminal activity and recommending criminal indictments in accordance with their evidence, witnesses before such grand juries are not in the status of accused persons. Id. 457 Pa. at 356, 325 A.2d 289.

The finding of the suppression court that the statement was involuntary must also be rejected.*fn5 Appellant properly points out that at no point during the suppression proceeding did the appellee raise the issue of involuntariness. In the appellee's application to suppress there was no allegation that the statement was involuntary.*fn6 Further, when the Assistant District Attorney asked the Deputy City Comptroller whether he threatened to break the contract that the appellee had with the City if he did not sit down and talk with him, appellee's attorney objected to the question as immaterial and stated there was no allegation of threats in the motion. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

The order of the Superior Court is reversed and the case is remanded to the trial court for further proceedings consistent herewith.

[ 475 Pa. Page 105]

MANDERINO, Justice, dissenting.

Appellee received an administrative subpoena from the Philadelphia City Comptroller to explain allegedly false expense vouchers. Appellee reported to the Comptroller's office where he was questioned and made an apparently incriminating statement. Since this investigatory proceeding was an important link in appellee's eventual prosecution, there is no question appellee could have refused to answer any questions which he reasonably believed might be used against him later. Kastigar v. United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 32 L.Ed.2d 212, 216-17 (1972); Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118, 1124 (1951). The majority now holds, however, that he was not entitled to have a lawyer present to apprise him of that right. I dissent.

Appellee was "in custody" for purposes of the warnings mandated by Miranda v. Arizona. Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d (1976), heavily relied on by the majority, is very different from this case. Whereas appellee was acting under the influence of a subpoena, and had to report to the Comptroller's Office, Beckwith was politely approached by IRS agents and questioned at his home. In both a real and practical sense, there was compulsion for appellee to appear before the Comptroller and answer questions; noncompliance meant certain nonpayment of the disputed vouchers and possible criminal indictments. This is in contrast to Beckwith, where the defendant's refusal to answer any questions had no such immediate and prejudicial consequences. More fundamentally, Beckwith was fully apprised of his Fifth Amendment rights, as well as his right to have any attorney present; that fact attenuated his claim that his statements should have been suppressed because he was not administered Miranda warnings. See 425 U.S. at 348-49, 96 S.Ct. 1612, 48

[ 475 Pa. Page 106]

L.Ed.2d at 9 (Marshall, J., concurring). Appellee here was not so apprised, and the practical pressure to respond to questions about his expense vouchers was no different than the psychological pressures described in Miranda.

I also cannot agree with the majority's statement that "[t]he fact that information obtained during the course of this interrogation ultimately resulted in the initiation of criminal prosecution does not change the character of the interrogation itself." That fact very much changed the character of the interrogation, because a reasonable belief by appellee that his disclosures would be so used would give him the right not to answer the questions. See, e. g., Kastigar v. United States, supra, 406 U.S. at 445, 92 S.Ct. 1653, 32 L.Ed.2d at 217.

Hence, he should have been warned of this Fifth Amendment right as required by Miranda. I dissent.

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