Appeal from the Judgment of Sentence in the court of Common Please of Dauphin County, Criminal No. 1755 CD 1981
Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.
Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
Spaeth, President Judge, and Cirillo and Cercone, JJ. Cirillo, J., files a dissenting opinion.
[ 341 Pa. Super. Page 32]
This is an appeal from judgment of sentence for criminal attempt (escape) and possession of implements of escape. Appellant's principal argument is that his trial counsel was ineffective. Appellant gave two inculpatory statements. Since it is undisputed that the first statement was obtained without informing appellant of his Miranda rights,*fn1 it is apparent that had trial counsel filed a motion to suppress the first statement, the motion would have had to have been granted. Appellant argues that had trial counsel filed a motion to suppress his second statement, that motion too would have had to have been granted because the second statement was tainted by the illegally obtained first statement. Since this argument has arguable merit, we remand for a hearing on whether trial counsel had any reasonable basis for not filing any motion to suppress.
[ 341 Pa. Super. Page 33]
On July 26, 1981, appellant, an inmate at the Dauphin County prison, was interrogated by John Hrabovsky, who was employed at the prison as an investigator, in connection with an attempted escape from the prison. Appellant, who was without counsel and was not informed of his Miranda rights, implicated himself by stating that when his girlfriend, Carolyn Duke, had visited him at the prison the day before, she brought him a wristband containing hacksaw blades; he also stated that his girlfriend did not know the contents of the wristband. N.T. 90.
After learning of appellant's statement, Kenneth Barbush, a criminal investigator for the Dauphin County district attorney's office, conducted an investigation, and on July 29, 1984, Mr. Barbush, with Mr. Hrabovsky present, interrogated appellant. N.T. 62. After informing appellant of his Miranda rights, Mr. Barbush told appellant that he was investigating Ms. Duke's role in the attempted escape, and that she might be prosecuted. N.T. 62-63. Appellant then reiterated his statement of July 26th, that Ms. Duke had brought him the wristband but did not know that it contained hacksaw blades. N.T. 63.
Trial counsel made no motion to suppress appellant's statement, and appellate counsel now argues that because of this failure, trial counsel was ineffective. To evaluate this argument we must determine whether the motion to suppress would have had arguable merit. If the motion would have had arguable merit, then we must remand for a hearing on whether counsel's decision not to file the motion had any reasonable basis designed to effectuate appellant's interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).
Appellant argues that had a motion to suppress been filed, the first statement would have been suppressed because "[i]t is clear [from the testimony of Mr. Hrabovsky himself] that appellant was questioned . . . without first being given his Miranda warnings." Brief for Appellant at 15. And next, appellant argues that had a motion to
[ 341 Pa. Super. Page 34]
suppress been filed, the second statement would also have been suppressed, for either of two reasons: because it was rendered involuntary by the circumstances under which it was given, i.e., while appellant was in prison, and accompanied by the threat to prosecute his girlfriend, id. at 16-17; and because "although preceded by Miranda warnings [it] was never-the-less [ sic ] inadmissible as the product of the exploitation of the prior illegal statement", id. at 17-19.
The principles underlying appellant's argument are long-settled. Where an accused, like appellant, makes two inculpatory statements, the first without, and the second with, Miranda warnings, the Commonwealth must establish that the second statement was not the exploitation of the first. This means that the Commonwealth must establish that the second statement was obtained in circumstances sufficiently distinguishable from the circumstances in which the first statement was obtained to purge it of the first statement's taint. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Commonwealth v. Chacko, 500 Pa. 571, 459 A.2d 311 (1983); Commonwealth v. Marabel, 445 Pa. 435, 283 A.2d 285 (1971); Commonwealth v. Banks, 429 Pa. 53, 239 A.2d 416 (1968). To determine whether the second statement was purged of the first statement's taint, all of the circumstances in which the two statements were made must be examined. If that examination discloses that the Commonwealth has not sustained its burden of establishing that there was no taint, the second statement, as well as the first, must be suppressed. Commonwealth v. Marabel, supra, Commonwealth v. Bordner, 432 Pa. 405, 247 A.2d 612 (1968).
Commonwealth v. Marabel, supra, is illustrative of the examination that a court must make in determining whether the Commonwealth has established that a second statement was not tainted by an illegally obtained first statement. There the Supreme Court found that the Commonwealth had established no taint. The case is especially striking when compared ...