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decided: July 9, 1985.


Defendant's Direct Appeal from the Judgments of Sentence of the Philadelphia County Court of Common Pleas, Trial Division Criminal Section, Imposed on Information Nos. 542, 543, 546, 548, and 556, October Sessions, 1979. No. 80-3-776


Stanford Shmukler, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Gaele McLaughlin Barthold, Philadelphia, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Flaherty, J., files a concurring opinion. Nix, C.j., files a dissenting opinion, in which McDermott, J., joins.

Author: Papadakos

[ 508 Pa. Page 253]


This is a reargument of Commonwealth v. McGrath, 504 Pa. 103, 470 A.2d 487 (1983). In that case we held that David McGrath's inculpatory statement to his superior officer, a Marine Corps Captain, was inadmissible at McGrath's trial for murder, aggravated assault, and criminal conspiracy in Philadelphia, due to the failure of the Captain to give the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). On May 14, 1984, we granted reargument. For the reasons stated herein we again hold that McGrath's inculpatory statements should have been suppressed in his trial for murder in Philadelphia.

The facts underlying this appeal are as follows. On July 6, 1979, McGrath and a companion were apprehended by police after an automobile chase through the streets of Philadelphia. They were suspects in two separate shootings which had occurred at 3:47 a.m. and 6:45 a.m. on that day. The shootings involved the random selection and shooting of three black male pedestrians, of which one was killed and two were wounded by bullets fired from one or

[ 508 Pa. Page 254]

    more large caliber handguns. McGrath and a companion were taken into police custody shortly after 7:00 a.m. on the morning of the shootings after having been chased, lost, sighted and chased again by several police vehicles. Both men were released later the same day as there was insufficient evidence at that time to charge them with a crime.

Subsequently, McGrath enlisted in the United States Marine Corps. While he was undergoing basic training at Paris Island, South Carolina, on September 5, 1979, the Philadelphia police contacted Major Beavers of the Marine Corps at Paris Island and informed him that they had a warrant for the arrest of McGrath for homicide and other charges. The Philadelphia police and Major Beavers agreed that the warrant would be transmitted to the Buford County Sheriff's Department which would arrest McGrath and hold him in the county jail until Philadelphia police arrived.

As a result of the discussions between Marine Corps personnel and the Philadelphia Police, McGrath was ordered to report to his Series Commander, Lieutenant Macintyre (a "Series" consists of 245 to 296 recruits.) According to the testimony of McGrath, the person who gave him this order, Drill Instructor Sergeant McLearned, also informed him that he was wanted in Philadelphia for having "killed somebody or shot people," and that he would have to meet with his Series Commander, his Company Commander, and the legal department, and that he would then go to jail.

McGrath reported to Lieutenant Macintyre whose testimony was introduced at the suppression hearing by stipulation, as follows: that on the basis of correspondence he had received from the Legal Division on the base at Paris Island, he had interviewed Private McGrath and had advised him that he, Lieutenant Macintyre, had been contacted by the Legal Division concerning a fraudulent enlistment and that the specifics were that McGrath was wanted in Philadelphia on the basis of an outstanding warrant charging him with homicide and several other charges.

Immediately following this interview, McGrath was taken to the office of Captain Walter Gaskin, the Company Commanding

[ 508 Pa. Page 255]

Officer. (A Marine Corps "Company" consists of five "series"; thus Captain Gaskin commanded approximately 1300-1500 recruits.) Captain Gaskin testified that he ordered McGrath to report to his office in response to receipt of a memorandum from the battalion Legal Division concerning McGrath's "possible fraudulent enlistment." The memorandum mentioned a police record, but did not mention an outstanding warrant, and, accordingly, at the time he interviewed McGrath, he knew nothing of the warrant or the homicide charges against McGrath, even though Lieutenant Macintyre and other Marine Corps personnel did know of the warrant and the charges. The reason given for this discrepancy was that, being McGrath's immediate superior officer, Lieutenant Macintyre received more detailed information from the Legal Division.

At the interview, which Captain Gaskins thought concerned a routine fraudulent enlistment matter of which he would have to make a recommendation to the Battalion Commander as to whether McGrath should be retained in the Marine Corps or discharged, the Captain asked McGrath the following:

Q. Private McGrath you're in here because its been indicated via the Battalion legal office that you're some type of fraudulent enlistment. It can be of any variety of reasons. Could have past police record or it could be of child support or any number of matters or reasons why there is a fraudulent enlistment. I am here to help you out and of course refer my recommendation to the Battalion Commander concerning retention.

At this time I said you can tell me what it is about that you know of and maybe something you failed to tell the recruiter at the time of enlistment and if you want to, then I can help you based on the information you give me -- some advice and what tell the Battalion Commander concerning retention. Notes of Testimony of Suppression Hearing (N.T.S.H.) 533.

The Captain did not give McGrath either the Miranda warnings or warnings under Article 31(b) of the Uniform

[ 508 Pa. Page 256]

Code of Military Justice, 10 U.S.C. ยง 831,*fn1 both of which are required by military law.

In response to the Captain's questions, McGrath implicated himself in the Philadelphia shootings. The Captain and others present at the interview testified at McGrath's criminal trial concerning his inculpatory statements.

Captain Gaskin further testified that when McGrath first made his inculpatory statement, a Lieutenant Dykhuizen was present. After McGrath told his story, the essence of which was that he was present at the shootings but had not pulled the trigger, the Captain called in the Chief Drill Instructor, Master Sergeant Jones, and McGrath then repeated his story three or four times. The Captain, who found the story "phenomenal," stated: "I was concerned about what he had said and I asked him to say it again and then I would ask him specific parts about it. [He repeated] the actual whole story maybe twice but different parts of it three or four times." N.T.S.H. 543.

The Captain also testified that when McGrath entered his office pursuant to his order, McGrath stood at attention and could not speak unless spoken to. Other testimony indicated that at a later stage of the interview, McGrath stood "at ease" while repeating his statement. Although the Captain testified that when he gives an order, he expects to

[ 508 Pa. Page 257]

    be obeyed, he also testified that McGrath should have known that he did not have to answer the Captain's questions under the Uniform Code of Military Justice: "He can refuse. As a matter of fact, in this time I had no reason to offer him rights but I asked him if he wanted me to help him. He could have voluntarily explained to me what had occurred. If he'd have said he didn't, I'd have said very well." N.T.S.H. 547.

Captain Gaskin indicated that when McGrath left his office, under supervision by drill instructors, he was taken to a holding center to await transfer to the custody of civilian authorities (the Buford County Sheriff's Department). There were no specific orders given to McGrath at that time restricting his freedom of movement, but none were necessary because "from the time a recruit arrives until the time he leaves Paris Island he's under constant supervision. So there was someone with him at all times anyway." N.T.S.H. 557. The Captain also testified that he learned of the Philadelphia arrest warrants only after completing the interview with McGrath and that the memo concerning "possible fraudulent enlistment" had, in fact, been a "mistake." That is, the Captain later became aware that McGrath's matter was "not a fraudulent enlistment case at all but a warrant." N.T.S.H. 563.

McGrath's testimony was consistent with that of the Marine Corps witnesses. McGrath testified that after his initial encounter with the first drill instructor, at which time he was told that he was going to jail in Philadelphia because of a shooting, he was interviewed by Lieutenant Macintyre and two or three other drill instructors. One of the drill instructors read the charges to him and Lieutenant Macintyre questioned him about the charges. He was then taken to pack all of his belongings and was told that he was being sent to Philadelphia. Within two hours of being interviewed by the Lieutenant, after packing his belongings, McGrath was interviewed by Captain Gaskin. With respect to this interview, McGrath was asked at the suppression hearing, "Were you aware that you had the alternative of

[ 508 Pa. Page 258]

    not to explain these things to him?" McGrath answered: "No I didn't. I didn't understand it, you know, I had a right to say no to an officer." N.T.S.H. 575. McGrath also testified he believed that if he did not tell the Captain about the shooting incident he would go to jail for not obeying an order. When it was pointed out that Captain Gaskin's words were not an order, McGrath replied:

Well, as a Private, anything an officer says to you, it's -- I consider it -- I considered an order at the time. I have no social life, you know, with the officers or anything. So like, what they say to me is his word or is law to me on that island. N.T.S.H. 580.

Thus, the issue in this case is whether, under the circumstances surrounding McGrath's questioning, the admitted absence of Miranda warnings prior to his interview by his Commanding Officer precludes the admission at the criminal proceeding in the Court of Common Pleas of ...

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