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COMMONWEALTH PENNSYLVANIA v. ALLAN BENJAMIN (09/18/85)

filed: September 18, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
ALLAN BENJAMIN



Appeal from the Order of October 2, 1984, in the Court of Common Pleas of Lackawanna County, Criminal Division, at No. 83 CR. 852.

COUNSEL

Michael J. Barrasse, Assistant District Attorney, Scranton, for Commonwealth, appellant.

William R. Lee, Scranton, for appellee.

Cavanaugh, Cirillo and Hester, JJ. Cavanaugh, J., files a dissenting opinion.

Author: Hester

[ 346 Pa. Super. Page 119]

This Commonwealth appeal is from a pre-trial order granting appellee's motion to suppress. The pre-trial order suppressed all statements made by appellee on November 21, 1983, while he was at the Pennsylvania State Police Headquarters in Dunmore, Lackawanna County, Pennsylvania.

Prior to reviewing the suppression order, we must determine whether it is appealable. In Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), our Supreme Court held that the Commonwealth's appeal from a suppression order was proper as long as the Commonwealth certified in good faith that the order either "terminates" or "substantially handicaps" the prosecution. The good faith certification is a precaution to meritless appeals designed solely for delay. It is no longer necessary for this Court to make an independent determination from the record whether the suppression order "terminates" or "substantially handicaps" the prosecution. See Commonwealth v. Lapia, 311 Pa. Super. 264, 457 A.2d 877 (1983), for the former rule which required an independent review of the record to determine the appealability of suppression orders.

The Commonwealth has certified that the suppression of appellee's statements terminates or substantially handicaps the prosecution. Accordingly, the suppression order is appealable.

In order to review the propriety of the suppression, we must consider the pertinent facts. On November 21, 1983,

[ 346 Pa. Super. Page 120]

    the Scranton Police Department arranged with Corporal Pasquale Raico of the Pennsylvania State Police to administer a polygraph examination to appellee concerning the May, 1977 murder of a man in Nay Aug Park, Scranton. Appellee consented to the polygraph, and he was accompanied by counsel, Richard Borthwick, to the examination.

With Borthwick present, Raico commenced the preliminary stage of the polygraph examination at 11:00 A.M. During this stage, Raico instructed appellee that the actual examination was a two-hour process and that if it interfered with his plans, appellee was welcome to use the telephone to make rearrangements. Appellee declined the offer.

Raico proceeded to describe how the polygraph machine functioned, what parts would be connected to appellee, whether he would have sensation and what impulses were transmitted to the charts. Raico also reviewed every question with appellee prior to the actual examination, giving appellee an opportunity to formulate his answers and to participate in revising any objectionable questions.

Having explained the test procedure, and with counsel still present, Raico read Miranda warnings to appellee and obtained a written waiver of his Miranda rights. The waiver form consisted of Miranda rights, a waiver of those rights and an acknowledgement that the waiver was voluntary, that the examination had been explained and that appellee understood the explanation of the proposed examination. Appellee's first signature then appeared. Below this signature, the form included a statement that the subject voluntarily submitted to the examination knowing that he could leave at any time. Appellee signed the form a second time below that statement. The waiver form was reviewed and signed in counsel's presence. Immediately thereafter, Raico presented background questions concerning appellee's age, height, weight, color of hair and eyes, health, education and whether he recently consumed drugs, alcohol or medication.

At that point, counsel was instructed to leave as Raico embarked on questions concerning the Nay Aug Park incident.

[ 346 Pa. Super. Page 121]

Raico testified that a good rapport between examiner and subject is most likely to occur when they are alone in the examination room. Raico considered this so important that the test would not have been administered had counsel refused to leave.

The actual polygraph examination concerned only the Nay Aug Park murder. Upon completion of the examination, Raico "ran the charts." That procedure consumed twenty minutes and involved the processing of impulses created by appellee's answers.

The charts were completed at 1:40 P.M. For the next forty minutes, Raico explained why the charts indicated that appellee was giving deceptive responses, and appellee was given an opportunity to explain the result which was alleged to be a deception. It was during this forty-minute period that appellee made the inculpatory statements.

Upon learning the results, appellee denied culpability. Thereafter, for three or four minutes, Raico reviewed the charts. Appellee then stated that he did not remember being in Nay Aug Park on May 11, 1977. Raico then reviewed the test results with appellee a final time over a fifteen-minute interval. Appellee requested immunity because he feared going to jail again. At that point, the private meeting between Raico and appellee terminated, and Attorney Borthwick was called to the room.

The lower court held that Corporal Raico conducted an interview following the actual polygraph examination. According to the lower court, the interview was not related to the test; it constituted an interrogation for which Miranda warnings should have been repeated. Finding the Miranda warnings issued at the pre-examination stage to be inadequate for ...


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