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decided: January 16, 1986.


No. 25 Eastern District Appeal Docket, 1984. Appeal from Judgment of Superior Court of Pennsylvania at No. 144, Philadelphia, 1981, dated July 15, 1983. 318 Pa. Super. Ct. 76, Nix, C.j., and Larsen,*fn* Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Papadakos, J., joins in this opinion. McDermott, J., joins in this opinion and files a concurring opinion. Flaherty, J., files a concurring opinion. Nix, C.j., files a concurring and dissenting opinion. Hutchinson, J., files a dissenting opinion. Zappala, J., files a dissenting opinion.

Author: Larsen

[ 509 Pa. Page 500]


We granted the Commonwealth's petition for allowance of appeal in this case to determine whether the Superior Court, 318 Pa. Super. 76, 464 A.2d 1236 (1983), erred in awarding appellee a new trial on the grounds that his confession should have been suppressed under the principle enunciated by the United States Supreme Court in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), reh'g. denied 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981). A majority of this Court agrees that Edwards does not require suppression of appellee's confession and we therefore reverse the Superior Court.

On August 5, 1976, the bodies of Mrs. Claire Kepner and her two young children were discovered in their home near Muncy in Lycoming County. All had been shot with a .32 caliber gun, and one of the children had been slashed with a knife.*fn1 These three homicides engendered an intensive investigation by the Pennsylvania State Police which culminated with the arrests of David Hubble, appellee, as well as his brother, Robert K. Hubble, and Milton Scarborough in the summer of 1977.

Appellee was first interviewed by state troopers regarding the homicides in April of 1977 and then on several occasions in July. The events underlying the suppression matters occurred principally on July 12th and 13th, and, briefly, took place as follows. On July 12, 1977, appellee and his wife voluntarily accompanied Troopers John S. Shimko and Chester J. Zaremba to the State Police Barracks

[ 509 Pa. Page 501]

    in Montoursville. At approximately 2:15 p.m., appellee gave a taped statement to the troopers which was not self-incriminating; this statement reiterated what appellee had previously informed the troopers regarding his brother's involvement in the homicides. Subsequently, in the process of leaving the barracks to be returned to their home, appellee and his wife indicated that they wished to speak with each other and were given an opportunity to do so. At approximately 5:45 p.m. appellee gave a second taped statement to the police, this time inculpating himself in the homicides. Appellee and his wife were then returned to their home.

The following day, appellee telephoned Trooper Shimko and informed him that everything he had told Shimko the previous day was a lie. However, upon voluntarily returning to the barracks with his wife on July 13th, appellee admitted that his July 12th confession had been truthful and he essentially reiterated that confession. Prior to each statement, and on several occasions previous to July 12th, appellee had been advised of his Miranda rights*fn2 and had signed a written waiver of those rights.

Appellee moved to suppress these statements of July 12-13, 1977 and a lengthy pretrial suppression hearing was conducted on November 11, 1977 before the Honorable John A. Walter in the Court of Common Pleas of Lebanon County.*fn3 The court denied appellee's motion to suppress and the case was tried before a jury. On November 25, 1977, the jury found appellee guilty of robbery, burglary, theft, conspiracy and three counts of murder of the second degree. Appellee filed post-verdict motions which were denied by the court en banc. In his opinion for the court en banc, Judge Walter stated:

Defendant first contends that the Court erred in failing to grant his motion to suppress incriminating statements

[ 509 Pa. Page 502]

    taken from him by the police. Specifically, defendant alleges that on July 12, 1977, he was subject to custodial interrogation calculated to evoke admissions without being adequately informed of his right to counsel and in the absence of an intelligent, informed waiver of such right.


We must first determine whether or not defendant was subject to custodial interrogation on July 12, 1977. The test for determining whether a person is in custody for Miranda purposes is whether he ". . . is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation . . . ." Commonwealth v. Romberger, 454 Pa. 279, 283, 312 A.2d 353, 355 (1973). (footnote omitted)

Slip opinion of court en banc at 1-2.

Because appellee had been subjected to a polygraph examination and to intermittent questioning over an eight hour period by Pennsylvania State Police officers at the police barracks on July 12, 1977, the court en banc concluded that appellee had been in custody. That court cited and discussed Commonwealth v. Brown, 473 Pa. 562, 375 A.2d 1260 (1977) to support its view that a reasonable person in appellee's situation would have "perceived the restraint of his freedom." Id.

Having determined that appellee had been in custody, the court then examined the nature of the questions and statements posed to him by various state troopers, determined that appellee had been "subject to police conduct calculated to or likely to evoke admissions," and held that appellee had been subject to interrogation. Id. at 3-5, citing Commonwealth v. Simala, 434 Pa. 291, 252 A.2d 575 (1969) and Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974). Thus the court held that appellee had been subjected to "custodial interrogation" for Miranda purposes.

The court further found that appellee had been adequately advised of his Miranda rights, that he knowingly, voluntarily

[ 509 Pa. Page 503]

    and intelligently waived his right to remain silent and to have counsel present during questioning, and that, considering the "totality of the circumstances," his confession was the "product of a 'free and unconstrained choice.'" Id. at 5-9. Accordingly, the court en banc affirmed the denial of appellee's motion to suppress, and denied the remaining post-verdict motions as well. Appellee appealed that denial to the Superior Court, which reversed and remanded for a new trial.

Initially, the Superior Court identified the appropriate standards of appellate review of a suppression court's rulings:

On review, our responsibility is 'to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.' Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975).

"If the suppression court has determined that the evidence is admissible, 'this Court will consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.' Commonwealth v. Kichline, 468 Pa. 264, 280, 361 A.2d 282, 290 (1976); see Culombe v. Connecticut, 367 U.S. 568, 604, 81 S.Ct. 1860, 1878, 6 L.Ed.2d 1037 (1961) (Opinion of Frankfurter, J.)" Commonwealth v. Brown, 473 Pa. 562, 566, 375 A.2d 1260, 1262 (1977).

318 Pa. Superior Ct. at 78, 464 A.2d at 1237. After examining the record pertaining to the events of July 12, 1977, the Superior Court affirmed the lower court's finding of custodial interrogation, stating:

[ 509 Pa. Page 504]

The suppression court held that [appellee] had been subjected to custodial interrogation on July 12, 1977 for Miranda purposes and that the investigating officers had engaged in interrogation and conduct calculated to or likely to evoke admissions. We agree with these legal conclusions. They are based upon the court's findings of fact and are amply supported by the record. See: Commonwealth Page 504} v. Chacko,, 500 Pa. 571, 578-82, 459 A.2d 311, 314-316 (1983) (numerous further citations omitted). The suppression court determined further that [appellee] had been adequately advised of his right to appointive counsel and that he had voluntarily and knowingly waived his right to such counsel. "We are bound by the court's findings of fact where, as here, they are supported by the record."

Id., 318 Pa. Superior Ct. at 83-4, 464 A.2d at 1240. (citations omitted).*fn4

Nevertheless, the Superior Court reversed and awarded appellee a new trial based upon its understanding that appellee's waiver of his right to counsel was ineffective as a matter of law under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), reh'g denied 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981), and that, therefore, his confession should have been suppressed. This holding is wrong.

In Edwards, the United States Supreme Court held that: when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation

[ 509 Pa. Page 505]

    even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

451 U.S. at 484-85, 101 S.Ct. at 1884-85 (footnote omitted).

In reliance upon Edwards, the Superior Court held, in the instant case:

The record in this case establishes beyond peradventure of a doubt that after appellant had clearly and unequivocally invoked his right to counsel and after he had attempted, unsuccessfully, to reach counsel by telephone, he was questioned further by Trooper Shimko. That he responded to such police-initiated questioning does not establish a waiver of the right to counsel previously invoked. "For a waiver . . . to be effective, the reversal of the defendant's position must have been initiated by him." (citation omitted) Here, it was not appellant who, after asserting his rights, indicated a desire to waive them without further activity on the part of the police. Instead, it was the police who initiated the chain of events which culminated in appellant's inculpatory statement. This was improper. Appellant had requested and was entitled to have counsel present. His statement given in response to police questioning and without counsel should have been suppressed.

318 Pa. Superior Ct. at 89, 464 A.2d at 1242-43.

The Superior Court's reliance on Edwards to suppress appellee's statement is misplaced because, despite that court's strong language to the contrary, the record does not establish that appellee "clearly and unequivocally invoked his right to counsel" so as to trigger Edwards' prophylactic

[ 509 Pa. Page 506]

    prohibition against all further police-initiated conversation.*fn5 As the United States Supreme Court recently stated:

This "rigid" prophylactic rule [enunciated in Edwards v. Arizona ] embodies two distinct inquiries. First, courts must determine whether the accused actually invoked his right to counsel. See, e.g., Edwards v. Arizona, supra, 451 U.S., at 484-485, 101 S.Ct., at 1884-1885 . . . . Second, if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked. Edwards v. Arizona, supra, 451 U.S., at 485, 486, n. 9, 101 S.Ct., at 1885, n. 9.

This case concerns the threshold inquiry: whether Smith invoked his right to counsel in the first instance. On occasion an accused's asserted request for counsel may be ambiguous or equivocal. As the majority and dissenting opinions below noted, courts have developed conflicting standards for determining the consequences of such ambiguities. (citations and footnote omitted). We need not resolve this conflict in the instant case, however, because the judgment of the Illinois Supreme Court must be reversed irrespective of which standard is applied.

The conflict among courts is addressed to the relevance of alleged ambiguities or equivocations that either (1) precede an accused's purported request for counsel, or (2) are part of the request itself. Neither circumstance pertains here, however.

Smith v. Illinois, 469 U.S. at , 105 S.Ct. at 492-93.

Because the Illinois Supreme Court had inferred ambiguity into Smith's otherwise unequivocal request for counsel from his responses to subsequent police questioning, the

[ 509 Pa. Page 507]

United States Supreme Court reversed, holding that "[w]here nothing about the request for counsel or the circumstances leading up to the request would render it ambiguous, all questioning must cease." Id. at , 105 S.Ct. at 494.

As in Smith, the instant case concerns the threshold inquiry, i.e. whether appellee had invoked his right to counsel. Unlike Smith, however, the nature of appellee's "request for counsel" and the circumstances preceding such "request" were indeed equivocal and demonstrate that, in fact, appellee did not invoke his right to counsel. We do not, therefore, cross the Edwards threshold.

Prior to July 12, 1977, the date on which appellee's challenged confession was rendered, appellee had been interviewed by state troopers on several occasions, and on each occasion expressly waived his Miranda rights, including his right to counsel. Appellee had also been previously acquainted with his Miranda rights due to three prior arrests and convictions following guilty plea proceedings which included full colloquies at which appellee indicated that he knew and understood his rights. On July 12th, appellee was again given Miranda warnings several times and again signed written waiver forms and demonstrated a willingness to talk freely. For most of the day and at all important times that day, appellee was accompanied and advised by his wife, Virginia Hubble.

At approximately 2:00 p.m., according to the testimony of Trooper Shimko, the following occurred. Trooper Shimko asked appellee if he would be willing to give a tape-recorded statement, at which point Virginia Hubble suggested to appellee, "I think you better get a lawyer." Appellee then stated, "I want a lawyer," followed by, "I want a public defender." At that point, Trooper Shimko responded:

Dave, you can call whoever you want to call. I do not believe that a public defender will come out to talk to you because you were not arrested. We are not accusing you of any crime. We're talking about what Bob had told you. This is all we're concerned with at this particular

[ 509 Pa. Page 508]

    time, but you are willing or you're able to call ...

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