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decided: November 24, 1986.


Appeal from the Order of the Superior Court entered February 13, 1985 at No. 665 Phila. 1984 Affirming the Judgment of Sentence of the Court of Common Pleas of Luzerne County entered February 7, 1984, at Nos. 1334, 1355, 1356, 1584, 1752-1766 of 1981. 341 Pa. Super. 616, 491 A.2d 919 (1985)


Al Flora, Jr., Asst. Public Defender, for appellant.

Robert J. Gillespie, Jr., Dist. Atty., Joseph C. Giebus, Wilkes-Barre, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.

Author: Nix

[ 513 Pa. Page 8]


We are here called upon to address appellant's contention that a request for removal of a prisoner from a holding facility for the purpose of transporting him to police headquarters for custodial interrogation is a "critical stage" under federal constitutional law*fn1 and should not be permitted without a prior counseled adversarial hearing. Appellant argues that the entitlement to the presence of counsel between his arraignment and preliminary hearing is dictated by fundamental fairness and therefore concludes from that premise that the presence of counsel must be mandated "at any 'bring up' order proceeding."*fn2 See Brief pg. 16.

Although appellant in his presentation to this Court by way of his brief and oral argument has not separated the Fifth and the Sixth Amendment contentions, for the sake of clarity in this opinion we will address the Fifth Amendment claim under section A and the Sixth Amendment claim under section B.*fn3

Appellant was found guilty, after a trial by jury, of twelve counts of Burglary, 18 Pa.C.S. § 3502, nine counts of

[ 513 Pa. Page 9]

Theft by Unlawful Taking or Disposition, 18 Pa.C.S. § 3921, and one count of Escape, 18 Pa.C.S. § 5121, the latter occurring during one of the occasions when he was in police custody pursuant to one of the orders presently the focus of this appeal. On the burglary charges he received concurrent sentences of five (5) to ten (10) years imprisonment followed by a seven (7) year consecutive term of probation for the escape charge. Upon appeal the Superior Court affirmed the judgments of sentence, 341 Pa. Super. 616, 491 A.2d 919 (1985).

These burglaries were committed between March through June 1981 in Luzerne County. On August 12, 1981, August 13, 1981, and August 17, 1981, appellant was removed from the Luzerne County Prison by police officials and interrogated during which periods appellant made incriminating statements and assisted the police in recovering some of the stolen articles.*fn4 This evidence was introduced against appellant at trial over objection. One of the reasons offered in suppression of the evidence was that the authorization for the removal of appellant from the detention facility was accomplished through an ex parte procedure, in which appellant had no input. The legitimacy of that practice is here being called into question.


Appellant in framing the issue seeks to combine the administrative procedure by which the defendant, who is in pretrial detention, is made available for custodial interrogation and the rights that attach upon the custodial interrogation itself. Unquestionably, custodial interrogation is indeed recognized as implicating the right to counsel to protect against self-incrimination under the Fifth Amendment. Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d

[ 513 Pa. Page 10182]

(1974); Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In each instance in this matter the right to counsel was recognized and Miranda warnings were given prior to the beginning of the questioning. In each instance the right to have counsel was waived. Miranda v. Arizona, supra. Such waivers are recognized as valid and subsequent admissions are admissible even though made without the benefit of the advice of counsel. Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986); Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985); North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). Since Miranda is recognized as affording the protection of the right to counsel during the custodial interrogation, the question here posed is whether some independent interest is involved because the "bring-up" procedure was employed to secure his presence. Appellant appears to argue that since the "bring-up" was used for this purpose that procedure became a "critical stage", thus requiring counsel to satisfy the Fifth Amendment mandate.*fn5

[ 513 Pa. Page 11]

The federal decisions remove any doubt that a valid waiver of the Miranda warning satisfies all of the Fifth Amendment right to counsel concerns. United States v. Poole, 794 F.2d 462 (9th Cir. 1986); United States v. McClure, 786 F.2d 1286 (5th Cir. 1986); United States v. Fouche, 776 F.2d 1398 (9th Cir. 1985); United States v. Porter, 764 F.2d 1 (1st Cir. 1985); United States v. Geittmann, 733 F.2d 1419 (10th Cir. 1984); United States v. Burgos, 720 F.2d 1520 (11th Cir. 1983); United States v. Mata-Abundiz, 717 F.2d 1277 (9th Cir. 1983); United States Page 11} v. Wilson, 690 F.2d 1267 (9th Cir. 1982); United States v. Surridge, 687 F.2d 250 (8th Cir. 1982); United States v. Booth, 669 F.2d 1231 (9th Cir. 1981); Moore v. Ballone, 658 F.2d 218 (4th Cir. 1981); United States v. Harris, 611 F.2d 170 (6th Cir. 1979); Cervantes v. Walker, 589 F.2d 424 (9th Cir. 1978). Here the warnings were given prior to each interrogation and the opportunity to have counsel present was knowingly and voluntarily waived. The fact that the "bring-up" was used to make appellant available for questioning does not alter the situation. As noted in Commonwealth v. Broaddus, 458 Pa. 261, 266, 342 A.2d 746, 749 (1974), the "bring-up" is merely an administrative process and adds nothing to the constitutional considerations raised in this argument.

We therefore conclude that the fact that an administrative procedure was employed to facilitate appellant's availability for custodial questioning does not in and of itself affect the character of the custodial questioning nor does it impact upon the rights to which the appellant was entitled during the custodial interrogation. Thus we are satisfied that there was a valid waiver of Miranda warnings in this case and no violation of the Fifth Amendment guarantees occurred.


The more difficult question is whether the Sixth Amendment right to counsel is implicated under this factual setting. The right to counsel under the Sixth Amendment made applicable to the States under the Fourteenth Amendment goes beyond protecting the defendant against self-incrimination during custodial interrogation. Counsel is charged also with the investigation of the charges, preparation of the defense, the designing of the strategy to be employed, as well as the effective representation at trial. The role of counsel as mandated by the Sixth Amendment was set forth in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932):

[ 513 Pa. Page 12]

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.

Id. at 68-69, 53 S.Ct. at 64.

The Supreme Court has expressly recognized that the counsel requirement under Miranda was designed to protect the Fifth Amendment privilege against self-incrimination rather than to vindicate the Sixth Amendment right to counsel. See United States v. Gouveia, 467 U.S. 180, 188, n. 5, 104 S.Ct. 2292, 2298, n. 5, 81 L.Ed.2d 146 (1984); Rhode Island v. Innis, 446 U.S. 291, 300 n. 4, 100 S.Ct. 1682, 1689 n. 4, 64 L.Ed.2d 297 (1980); Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972); Johnson v. New Jersey, 384 U.S. 719, 729-730, 86 S.Ct. 1772, 1778-79, 16 L.Ed.2d 882 (1966). It therefore follows that a waiver under Miranda will not necessarily waive the right of counsel guaranteed under the Sixth Amendment.

The threshold issue in this phase of the inquiry is whether the Sixth Amendment right to counsel attached under these facts. At the outset it must be noted that the fact that appellant was in custody throughout the period in question is not in and of itself determinative of this question. See, e.g., United States v. Gouveia, supra (inmates were not constitutionally entitled to the appointment of counsel while they were in administrative segregation). The triggering

[ 513 Pa. Page 13]

    event for Sixth Amendment rights to attach is the commencement of adversary judicial proceedings against the defendant. United States v. Gouveia, supra; Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981); Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970).

Here again appellant's emphasis upon the "bring-up" process is misplaced.*fn6 As previously stated the "bring-up" procedure is merely the administrative vehicle through which the movement of a prisoner is facilitated. It, in and of itself, cannot serve as the triggering factor to cause the right of counsel under the Sixth Amendment to attach. The process by which the movement is effectuated is a neutral fact; what is of constitutional significance is the purpose for which it is employed and when it is employed. Where one is taken for interrogation, without counsel, after the state has made a commitment to prosecute a Sixth Amendment concern arises. Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986); Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985); United States v. Gouveia, supra; United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980); Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424

[ 513 Pa. Page 14]

(1977); Massiah v. United States, supra. Thus we must focus upon whether the commitment to prosecute had been made prior to any of these periods of questioning.

Since the Supreme Court's decision in United States v. Wade, supra, we have in this jurisdiction treated the arrest as the triggering event which causes the Sixth Amendment right to attach. See Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974); Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970).

As we noted in Whiting, the policy behind the Wade rule applies with equal force to all confrontations conducted after arrest.

Commonwealth v. Richman, supra, 458 Pa. at 171, 320 A.2d at 353.

Here the complained of confrontations occurred on August 12, 1981, August 13, 1981, and August 17, 1981; appellant was not arrested for these charges until October 16, 1981. Thus the Sixth Amendment objection to these confrontations must fail.


Finally, we would be remiss in our responsibility if we did not address the alleged abuses of the administrative process. The appellant was initially brought up on August 12, 1981, for questioning and preliminary arraignment (relating to charges not here involved) by virtue of an order that had originally been obtained six weeks earlier. The record is unclear as to whether the court initiating that order approved in advance the change in the date for its execution and expanded the purpose to include questioning. The second order authorized appellant's removal to either the office of the District Attorney or the Kingston Borough Police Department for purposes of investigation. It is alleged that in violation of that order the police transported appellant to numerous homes within the county during a

[ 513 Pa. Page 15]

    period of seven hours. The final order was issued on August 17, 1981, and directed that appellant was to be questioned only upon permission of counsel. It is alleged that this limitation was also ignored.

The misuse of a court order is an affront to the court issuing that order. It is the responsibility of the court issuing process to guard against its abuse. The court possesses a panoply of remedies to assure that its orders are faithfully performed. In re Bernhart, 501 Pa. 428, 461 A.2d 1232 (1983); In re Martorano, 464 Pa. 66, 346 A.2d 22 (1975); Commonwealth v. Torrez, 335 Pa. Super. 612, 485 A.2d 63 (1984). If it is established that there was in fact a deliberate misuse of process in this or any other case, we expect the court issuing the order to take the appropriate remedial action.

Appellant urges us to promulgate a rule which would require counsel at the "bring-up" stage. It is asserted that this would provide an effective way to prevent such abuses in the future. In response, we note first that our rule-making function is normally not discharged through opinions. Second, in view of the available means to stop such a practice, there is no need to consider another possible remedy.

Accordingly, the order of the Superior Court sustaining the judgment of sentence is affirmed.


Accordingly, the order of the Superior Court sustaining the judgment of sentence is affirmed.

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