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September 19, 1997


Appeal from the Order Dated June 13, 1996. In the court of Common Pleas of Butler County. Criminal Division, No. CA No. 179 of 1996.

Before: Cirillo, P.j.e., Johnson, J. and Cercone, P.j.e. Opinion by Cercone, P.j.e. Cirillo, P.j.e. files a Dissenting opinion.

The opinion of the court was delivered by: Cercone


This is a consolidated interlocutory appeal as of right from two pre-trial orders entered by the Court of Common Pleas of Butler County. See Pa. R.A.P., Rule 311 (d), 42 Pa. C.S.A. (Commonwealth Appeals in Criminal Cases). *fn1 We affirm and remand for trial.

The Pennsylvania State Police arrested appellee, Samuel Elton Brown, on January 17, 1996 for participating in the murder of Ada Darlene Lumley. Ms. Lumley was last seen in early January of 1967. On January 21, 1967, the victim's frozen body was discovered in an abandoned strip mine located in Butler County, Pennsylvania. An autopsy revealed that Ms. Lumley died from multiple stab wounds to the neck and back. The victim lived in Grove City, Pennsylvania. Witnesses saw her in the company of appellee and his brother, Donald Leroy Brown, on the evening of January 9, 1967. However, nobody saw Ms. Lumley after January 9th.

Pennsylvania State Police officers questioned appellee and his brother about the Lumley murder on January 21st and 22nd of 1967. The Commonwealth and appellee agree that these interviews constituted "custodial interrogations" within the meaning of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Both Donald and Samuel Brown gave statements to the police. On January 31, 1967, counsel was appointed to represent Samuel Brown. *fn2 The Commonwealth subsequently charged Donald Brown with homicide, and a jury trial commenced in July of 1967. Appellee testified against his brother at trial. Throughout the trial, appellee was represented by counsel. The jury found Donald Brown guilty of first degree murder and determined that the appropriate penalty was life imprisonment. See Commonwealth v. Donald Leroy Brown, Butler County O&T No. 26 March Term, 1967, N.T. July 17-21, 1967 at 546-549.

At some point following this conviction, Donald Brown informed Pennsylvania authorities that Samuel Brown lied at the 1967 trial. The certified record is unclear as to when Donald Brown first accused his brother of complicity in Ms. Lumley's murder. However, the trial court found that Pennsylvania State Police officers interviewed Donald Brown on April 3, 1995 and August 15, 1995 with regard to Samuel Brown's alleged involvement in the Lumley homicide. See Suppression Court Opinion filed June 13, 1996 at 2. During these interviews, Donald Brown stated that his brother was present when Ms. Lumley died and that he actively participated in the murder.

As a result of Donald Brown's information, the police began looking for Samuel Brown. In August of 1995, Pennsylvania authorities learned that he could be found in Lake City, Florida. Two Pennsylvania State Police officers, Charles Barger and Raymond Melder, were dispatched to Florida to interview Samuel Brown. Sergeant Art Piccolo of the Columbia County (Florida) Sheriff's Office helped the Pennsylvania officers to locate the suspect. Accompanied by Sergeant Piccolo, Troopers Barger and Melder found appellee at the Lake City Moose Lodge on August 29, 1995.

The Pennsylvania officers informed appellee that they were investigating the Lumley murder and requested Mr. Brown to answer some questions. Appellee agreed to talk to the police but stated that he wanted to remain at the Moose Lodge. The officers explained that the interview required a private setting and asked appellee to accompany them to the Columbia County Sheriff's Office. *fn3 The officers explained that the interview was voluntary and that appellee could end the Discussion and leave at any time. The officers did not give appellee Miranda warnings and counsel was not present at the August 29th interview. After about thirty minutes, appellee stated that he no longer wanted to talk to the police. The officers ended the interview and provided appellee with transportation back to the Moose Lodge.

The Pennsylvania State Police officers returned to Lake City on January 17, 1996 with an arrest warrant for Samuel Brown charging him with the murder of Ada Darlene Lumley. Florida authorities arrested appellee, transported him to the Columbia County Sheriff's Department, and advised him of his Miranda rights. The Pennsylvania troopers questioned appellee concerning the Lumley murder at the Columbia County Sheriff's Office. Authorities thereafter transported appellee to Pennsylvania where he was confined in the Butler County Prison. Appellee contacted Troopers Barger and Melder and requested a meeting at the Butler County Prison. The troopers went to the prison and spoke with appellee on January 26, 1996.

The trial court entered an order on January 30, 1996 appointing Alexander H. Lindsay, Jr., Esquire to represent appellee. In March of 1996, Mr. Lindsay filed an omnibus pre-trial motion on appellee's behalf. The Honorable Martin J. O'Brien, President Judge of Butler County, conducted a hearing on the motion on June 3, 1996. The Commonwealth presented the testimony of four witnesses: Chris Williams (the Second Deputy Clerk of Courts for Butler County), Pennsylvania State Troopers Barger and Melder, and Sergeant Piccolo. The defense did not call any witnesses and did not present evidence. On June 13, 1996, President Judge O'Brien ruled as follows: (1) the court suppressed the statements appellee gave to the police on January 21 and 22 of 1967; (2) the court found appellee's motion to suppress testimony from Donald Brown's preliminary hearing to be moot; *fn4 (3) the court denied suppression for appellee's testimony at his brother's trial; (4) the court granted suppression as to appellee's statement of August 29, 1995 without prejudice to the Commonwealth's right to seek review if any additional evidence becomes available demonstrating that the August 29th statement was not derived from appellee's suppressed statements of January 21 and 22, 1967; (5) the court granted suppression for the January 17, 1996 statement, without prejudice to the Commonwealth's right to seek further review if additional evidence becomes available to show that the January 17th statement was not derived from the suppressed statements of January 21 and 22, 1967; and (6) the court denied suppression for appellee's statement of January 26, 1996.

On June 17, 1996, the Commonwealth petitioned for an evidentiary hearing prior to trial so that the prosecution could present evidence on the suppression rulings concerning appellee's statements of August 29, 1995 and January 17, 1996. President Judge O'Brien heard argument that same day on the Commonwealth's request. However, the court declined to conduct a full evidentiary hearing before trial with regard to the Commonwealth's substantive claims. Immediately thereafter, the Commonwealth filed the instant appeal which presents four issues for our consideration: did President Judge O'Brien err in granting suppression as to: (1) appellee's statements of January 21 and 22, 1967, (2) the statement of August 29, 1995, and (3) the statement of January 17, 1996? The Commonwealth also contends that the trial Judge erred in denying its request for a second pre-trial evidentiary hearing regarding appellee's statements of August 29, 1995 and January 17, 1996.

Without question, it is the province of the suppression court to make findings of fact and Conclusions of law as to whether evidence was obtained in violation of an accused's constitutional rights. Commonwealth v. Tuck, 322 Pa. Super. 328, 332, 469 A.2d 644, 646 (1983). The standard of review that governs a ruling on a motion to suppress is well-settled. An appellate court must first ascertain whether the record supports the factual findings of the suppression court, and then determine the reasonableness of the inferences and legal Conclusions drawn therefrom. Commonwealth v. Oglialoro, 377 Pa. Super. 317, 318, 547 A.2d 387, 387 (1988), aff'd, 525 Pa. 250, 579 A.2d 1288 (1990). "[When] the Commonwealth appeals from the ruling of a suppression court, 'we must consider only the evidence of the defendant's witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted.'" Commonwealth v. Romine, 453 Pa. Super. 42, 47, 682 A.2d 1296, 1298 (1996) (en banc), appeal denied, 547 Pa. 754, 692 A.2d 565 (1997) (quoting Commonwealth v. DeWitt, 530 Pa. 299, 302, 608 A.2d 1030, 1031 (1992)). If the suppression court's factual findings are supported by the certified record, we are bound by those findings. Id. However, factual findings wholly lacking in evidence may be rejected. Commonwealth v. Bennett, 412 Pa. Super. 603, 606, 604 A.2d 276, 277 (1992). We may also reverse if the legal Conclusions drawn from the suppression court's factual findings are in error. Romine, supra.

Appellant first contends the suppression court erred in determining that the Commonwealth failed to prove that appellee was advised of his Miranda rights prior to the custodial interrogation of January 21 and 22, 1967. We note initially that President Judge O'Brien was correct in applying Miranda to this case. In Commonwealth v. Ware, 446 Pa. 52, 55-56, 284 A.2d 700, 702 (1971), the Pennsylvania Supreme Court explained that pursuant to Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966), all statements given to police during a custodial interrogation must be evaluated under the Miranda standard if the trial of the defendant began after June 13, 1966, the date of the Miranda decision. In this case, appellee's custodial interrogation itself occurred after the effective date of Miranda and his trial has not yet commenced. Thus, there is no question that Miranda applies.

An individual held for interrogation must be clearly informed as to four specific points: (1) that he has the right to remain silent; (2) that anything he says can be used against him in a court of law; (3) that he has the right to consult with a lawyer; and (4) that counsel will be appointed if he cannot afford a lawyer. Miranda, 384 U.S. at 471-72, 16 L. Ed. 2d at 722. A warning covering all four of these points is an "absolute prerequisite to interrogation." Id. No amount of circumstantial evidence that a person may have been aware of these rights suffices as a substitute for full and explicit information prior to interrogation. Id.

Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders. . . . A statement we made in Carnley v. Cochran, 369 U.S. 506, 516, 8 L. Ed. 2d 70, 77, 82 S. Ct. 884 (1962) is applicable here:

"Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver."

Miranda, 384 U.S. at 475, 16 L. Ed. 2d at 724. The United States Supreme Court explicitly held that it is the responsibility of the prosecution to show that the authorities explained to the defendant the full panoply of the specific rights protected under Miranda before any interrogation commenced. Miranda, 384 U.S. at 479, 16 L. Ed. 2d at 726. Unless or until the state unequivocally demonstrates that all of the Miranda warnings were provided, no evidence obtained as a result of interrogation can be used against the defendant. Id.

The Pennsylvania Supreme Court has explained the impact of Miranda in the following manner:

It is axiomatic that a confession to be valid must be given free of any physical or psychological coercion which might interfere with one's will to resist. Further, where the custodial interrogation involves the waiver of constitutional rights guaranteed under the Fifth and Sixth Amendments, the record must clearly demonstrate that the accused was fully apprised of his rights and knowingly made the decision to waive them.

Commonwealth v. Cunningham, 471 Pa. 577, 582-83, 370 A.2d 1172, 1175 (1977) (citations omitted; emphasis added). See Pa.R.Crim.P., Rule 323 (h), 42 Pa. C.S.A. (the Commonwealth has the burden of establishing that challenged evidence was not obtained in violation of the defendant's rights).

In this case, the Commonwealth did not call the officers who interviewed Samuel Brown in 1967 to testify at the suppression hearing. Instead, the prosecution introduced the transcript from Donald Brown's trial in an attempt to demonstrate that appellee was apprised of his Miranda rights prior to the custodial interrogations that occurred in January of 1967.

Q. [By defense counsel for Donald Brown]: Now, let me get down to the police station. Were you mugged and fingerprinted when you were brought in?

A. [By Samuel Elton Brown]: Yes.

Q. Did you know Ada Lumley was dead when you were arrested? Did they tell you she was dead?

A. I'm not sure if they told me right away or not.

Q. Did you think you were being questioned as to her death?

A. Yes.

Q. At the police station.

A. I'm not quite sure.

THE COURT: Not the police station, you mean at the barracks?

[Defense Counsel for Donald Brown]: Yes, sir.

A. I was brought there first.

Q. Were you informed of your constitution rights at that time?

A. Yes.

THE COURT: I didn't hear you?


Q. Did they offer to get you an attorney?

A. They told me that one would be provided if I ...

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