Appeal from the PCRA Order December 27, 2006, Court of Common Pleas, Dauphin County, Criminal Division at No. CP-22-CR-0001407-1998
BEFORE: PANELLA, DONOHUE and ALLEN, JJ.
Appellant, Elton Eugene Hill ("Hill"), appeals the order dated December 27, 2006 denying his petition for relief pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541 et seq. ("PCRA"). Hill contends that he was deprived of the effective assistance of counsel when his trial attorney, inter alia, failed to file a motion to suppress his post-polygraph statements, which he claims the police obtained in violation of his state and federal constitutional rights to counsel. For the reasons set forth here, we reverse the PCRA court's order and remand this case for further proceedings consistent with this decision.
In the early morning of April 8, 1998, intruders broke into the home of Mark and Kim Davis and threatened the Davis' young children with a baseball bat. One of the intruders, James Purcell ("Purcell") raped Ms. Davis. Mr. Davis was able to subdue Purcell and call the police. He left his teenage son to guard Purcell while he ran outside to pursue Hill, age 17 at the time, who he saw sitting in a car at the bottom of his driveway. Mr. Davis followed Hill in an attempt to get a license plate number, but Hill turned his car around and attempted to run Mr. Davis off the road.
On April 21, 1998, detectives from the Derry Township Police Department, including Detective Daniel Kelly ("Detective Kelly"), arrived at Hill's parents' home where Hill resided. Detective Kelly asked Hill to meet him at the police station. Upon his arrival at the police station, the police escorted Hill to an interrogation room to await the arrival of his parents. When they arrived and joined Hill, Detective Kelly read a form containing his Miranda*fn1 rights and gave Hill and his parents a chance to consult privately. Detective Kelly then presented them with a two-part form, the top part entitled "Constitutional Rights (Adults)" and the bottom "Waiver of Rights Miranda Warnings." Hill's parents signed the top part of the form but not the bottom part, and Hill did not sign either part. Detective Kelly testified, however, that both Hill and his parents verbally agreed to consent to an interview without the presence of an attorney. N.T., 4/25/06, at 106. At the conclusion of the interview, Detective Kelly arrested Hill, and three days later (on April 24, 1998), the Commonwealth filed a criminal information charging Hill with various criminal offenses.*fn2 Hill's parents then retained an attorney, Herbert Goldstein ("Attorney Goldstein").
On April 25, 1998, Hill was transported from county prison back to the police station. Attorney Goldstein met with Hill and advised him that he was about to be taken downstairs for a polygraph examination and that he should tell the truth.*fn3 Attorney Goldstein, a representative of the district attorney's office, and Detective Joseph Steenson ("Detective Steenson"), the polygraph examiner, met to determine and agree on the questions to be asked during the polygraph examination. At the outset of the polygraph examination, with Detective Kelly present (but without Attorney Goldstein), Detective Steenson read Hill a form that contained a recitation of his Miranda rights, which Hill then initialed and signed. That form, however, has apparently been lost and is not part of the certified record on appeal. Detective Kelly soon left the room and the polygraph examination proceeded to conclusion. Attorney Goldstein sat outside the examination room for some period of time, but went back to his office prior to the completion of the polygraph examination and did not return.
At the conclusion of the polygraph examination, Detective Steenson asked and received a short written statement from Hill. After a break, Detective Kelly re-entered and Detective Steenson left, at which time Detective Kelly proceeded to interrogate Hill. Detective Kelly did not ask questions from those approved by Attorney Goldstein prior to the polygraph test, but rather testified that his interrogation involved a comparison between Hill's answers during the polygraph test with those made during the prior April 21, 1998 interrogation with his parents present. Id. at 122. At trial, Detective Kelly testified that Hill began to cry uncontrollably, made incriminating statements, and drew diagrams of the crime scene. N.T., 11/18/98, at 283 ff., 297-98.
On November 20, 1998, a jury found Hill guilty of the above- referenced crimes. See footnote 2 supra. On March 15, 1999, the trial court sentenced Hill to serve an aggregate term of not less than 186 months and not more than 1008 months of incarceration in a state correctional institution. On March 7, 2001, this Court affirmed Hill's judgment of sentence, and on November 7, 2001, our Supreme Court denied Hill's petition for allowance of appeal.
On May 29, 2002, Hill filed a pro se PCRA petition. In February 2003, appointed counsel filed a petition to withdraw. On January 29, 2004, the PCRA court dismissed Hill's pro se PCRA petition, but after an appeal by Hill's privately retained counsel, on April 7, 2005, this Court vacated the PCRA court's dismissal of Hill's pro se PCRA petition.*fn4 On April 25, 2006 and July 27, 2006, the PCRA court held evidentiary hearings, and on December 27, 2006 the PCRA court again dismissed Hill's PCRA petition. On February 9, 2007, Hill's counsel filed a statement of matters complained of on appeal, but failed to docket an appeal. On November 15, 2010, Hill filed a new pro se PCRA petition seeking reinstatement of his appellate rights nunc pro tunc. On November 22, 2010, the PCRA court appointed Hill new counsel, and on March 23, 2011, reinstated Hill's right to file an appeal to the December 2006 dismissal of his PCRA petition.
This appeal followed, in which Hill raises two issues for our review:
1. Whether [Hill] was deprived of his constitutional right to effective assistance of counsel when his trial counsel failed to file a motion to suppress [Hill's] statement on 21 April 1998 as a violation of Miranda and its progeny.
2. Whether [Hill] was deprived of his constitutional right to effective assistance of counsel when his trial attorney abandoned [Hill] at a critical stage in the proceedings and when trial counsel failed to file a motion to suppress [Hill's] post-polygraph statement on 25 April 1998 as a violation of [Hill's] right to counsel under the Sixth Amendment to the United States Constitution as well as Article I Section 9 of the Pennsylvania Constitution.
We will first address the second issue raised by Hill, namely his claim of ineffective assistance of counsel as a result of Attorney Goldstein's failure to file a motion to suppress Hill's post-polygraph statements, as we conclude that it is dispositive. When reviewing an order of a PCRA court, our standard of review is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Reaves, 592 Pa. 134, 141-42, 923 A.2d 1119, 1124 (2007).
The test for determining the ineffectiveness of counsel is the same under both the United States and Pennsylvania Constitutions. Commonwealth v. Williams, 594 Pa. 366, 378, 936 A.2d 12, 19 (2007). To obtain relief on a claim of ineffective assistance of counsel, an appellant must show (1) that there is merit to the underlying claim; (2) that counsel had no reasonable basis for his/her course of conduct; and (3) that the ineffectiveness resulted in prejudice to the appellant. See, e.g.,
Commonwealth v. Rega, 593 Pa. 659, 696, 933 A.2d 997, 1018 (2007). The failure to satisfy any one of the prongs of the test for ineffective assistance of counsel requires rejection of the claim. Commonwealth v. Pierce, 567 Pa. 186, 203, 786 A.2d 203, 213 (2001). The burden of proving ineffectiveness rests with the appellant. Commonwealth v. Wilson, 543 Pa. 429, 440, 672 A.2d 293, 298 (1996). Trial counsel will not be deemed ineffective for failing to pursue a meritless claim. Commonwealth v. Pursell, 555 Pa. 233, 255, 724 A.2d 293, 304 (1999).
The Fifth and Sixth Amendments to the United States Constitution both provide criminal defendants with a right to counsel, though their protections differ in various respects. Although the Fifth Amendment does not expressly set forth a right to counsel, the Supreme Court inferred such a right in Miranda v. Arizona, 384 U.S. 436 (1966). Under Miranda, any suspect subject to custodial interrogation, regardless of whether a crime has been charged, has a right to have attorney present during questioning if the suspect so requests. Id. at 474. Once a defendant invokes his or her Fifth Amendment right to counsel, all questioning must cease. Edwards v. Arizona, 451 U.S. 477, 484 (1981). No subsequent interrogation may take place until counsel is present, "whether or not the accused has consulted with his attorney." Minnick v. Mississippi, 498 U.S. 146, 153 (1990).
The Sixth Amendment to the United States Constitution*fn5 states, in relevant part, that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. Amend. VI. The Sixth Amendment guarantees a defendant the right to have counsel present at all critical stages of the criminal proceedings. United States v. Wade, 388 U.S. 218, 227-28 (1967). Interrogation is a critical stage. Massiah v. United States, 377 U.S. 201, 204-05 (1964). The purpose of this right "is to 'protec[t] the unaided layman at critical confrontations' with his 'expert adversary,' the government, after 'the adverse positions of government and defendant have solidified' with respect to a particular alleged crime." McNeil v. Wisconsin, 501 U.S. 171, 177-78 (1991). Because it does not attach until a prosecution is commenced, the Sixth Amendment right to counsel is offense-specific. Commonwealth v. Romine, 682 A.2d 1296, 1299 (Pa. Super. 1996) (citing McNeil, 501 U.S. at 175).
In Kirby v. Illinois, 406 U.S. 682 (1972), the United States Supreme Court explained when the Sixth Amendment right to counsel attaches:
The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the 'criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable.
Id. at 689-90 (citations omitted).
As our Supreme Court has clarified, the "initiation of adversary proceedings" can be via "formal charge, preliminary hearing, indictment, information, or arraignment." Commonwealth v. McCoy, 601 Pa. 540, 546, 975 A.2d 586, 590 (2009); see also Commonwealth v. Colavita, 606 Pa. 1, 28, 993 A.2d 874, 890 (2010). As our Supreme Court indicated in McCoy, one type of "formal charge" initiating formal adversary proceedings is the filing of a criminal complaint. McCoy, 601 Pa. at 546, 975 A.2d at 590.
After the Sixth Amendment right to counsel attaches, it does not depend upon any further request by the defendant. Brewer v. Williams, 430 U.S. 387, 404 (1977). In other words, the Sixth Amendment right to counsel is "self-effectuating," in that the accused has no obligation to assert it. Commonwealth v. Cornelius, 856 A.2d 62, 72-73 (Pa. Super. 2004). The triggering event for attachment of the Sixth Amendment right to counsel is not a defendant's assertion of ...