March 4, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
GARY WAYNE URYC Appellant
Appeal from the Judgment of Sentence of August 29, 2012 In the Court of Common Pleas of Lancaster County Criminal Division at Nos.: CP-36-0000051-2012, CP-36-0005370-2010
BEFORE: BOWES, J., WECHT, J., and PLATT, J. [*]
Gary Uryc ("Uryc") appeals from his August 29, 2012 judgment of sentence. We affirm.
When M.U. was ten or eleven years old, Uryc touched her genitals with his hands. When M.U. was twelve years old, Uryc forced her to perform oral sex upon him. Both offenses recurred numerous times.
On September 10, 2010, a criminal complaint was filed against Uryc. Uryc was arrested on September 17, 2010. Notes of Testimony ("N.T."), 5/7/2012, at 9. Upon his entry to the Lancaster County jail, Uryc filled out standard paperwork indicating that he wished to have an attorney appointed to represent him. Id. at 84-95.
The next evening, Lancaster Police Officer Gareth Lowe and Detective Aaron Harnish interviewed Uryc at the jail. Id. at 9-10. Officer Lowe explained who he was and why he was there. Uryc then began to make a statement. Id. at 11. Officer Lowe explained that he would have to administer the standard Miranda warnings to Uryc, and that Uryc would have to sign a form to waive those rights if Uryc wished to speak with the police. Id. at 12. The officers did not ask whether Uryc previously had requested an attorney. Id. at 69. Officer Lowe testified that he read the form to Uryc, that he checked off the answer that Uryc gave to each question, and that Uryc signed the form. Id. at 13, 16. Uryc was informed through the waiver that he had the right to have counsel present. Id. at 14. Uryc asserted that he could read and write English, and that he had a GED. Id. at 13-14. Uryc had the opportunity to, and did, review the form prior to signing it. Id. at 15-16.
The interview took place in a small room with a table. Both the officers and Uryc remaining seated throughout. Id. at 36, 38. The entire interview lasted approximately three hours. Id. at 34, 51. Although Uryc became agitated at times during the interview, Officer Lowe testified that neither officer yelled at or exerted physical force upon Uryc. Id. at 42-44.
During review of the first statement that Uryc gave to Officer Lowe, Uryc expressed his unhappiness with how the statement read and declined to continue reviewing it. Id. at 49-50. Detective Harnish then offered to start over and to prepare a new statement with Uryc, an offer which Uryc accepted. Id. at 53.
Detective Harnish corroborated Officer Lowe's account and described the interview as "cordial." Id. at 58-62. Detective Harnish testified about Uryc's second statement, in which Uryc said that he believed M.U. was honest, that Uryc had no recollection of any of the actions of which he had been accused, and that Uryc's alcohol use caused him to lose control. Id. at 63-65.
On May 2, 2012, Uryc filed a pre-trial motion seeking, inter alia, to suppress the statements that he made to Officer Lowe and Detective Harnish. On May 7, 2012, the court held a hearing on the motion. On May 8, 2012, the court denied the motion. The case proceeded to a jury trial.
The trial court summarized the remaining procedural history in this case as follows:
[Uryc] has filed a direct appeal . . . of his conviction, on May , 2012, after a jury trial, of involuntary deviate sexual intercourse with a child, involuntary deviate sexual intercourse by forcible compulsion, incest, two counts of indecent assault person less than 13 years, corruption of minors, and two counts of intimidation of a witness. On August , 2012, after a presentence investigation, he was sentenced to an aggregate of [thirty-two] to [sixty-four] years in prison. [Uryc] was directed to file a Pa.R.A.P. 1925(b) statement, and he has done so.
Trial Court Opinion ("T.C.O."), 12/10/2012, at 1 (footnotes omitted, some capitalization modified).
Uryc raises two challenges on appeal:
I. Did the trial court err in refusing to suppress [Uryc's] statements to police, which were obtained after [Uryc] had been charged, arraigned, incarcerated, and had requested an attorney, in violation of [Uryc's] right to counsel as set forth in Article I, Section Nine of the Constitution of the Commonwealth of Pennsylvania, and Commonwealth v. Franciscus, 551 Pa. 376, 710 A.2d 1112 (1998)?
II. Was the evidence presented by the Commonwealth insufficient to prove beyond a reasonable doubt that [Uryc] committed the offense of involuntary deviate sexual intercourse with a child, where the jury could only speculate as to whether M.U. was less than 13 years of age at the time of any of the incident[s] which would have constituted the remaining elements of the offense of involuntary deviate sexual intercourse? Uryc's Brief at 7. Uryc first challenges the trial court's suppression ruling. Our standard of review is well-settled:
[I]n addressing a challenge to a trial court's denial of a suppression motion [we are] limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Since the [Commonwealth] prevailed in the suppression court, we may consider only the evidence of the [Commonwealth] and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.
Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa.Super. 2010) (quoting Commonwealth v. Bomar, 826 A.2d 831, 842 (Pa. 2003)).
Uryc argues that his statements to the police should have been suppressed because he was denied his right to counsel. Uryc maintains that, when he entered the county jail following his arrest and arraignment, he filled out a form requesting the appointment of counsel. Uryc asserts that filling out the form constituted an invocation of counsel. Hence, he avers, it was improper for police officers to question him the following day. Uryc argues that Franciscus controls. Uryc's Brief at 14-18.
The Commonwealth responds that the police officers read Uryc the Miranda waiver form and that Uryc answered each question and elected to waive his rights. The Commonwealth contends that this procedure resulted in a knowing, intelligent, and voluntary waiver of Uryc's right to counsel. Commonwealth's Brief at 7-10. The trial court reached the same conclusion, based upon the totality of the circumstances. T.C.O. at 2.
Uryc maintains that, once invoked, his right to counsel cannot be waived without counsel being present. This argument implicates the right to counsel conferred both by the Sixth and Fourteenth Amendments to the United States Constitution and by Article I, Section 9 of the Pennsylvania Constitution.
We have held that the "constitutional right to counsel provided under the Sixth Amendment [to] the United States Constitution is coterminous with the right to counsel [in] Article I, Section 9 of the Pennsylvania Constitution." Commonwealth v. Hill, 42 A.2d 1085, 1090 n.5 (Pa. Super.), appeal granted, 58 A.3d 749 (Pa. 2012); see Commonwealth v. Keaton, 45 A.3d 1050 (Pa. 2012); Commonwealth v. Arroyo, 723 A.2d 162 (Pa. 1999). The right to counsel attaches at the initiation of adversarial proceedings, and entitles the accused to have counsel at "all critical stages." Hill, 42 A.3d at 1090.
[T]he right to counsel does not depend upon a request by the defendant and it is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request. . . . Appellant was not required to "invoke" his Sixth Amendment right to counsel at his arraignment in order for such right to attach. Again, the triggering event for attachment of the Sixth Amendment right to counsel is not a defendant's "request" for counsel, but is, rather, the initiation of the judicial proceedings".
Commonwealth v. Cornelius, 856 A.2d 62, 72-73 (Pa.Super. 2004) (internal citations omitted); see also Hill, 42 A.3d at 1091.
However, the right to counsel may be waived, provided that the waiver is voluntary, knowing, and intelligent. "Although a defendant's Miranda rights have their source in the Fifth Amendment, a defendant who is admonished with the warnings set forth in Miranda has been sufficiently apprised of the nature of his/her Sixth Amendment rights, and thus a waiver of his/her Miranda rights may constitute a waiver of both Fifth and Sixth Amendment rights to counsel." Hill at 1091 (citing Patterson v. Illinois, 487 U.S. 285, 292, 296 (1988)).
In Franciscus, upon which Uryc principally relies, our Supreme Court held that when police officers used a jailhouse informant to obtain information from the defendant about his crime, they violated the defendant's Sixth Amendment right to counsel. 710 A.2d at 1120. In Franciscus, the informant continuously had provided information to police about multiple cases. In the guise of trying to assist the defendant, the informant specifically questioned the defendant about his crime. Id. at 1114-15. The Court held that the Commonwealth violated the defendant's Sixth Amendment right to counsel. The Court further held that this Court erred in finding the defendant's state constitutional claim was waived because the defendant did not include an Edmunds analysis in his brief. The Supreme Court also found a state constitutional violation. The Court went on to state that: "[W]e would hold that the right to counsel guaranteed by the state constitution was violated in this case . . . even assuming that the U.S. Supreme Court should later decide that the Sixth Amendment was not violated under circumstances such as those presented in this case." Id. at 1121. The Franciscus Court relied heavily upon the fact that the defendant was unaware that he was speaking to an informant, and the fact that the surreptitious nature of the exchange rendered the defendant unaware that he was subject to an interrogation. Id. at 1117-19.
Although Franciscus offers the possibility that Pennsylvania's right to counsel may in appropriate circumstance extend more broadly than the federal right, the facts before us suffice to distinguish Franciscus from the instant case. Here, Uryc was well aware that he was speaking to police officers. He knew that he was being interrogated. He received his Miranda warnings. He then waived his right to counsel. We have held that the right to counsel can be waived even after counsel has been appointed. See Hill, supra.
In Michigan v. Jackson, 475 U.S. 625 (1986), the United States Supreme Court addressed a similar issue regarding a valid waiver of the right to counsel. There, the Court held that, once a request for counsel had been made, police could not interrogate a defendant, even if the defendant signed a waiver of rights, without violating the Sixth Amendment. Id. at 635. The Jackson Court also held that, once one state actor is aware of a request for counsel, such knowledge is imputed to other state actors. Id. at 634.
However, in Montejo v. Louisiana, 556 U.S. 778 (2009), the Court overruled Jackson. Montejo squarely addressed whether a waiver is valid when the decision to waive is itself uncounseled. The Court held that it was, provided that the waiver was knowing, intelligent, and voluntary:
Our precedents also place beyond doubt that the Sixth Amendment right to counsel may be waived by a defendant, so long as relinquishment of the right is voluntary, knowing, and intelligent. Patterson v. Illinois, 487 U.S. 285, 292, n. 4, (1988); Brewer v. Williams, 430 U.S. 387, 404 (1977); Johnson v. Zerbst, 304 U.S. 458, 464 (1938). The defendant may waive the right whether or not he is already represented by counsel; the decision to waive need not itself be counseled. Michigan v. Harvey, 494 U.S. 344, 352–53 (1990). And when a defendant is read his Miranda rights (which include the right to have counsel present during interrogation) and agrees to waive those rights, that typically does the trick, even though the Miranda rights purportedly have their source in the Fifth Amendment:
"As a general matter . . . an accused who is admonished with the warnings prescribed by this Court in Miranda . . . has been sufficiently apprised of the nature of his Sixth Amendment rights, and of the consequences of abandoning those rights, so that his waiver on this basis will be considered a knowing and intelligent one." Patterson, supra, at 296.
Montejo, 556 U.S. at 786-87 (citations modified, emphasis added).
While Montejo answers the question of what the United States Constitution requires, the Pennsylvania Constitution may, as Franciscus suggests, provide a broader right. See Commonwealth v. Edmunds, 586 A.2d 887, 894-95 (Pa. 1991) (observing that the "federal [C]onstitution establishes certain minimum levels . . ." but that "each state has the power to provide broader standards, and go beyond the minimum floor which is established by the federal Constitution."). Edmunds sets forth the framework by which we analyze state constitutional issues. We have found no Pennyslvania cases that discuss Montejo's impact, if any, on how we construe Article I, Section 9 of our Pennsylvania Constitution. Therefore, we turn to the Edmunds methodology:
[A]s a general rule it is important [to] analyze at least the following four factors:
1) text of the Pennsylvania constitutional provision;
2) history of the provision, including Pennsylvania case-law;
3) related case-law from other states;
4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.
Depending upon the particular issue presented, an examination of related federal precedent may be useful as part of the state constitutional analysis, not as binding authority, but as one form of guidance. However, it is essential that courts in Pennsylvania undertake an independent analysis under the Pennsylvania Constitution.
Commonwealth v. Edmunds, 586 A.2d 887, 895 (Pa. 1991).
Article I, Section 9 provides that: "In all criminal prosecutions the accused hath a right to be heard by himself and his counsel . . . ." Pa. Const. art. I, § 9. This portion of the section has remained materially unchanged since our 1776 Constitution. The Sixth Amendment to the United States Constitution provides that "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. The Supreme Court of Pennsylvania has recognized that the language of the two provisions is "virtually identical." Arroyo, 723 A.2d at 167.
In a prior Edmunds analysis of these provisions, albeit one with a different focus, our Supreme Court observed the following:
[W]e review the history of the constitutional provision and Pennsylvania case law to determine if either is instructive on the question of whether the right to counsel attaches at an earlier stage than does the Sixth Amendment right to counsel.
As to the case law, we have found three matters in which this court discussed the right to counsel as guaranteed by this Commonwealth's constitution vis-a-vis the right to counsel as preserved by the federal constitution. Commonwealth v. Franciscus, 551 Pa. 376, 710 A.2d 1112 (Pa. 1998); Commonwealth v. Hess, 532 Pa. 607, 617 A.2d 307 (1992); Commonwealth v. Romberger, 464 Pa. 488, 347 A.2d 460 (1975). None of these opinions, however, is helpful in resolving this issue [of when the right attaches].
Arroyo, 723 A.2d at 168 (footnote omitted). While Arroyo dealt with the question of when the right to counsel attaches, none of the cases cited therein provides assistance in resolving the issue we confront here, nor a broader historical context of the Pennsylvania constitutional provision.
A review of Pennsylvania case law reveals that the right to counsel provided for in Article I, Section 9 has been found not to extend further than the right provided by the Sixth Amendment. For example, Pennsylvania courts have held that the juncture at which the right attaches is the same under both the state and federal constitutions. Commonwealth v. Keaton, 45 A.3d 1050 (Pa. 2012); Arroyo, supra. Similarly, our Supreme Court also has held that the respective rights to effective assistance of counsel are the same. See Commonwealth v. Pearce, 527 A.2d 973 (Pa. 1987). The only outlier is Franciscus, which, at most, carries the suggestion that the state provision may be broader; the Court there stated that it would find a violation of the state constitution even if the interrogation in question would pass federal constitutional muster. 710 A.2d at 1121.
Finding no definitive answer in our state law, we turn to our sister states. Few states have addressed this specific issue, especially post-Montejo. Many states, either implicitly or explicitly, find no distinction between waiver of the federal and state rights to counsel, implying thereby that the state constitutional right is largely co-extensive with the federal right. Some states explicitly have found the right to be co-extensive.Other states have found a broader right in their respective state constitutions, but not in the context before us today. Courts have spoken to waivers of the right to counsel in an interrogation setting after the right has been invoked. Yet, few courts have discussed this in a post-Montejo context.
The courts that would not follow Montejo do so based upon state law precedent that had followed Jackson. As the West Virginia Supreme Court stated:
The [Bevel case] is controlled by both the Constitution of West Virginia and the Constitution of the United States, and our decision must comply with both constitutions. However, under the primary tenant [sic] of federalism-on which our government is based-West Virginia may place higher standards on its police pursuant to its own laws than those required by the federal government. . . .
Montejo represents a narrower application of the Sixth Amendment right to counsel than the application of the right under [Jackson]. West Virginia may continue to follow [Jackson] without running afoul of Montejo.
State v. Bevel, 745 S.E.2d 237, 246 (W.Va. 2013). Thus, the Bevel Court held that its state case law following Jackson continued to control. Id.; see Williams, supra note 11.
As to policy concerns, this Court has recognized that the right to counsel is "to protect 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 crime." Hill, 42 A.3d at 1090 (internal citation and quotation marks omitted).
After reviewing the Edmunds considerations, we conclude that Montejo is controlling. Aside from Franciscus, we find no authority in the text, history, or relevant case law under Article I, Section 9 to suggest that Pennsylvania offers a greater right to counsel than that found in the Sixth Amendment in the particular context we confront here. We lack a strong line of state precedent compelling us to continue to follow Jackson, as the West Virginia court felt bound to do.
Consequently, under Montejo, we must decide whether Uryc's waiver was knowing, intelligent, and voluntary.
A defendant may waive his/her Sixth Amendment right to counsel so long as the waiver is voluntary, knowing, and intelligent. Although a defendant's Miranda rights have their source in the Fifth Amendment, a defendant who is admonished with the warnings set forth in Miranda has been sufficiently apprised of the nature of his/her Sixth Amendment rights, and thus a waiver of his/her Miranda rights may constitute a waiver of both the Fifth and Sixth Amendment rights to counsel.
The determination whether an accused has knowingly and voluntarily waived his constitutional rights depends on the facts of each particular case. These circumstances include the background, experience, and conduct of the accused. The government has the burden to prove, by a preponderance of the evidence, that the waiver was the product of a free and deliberate choice rather than intimidation, coercion, or deception and was made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the constitutional rights to counsel have been waived. With respect to constitutional rights, courts should indulge every reasonable presumption against waiver.
Commonwealth v. Kunkle, 79 A.3d 1173, 1181-82 (Pa.Super. 2013) (quoting Hill, supra) (internal citations and quotation marks omitted).
Here, Uryc was read the Miranda warning. He reviewed the waiver of rights form. He signed that form. He was informed of his right to counsel. He neither asked for counsel nor indicated to the police that he had requested counsel prior to the interrogation. When a defendant has received the Miranda warnings, the waiver is considered knowing and intelligent. Montejo, 556 U.S. at 786-87. During the interview, the investigators remained seated and did not raise their voices or yell. The interview was described as "cordial." When Uryc expressed dissatisfaction with how his statement sounded, the investigators started over and allowed Uryc to revise that statement. Nothing in the record indicates that Uryc's decision to waive his right to counsel was the product of coercion. Considering the totality of the circumstances, we conclude that Uryc's waiver of his right to counsel was knowing, intelligent, and voluntary. As such, Uryc's waiver was valid, and sufficed to vitiate his prior invocation of the right to counsel. The trial court did not err in refusing to suppress the statement.
Uryc next challenges the sufficiency of the evidence to support his conviction for involuntary deviate sexual intercourse ("IDSI") with a child. Our standard of review over a challenge to the sufficiency of the evidence is well-settled:
We must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The Commonwealth's burden may be met by wholly circumstantial evidence and any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.
Commonwealth v. Mobley, 14 A.3d 887, 889-90 (Pa.Super. 2011) (quoting Commonwealth v. Mullett, 5 A.3d 291, 313 (Pa.Super. 2010)).
Uryc concedes that M.U.'s testimony sufficed to prove IDSI by forcible compulsion, but asserts that there was insufficient evidence to prove IDSI with a child. Uryc states that one of the elements of IDSI with a child is that the child is under thirteen years old. Uryc argues that no evidence was offered to prove that M.U. was under thirteen years old at the time that Uryc engaged in sexual intercourse with her. Uryc maintains that M.U. could not offer dates when any of the alleged incidents occurred, and, therefore, the jury could not have concluded beyond a reasonable doubt that M.U. was under thirteen at the time of the alleged abuse without speculating. Uryc's Brief at 20-21.
The Commonwealth responds that M.U. testified to events that occurred when she was ten or eleven years old and that Uryc forced her to perform oral sex on him when she was twelve or thirteen years old. The Commonwealth maintains that this testimony was sufficient to support the conviction. Commonwealth's Brief at 11-12. The trial court also found that this same testimony was sufficient for the jury to find Uryc guilty of IDSI with a child. T.C.O. at 3-4.
The offense is defined as follows:
A person commits involuntary deviate sexual intercourse with a child, a felony of the first degree, when the person engages in deviate sexual intercourse with a complainant who is less than 13 years of age.
18 Pa.C.S.A. § 3123(b). Deviate sexual intercourse is defined as "[s]exual intercourse per os or per anus" or "penetration, however slight, of the genitals or anus of another person with a foreign object." 18 Pa.C.S.A. § 3101. A foreign object is defined as "any physical object not a part of the actor's body." Id. Our Supreme Court has held that "digital penetration of the vagina" does not fall within the definition of deviate sexual intercourse. Commonwealth v. Kelley, 801 A.2d 551, 556 (Pa. 2002).
M.U. testified that, when she was nine or ten years old, Uryc touched her genitals with his hands. N.T., 5/8/2012, at 116-18. M.U. was unable to state how often this occurred, but testified that it was frequent. Id. at 118. These acts, which the Commonwealth and the trial court cite, would not be sufficient to sustain an IDSI conviction pursuant to Kelley.
However, M.U. also testified that: "When I was like [twelve] or [thirteen] and he used to force me to perform oral sex on him." Id. At 118-19. M.U. described the events in some detail, testifying that this "happened more than I can count." Id. at 120.
In a sufficiency challenge, we must view the evidence in the light most favorable to the Commonwealth. We may not re-weigh the evidence or substitute our judgment for that of the fact-finder. M.U. testified to acts that fall within the definition of IDSI with a child. She also testified that these acts started when she was twelve or thirteen. The jury was entitled to find that testimony to be credible, and to determine that Uryc committed these acts while M.U. was twelve. Thus, the evidence sufficed to convict Uryc of IDSI with a child.
Judgment of sentence affirmed.