Commonwealth v. Marabel

¶1Dissenting Opinion by

¶2The majority concedes that the defendant was illegally interrogated at two lengthy sessions by the police during which at least one statement which “could be viewed as a damaging admission” was elicited. It then departs from our prior authorities and now holds that defendant’s confession at a third interrogation session, preceded by Miranda warnings, was voluntary. That departure I cannot accept.

¶3The facts of this case show that the confession held voluntary by the majority was in fact inconsistent with principles we have heretofore applied to similar situations. During the first interrogation the defendant admitted ownership of a vehicle which matched the description given by several eyewitnesses as involved in the crime. His attempt during this interrogation to create an alibi was frustrated when the person he said he was with on the night of the crime initially refuted *451the story. During the second session of questioning an even more damaging admission was procured. The police secured from the defendant a statement that on the night of the crime he ivas with the person whom the police knew had committed the robbery and murder.

¶4It is clear that defendant was entitled to Miranda warnings before the commencement of the first two interrogation detentions held on May 6 and May 15. In determining whether “custodial interrogation”* has taken place, the first consideration is whether the police had any reason to suspect that the defendant actually committed the crime. See Commonwealth v. Bordner, 432 Pa. 405, 247 A. 2d 612 (1968) ; Commonwealth v. Banks, 429 Pa. 53, 239 A. 2d 416 (1968) ; Commonwealth v. Sites, 427 Pa. 486, 235 A. 2d 387 (1967) ; Commonwealth v. Jefferson, 423 Pa. 541, 226 A. 2d 765 (1967). It is irrelevant that the police had not actually arrested the defendant, as we said in Jefferson, supra: “Custodial interrogation is not limited to police station questioning or that occurring after a formal arrest.” Id. at 546, 226 A. 2d at 768.

¶5The second indicia of custodial interrogation is whether there is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966). See also Commonwealth v. Frazier, 443 Pa. 178, 279 A. 2d 33 (1971) ; Commonwealth v. Bennett, 439 Pa. 34, 264 A. 2d 706*452(1970); Commonwealth v. Bordner, supra; Commonwealth v. Banks, supra; Commonwealth v. Sites, supra; Commonwealth v. Jefferson, supra. In deciding whether a person has been “deprived of his freedom of action in any significant way” this Court has recognized the nature of the compulsion involved. As this Court said in Sites, supra: “In this case, Sites was escorted from his father-in-law’s home, where several people were present, to his own home where he could be questioned privately. True, he raised no vocal objection to this, but it would be quite unrealistic to believe that his actions were completely free of compulsion.” (Emphasis added). Id. at 492, 235 A. 2d at 390, 391.

¶6Here the police had substantial reason to suspect that defendant was a participant in the crime being investigated. They knew that he owned a car similar to that described by several eyewitnesses, and an informer had linked him to the crime. The defendant was subjected to two lengthy interrogations at the police station, one of six hours and one of three hours. During the course of these interrogations the uncontradicted record shows that defendant could reasonably have believed that his “freedom of action” had been “deprived” in a “significant way.”

¶7In my opinion the majority has ignored the extent to which this Court has focused on the subjective reasonableness of the defendant’s belief that his freedom of action had been deprived. Instead the majority purports to adopt a test which looks at the objective reasonableness of the defendant’s perception. This reasonable-man test, whatever its efficacy in other areas of the law, has no relevancy to the determination of whether Mirandawarnings should be administered. The test should not be whether a reasonable man reasonably believes that his freedom of action has been deprived, but what this individual reasonably believes. A subjective test of reasonableness is necessary to take *453into account the disparate levels of sophistication and knowledge that exist within onr society.

¶8In holding that the confession elicited by the police at the third interrogation session was not tainted by the earlier illegal questioning the majority ignores the wrell reasoned and firmly established tests to determine taint: “The central question for decision is whether or not the written statement given by Moody after he received all of the warnings of constitutional rights Escobedo required stemmed from the first illegal questioning and is therefore The fruit of the poisonous tree’ or whether the attending circumstances were such as to remove the taint of the initial illegality.” Commonwealth v. Moody, 429 Pa. 39, 44, 239 A. 2d 409, 412 (1968). Amplifying that test this Court said in Commonwealth v. Ware, 438 Pa. 517, 265 A. 2d 790 (1970) : “. . . the short time lapse between the illegally obtained oral admission and subsequent written confession cannot be considered sufficient time to remove the taint of the illegal custodial interrogation. . . . Nor can the recital of the required warnings at such a late stage in the interrogation process remove the taint.” Id. at 522, 265 A. 2d at 793.

¶9This Court has thus used two complementary approaches in determining whether a subsequent confession is rendered involuntary because of prior illegal interrogation. If the confession was a direct “exploitation of . . . illegality” or “the fruit of the poisonous tree” it is inadmissible. Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417 (1963) ; Commonwealth v. Ware, supra; Commonwealth v. Moody, supra. Alternatively, if the psychological effects of the earlier admission or confession derived from the illegal interrogations are such that the defendant’s waiver was not knowing and intelligent, the confession is not voluntary. The vice of an earlier illegally obtained confession was cogently summarized by Justice Jackson *454in United States v. Bayer, 331 U.S. 532, 540, 67 S. Ct. 1394, 1398 (1947) : “[A]fter an accused has once let the cat out of the bag by confessing no matter what the inducement, he is never thereafter free of the psychological and practical disadvantage of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense a later confession always may be looked upon as fruit of the first.”

¶10The admissions made by the defendant during what the majority concedes to be illegal interrogations are clearly distinguishable from the statements made in Commonwealth v. Frazier, supra, relied upon by the majority. In Frazier, this Court found: “. . . nothing appellant said before he was warned was used to incriminate him. No other link was shown between the questioning to which appellant was subjected without warnings and his subsequent confession. . . .” Id. at 181, 279 A. 2d at 35. Here there is a definite link; surely the police were encouraged by the damaging statements made by defendant during the illegal interrogations. More importantly the psychological effects of the earlier admissions almost certainly vitiated any chance that defendant’s confession was voluntary. The majority agrees as it must that defendant’s statement that he was with the person known to have actually perpetrated the robbery and murder “could be viewed as a damaging admission.” On this record the majority should also concede that for all practical purposes “the cat was out of the bag.”

¶11I dissent.