Commonwealth v. Mercier

¶1Opinion by

¶2Robert Mercier was convicted by a jury of murder in the first degree and the punishment was fixed at life imprisonment. Motions in arrest of judgment or for a new trial were denied. From the judgment of sentence then imposed the instant appeal was filed.

¶3The prosecution flowed from the shooting and subsequent death of Samuel Crudup in Philadelphia in 1969. The testimony produced by the Commonwealth at trial established that five males robbed a small corner store, of which Crudup was the proprietor, and during the course of the robbery Crudup was fatally shot by one of the robbers. The testimony also established that three of the males entered the store and two remained outside, up the street from the store, to act as “lookouts”. Mercier confessed to the police, without the assistance of counsel, that he was one of the individuals on the street acting as a lookout. The primary question presented on appeal is whether constitutional due process was violated at trial by permitting the evidentiary use of this confession.1

¶4The record reveals the following salient facts.

¶5The robbery and killing occurred during the afternoon of June 25, 1969. The police immediately arrived on the scene, and an investigation was undertaken. On June 27, appellant, Mercier, accompanied by his mother and an aunt, voluntarily went to police headquarters, *213and all three were taken to the homicide division. Before any questions were asked of appellant, he was read the required Miranda23warnings. At this juncture, the record reveals that appellant requested the assistance of counsel and refused to answer any questions until counsel was provided. The two police detectives who had administered the constitutionally required warnings left the room; however, they returned almost immediately and read appellant the statement of one Leroy Washington (one of the five individuals who allegedly participated in the crime) which implicated appellant as one of the perpetrators of the crime. Approximately thirty minutes to one hour thereafter, appellant waived his right to counsel, took a polygraph test, and gave the confession to the police wherein he stated he was one of the lookouts.

¶6The law is clear that if an individual is given the Miranda warnings and responds that he wishes to exercise any of those rights, all interrogation must cease. See Miranda v. Arizona, supra, at 474;3 Commonwealth *214v. Nathan, 445 Pa. 470, 285 A. 2d 175(1971); Commonwealth v. Leaming, 432 Pa. 326, 247 A. 2d 590 (1968). Thus, the first question for discussion is, was the reading of the statement of a third party, which implicated appellant, “interrogation” within the meaning of Miranda. We rule it was.4

¶7In Commonwealth v. Simala, 434 Pa. 219, 227, 252 A. 2d 575 (1969), we stated that “any question likely to or expected to elicit a confession constituted ‘interrogation’ under Miranda.” And in Commonwealth v. Bordner, 432 Pa. 405, 247 A. 2d 612 (1968), we held that the use of the office of a third party by the police was as much interrogation as if the questions were propounded by the police themselves. Given this background, in the recent case of Commonwealth v. Hamilton, 445 Pa. 292, 285 A. 2d 172 (1971), we dealt with a similar question in an analogous situation. In Hamilton, the accused was taken to a police station but was not administered the Miranda warnings. He was then confronted with two individuals who had previously confessed to the crimes therein involved, and these individuals accused Hamilton of being the triggerman in the crimes. Mr. Justice Pomeroy, speaking for the Court, held this procedure constitutionally invalid and a form of interrogation stating: “A person whose freedom is restrained and who is a suspect must first be apprised of his constitutional rights prior to the initiation of any form of official interrogation be it direct or conducted indirectly through the offices of a third party.” (Emphasis in original.) Id. at 297, 285 A. 2d at 175.

¶8Thus, we conclude, based on this precedent, that reading the statement of a third party which implicated the appellant was interrogation. We refuse to distinguish between confronting the appellant directly with those *215who implicate him and reading their statement to him, both have the same effect—both are a form of official interrogation. Consequently, reading the statement after appellant had exercised his Miranda rights was totally impermissible. Interrogation should have ceased once the appellant exercised his constitutional rights, and since we hold the reading of the statement of a third party to appellant was a form of interrogation, obviously interrogation did not cease. Hence, the police violated the mandate of Miranda.

¶9The Commonwealth argues that appellant later voluntarily changed his mind about not answering questions without the assistance of legal counsel, effectively waiving his rights in this regard and rendering his subsequent confession admissible.

¶10As we said in Commonwealth v. Nathan, supraat 477: “For the Commonwealth to persuade the court that appellant, after exercising his privilege, changed his mind voluntarily, it has the burden of showing that appellant’s change of mind occurred without his being ‘threatened, tricked, or cajoled’.”

¶11This case is quite similar to Nathan, supra,in that in both cases, after the defendant exercised his right not to be questioned until an attorney was present to represent him, the police confronted him with the statement of a co-felon in order to convince him to change his mind. The only circumstance which distinguishes the instant case from that in Nathan, supra,is that here, appellant was permitted an opportunity to speak with his mother and his aunt prior to making his statement and indicating that he did not require a lawyer. We do not believe that this opportunity to talk to two lay people, albeit close family members, was sufficient. Appellant had indeed indicated his desire to avail himself of the services of an attorney before submitting to interrogation. What followed thereafter was all the result of the improper procedure of the police in confronting *216Mm with the third party’s statement implicating him. For a waiver to be effective, the reversal of the defendant’s position must have been initiated by Mm. This is not a situation where a person in custody, after asserting his rights, indicated a desire to waive them without any further activity on the part of the police. Here, the police imtiated the chain of events which culminated in appellant’s inculpatory statement by, in effect, saying to him, after he had asserted his rights, “we have you now because we have a statement from another party wMch implicates you.” To hold that one in appellant’s situation made a knowing and intelligent waiver in such circumstances would be reaching too far to overcome the presumption against a waiver, wMch operates in favor of appellant.

¶12Judgment of sentence reversed and case remanded for a new trial.