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HomeMy WebLinkAbout99-0849 CRIMINALCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CHARGES: INVOLUNTARY DEVIATE SEXUAL INTERCOURSE INDECENT ASSAULT JUAN A. ORTIZ OTN: L034628-0 NO. 99-0849 CRIMINAL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., August 20, 2002. In this criminal case, following a jury trial presided over by the Honorable Edgar B. Bayley, Defendant was found guilty of involuntary deviate sexual intercourse~ and indecent assault.2 From the judgment of sentence,3 Defendant has appealed to the Pennsylvania Superior Court.4 Prior to trial, Defendant filed, inter alia, a motion to suppress evidence.5 Defendant's motion requested suppression of inculpatory statements made by Defendant to a polygraph examiner, on the basis of Miranda v. Arizona.6 A hearing was held on the motion by the writer of this opinion on August 23, 1999. Following the hearing, the motion was denied.7 1 Act of December 6, 1972, P.L. 1482, § 1, as amended, 18 Pa. C.S. § 3123 (1998). 2Id. § 3126. 3 Defendant was sentenced to pay the costs of prosecution and to serve a mandatory term of imprisonment not less than five years nor more than ten years in a state correctional institution. Order of Court, June 6, 2002. 4 Notice of Appeal, filed June 24, 2002. 5 Defendant's Omnibus Pre-Trial Motion, filed July 15, 1999. 6 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); see N.T. 6, Suppression Hearing, August 23, 1999 (hereinafter N.T. __). 7 Order of Court, August 24, 1999. Defendant's appeal is based, in part, on the propriety of the denial of the suppression motion.8 Specifically, Defendant argues in this regard on appeal that his "confession should have been suppressed, as [he] was not re-Mirandized post- polygraph. ,,9 This opinion in support of the court's denial of Defendant's suppression motion is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS The facts of the case, as presented at the hearing on Defendant's motion, may be summarized as follows: On April 18, 1999, Defendant was arrested by Patrolman Daniel L. Hair of the West Shore Regional Police Department (located in Cumberland County, Pennsylvania), charged with a number of crimes including involuntary deviate sexual intercourse, in connection with conduct involving his three-year-old daughter, and placed in the Cumberland County Prison.l° On the day of his arrest, Defendant was read his Miranda rights by Patrolman Hair and Detective Jeffrey H. Franks of the Criminal investigation Division (CID) of the Office of the District Attorney of Cumberland County and signed a written waiver of his rights. Il Following execution of the waiver, Defendant signed a statement claiming that the charges filed against him were false12 and requested that he be given a polygraph examination. 13 The polygraph examination requested by Defendant was administered two days later, on April 20, i999.TM On that date, at the prison, Defendant advised Patrolman Hair 8 Defendant's Concise Statement of Matters Complained of on Appeal, filed July 15, 2002. 9]d. l0 N.T. 29-30. ll N.T. 26-27; Defendant's Exhibit 1 (hereinafter Commonwealth's/Defendant's Exhibit 12 N.T. 28, Defendant's Exhibit 2. 13 N.T. 29. 14 N.T. 9. 2 and CID Detective Franks of his continued willingness to take the polygraph examination.~5 For this purpose, he was again Mirandized and executed a written waiver 16 of his rights at 9:15 a.m. Defendant was transported by CID Detective Franks and Patrolman Hair from the prison a distance of one mile to the CID Office at the Cumberland County Courthouse,17 where the examination was administered by CID Detective Michael M. Brennan.~8 The procedure commenced at 10:00 a.m.,19 and consisted of three phases: (a) an interview to determine Defendant's suitability for the process;2° (b) subjection of Defendant to a set of eight questions, three times, while he was monitored by the polygraph machine;2~ and (c) a review of the results with Defendant.22 Typically, the initial interview phase of the polygraph procedure would take CID Detective Brennan forty-five minutes to an hour, and the phase during which the examinee was being physically monitored would last for twelve to eighteen minutes.23 In Defendant's case, the third question-set of the second phase had been completed by 10:50 a.m.,24 and the final, review-of-results phase lasted about forty-five minutes.25 In CID Detective Brennan's opinion, the polygraph instrument indicated deception on Defendant's part with respect to two questions that directly addressed his criminal ~5 N.T. 29-30. ~6 N.T. 11, 24; Commonwealth's Exhibit 1. CID Detective Franks read the Miranda warnings to Defendant, and both he and Patrolman Hair witnessed his execution of the waiver. Id. 17 N.T. 9-10, 23, 25. 18 N.T. 8-10. 19 N.T. 18. 2° N.T. 11-12, 18-20. 2~ N.T. 20, 23; Commonwealth's Exhibit 3. 22 N.T. 17-18. 23 N.T. 20. 24 N.T. 13. 25 N.T. 13, 15-18. 3 liability: whether he had his mouth on his daughter's vagina and whether he had sexual contact with his daughter.26 With encouragement from CID Detective Brennan as he reviewed the results with Defendant,27 Defendant eventually offered the explanation that he had engaged in cunnilingus with his daughter on one occasion under the mistaken impression, induced by cocaine, that she was his wife.28 At noon, Defendant proceeded to memorialize this inculpatory statement in a writing, which was witnessed by CID Detective Franks and Patrolman Hair.29 Defendant's motion to suppress the evidence so elicited was, as previously noted, the subject of a pretrial hearing, and was denied by order of court dated August 24, 1999. On appeal from the judgment of sentence, Defendant maintains that the order was erroneous because a re-administration of Miranda warnings was required prior to initiation of the review-of-results phase of the polygraph procedure.3° DISCUSSION Statement of Law Burden of proof. On a suppression motion, the burden is upon the Commonwealth to prove by a preponderance of the evidence that the challenged evidence was not illegally obtained by law enforcement authorities. Pa. R. Crim. P. 581(H); Commonwealth v. DeWitt, 530 Pa. 299, 301, 608 A.2d 1030, 1031 (1992); Commonwealth v. Benton, 440 Pa. Super. 441,444, 655 A.2d 1030, 1032 (1995). Miranda warnings; staleness. The Fifth Amendment to the United States Constitution and Article I, Section 9, of the Pennsylvania Constitution provide that criminal defendants may not be compelled to be witnesses against themselves. U.S. Const. amend. V; Pa. Const. art. I, § 9. The Supreme Court has held that "the prosecution 26 N.T. 13. 27 N.T. 13, 15. 28 N.T. 13-14. 29 N.T. 14; Commonwealth's Exhibit 2. 4 may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 707 (1966). These "procedural safeguards" have become known as Miranda warnings. Id The Pennsylvania Superior Court has indicated the following with respect to the re-issuance of Miranda warnings: Miranda warnings need not be repeated at every stage of interrogation. Commonwealth v. Dennis, 451 Pa. 340, 304 A.2d 111 (1973); Commonwealth v. Abrams, 443 Pa. 295, 278 A.2d 902 (1971). Whether the warning must be repeated depends upon whether the objective indicia test indicates that the prior warning became stale. Commonwealth v. Ferguson, 444 Pa. 478, 282 A.2d 378 (1971). · . . [T]he Ferguson court applied the objective indicia test and considered 1) the time lapse between the warnings and the complained-of interrogation, 2) whether the complained-of interrogation occurred at the same location as the earlier warnings, 3) whether the same officer gave the warnings and conducted the interrogation, and 4) whether statements, immediately preceded by warnings, significantly differed from statements elicited during the complained-of interrogation. Commonwealth v. Benjamin, 346 Pa. Super. 116, 123-24, 499 A.2d 337, 341 (1985). More recently, in Commonwealth v. Scott, 561 Pa. 617, 752 A.2d 871 (2000), the Supreme Court of Pennsylvania elaborated on the subject of the reiteration of Miranda warnings during interrogations. The Supreme Court in Scott noted that the criteria recited above were guidelines for use in a determination of whether the totality of the circumstances would lead a person to believe there was a "clear continuity of interrogation." Id. at 624-27, 752 A.2d at 875-77 (quoting Commonwealth v. Hoss, 445 Pa. 98, 112, 283 A.2d 58, 66 (1971)). 30 Defendant's Concise Statement of Matters Complained of on Appeal, filed July 15, 2002. 5 In Commonwealth v. Schneider, 386 Pa. Super. 202, 562 A.2d 868, (1989), the Superior Court of Pennsylvania concluded that Miranda warnings given prior to the commencement of a polygraph examination were adequate to ensure that a confession given post-polygraph was not obtained in violation of a defendant's right to remain silent. Idat 207-11,562 A.2d at 870-72. In Commonrvealth v. Bennett, 445 Pa. 8, 282 A.2d 276 (1971), the Pennsylvania Supreme Court held that a clear continuity of interrogation could be established even when constitutional warnings were given five hours prior to incriminating remarks, the Defendant was transported several miles from the location where he was read his constitutional warnings, and the person of the interrogator changed during the interrogation process. Id at 16, 282 A.2d at 280, cited frith approval in Scott, 561 Pa. at 624-25, 752 A.2d at 875-76. Application of Law to Facts In the present case, a number of factors persuaded the court that a clear continuity of interrogation had proceeded from the administration of Miranda warnings to Defendant through the phase of the polygraph procedure wherein CID Detective Brennan elicited the evidence challenged by Defendant. These factors included (a) initiation of the request for a polygraph examination by Defendant, (b) CID accommodation of this request by administration of Miranda warnings to Defendant in connection with the examination, transportation of Defendant to a CID office for the examination, and production of a CID polygraph expert to conduct the examination, (c) the integrated nature of the three-phase procedure employed by the polygraph examiner, (d) the relatively short distance that Defendant was transported, and (e) the relatively short period of time involved in the entire process. Under these circumstances, the court did not believe that the Miranda warnings administered in connection with the examination he had requested had become stale prior to the review-of-results phase of the procedure. 6 BY THE COURT J. Wesley Oler, Jr., J. The Honorable Edgar B. Bayley Jaime M. Keating, Esquire Chief Deputy District Attorney Ellen K. Barry, Esquire Assistant Public Defender 7