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HomeMy WebLinkAbout99-2459 criminalCOMMONWEALTH ge JOSEPH WILLIAM BRETZ · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA ·NO. 99-2459 CRIMINAL TERM IN RE' DEFENDANT'S OMNIBUS PRETRIAL MOTION BEFORE GUIDO, J. AND NOW, this ORDER OF COURT day of MARCH, 2000, after hearing the defendant's Omnibus Pretrial Motion in the nature of a motion to suppress evidence it is DENIED. By the Edward E. Guido, J. District Attorney's Office Thomas Miller, Esquire For the Defendant 'sld COMMONWEALTH go JOSEPH WILLIAM BRETZ · IN THE COURT OF COMMON PLEAS OF · CUMBE~AND COUNTY, PENNSYLVANIA ·NO. 99-2459 CRIMINAL TERM IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION BEFORE GUIDO, J. OPINION AND ORDER OF COURT The defendant filed a two count Omnibus Pretrial Motion. Currently before us is the Motion to Suppress Evidence contained in count 1 of that motion.~ An evidentiary hearing was held on February 17, 2000. This matter is now ready for disposition. FINDINGS OF FACT On October 28, 1999, a two (2) year old child sustained serious bums when she was placed into a tub of scalding water. The child's physician indicated to the police that the bums may not have been accidental. The police began an investigation in which the child's mother and her paramour, the defendant, became suspects. On the afternoon of November 1, 1999, Detective Richard Dougherty of the East Pennsboro Township Police Department went to the home of the victim's mother. He was accompanied by Children and Youth Services caseworker, Jill Albright. When they arrived at the residence, the defendant was present.2 The detective and the caseworker advised the defendant that he was under court order to have no contact with the child ~ The parties have agreed that the issue raised in the second count of the motion is really an evidentiary matter which should more properly be raised at trial or in the from of a motion in limine. 2 At the time he shared the residence with the victim's mother. 99-2459 CRIMINAL TERM until the investigation was complete. He was asked to leave the residence, which he agreed to do. Detective Doughertyindicated to the defendant that he would like to discuss the incident with him and asked if he would have any time to meet him at the East Pennsboro Township Police Department. The defendant indicated that he was willing to cooperate. The detective asked if he would wait outside until his investigation in the residence was complete. The defendant agreed to do so. When the detective was done in the residence, he asked the defendant to voluntarily accompany him to the police station. The defendant asked if he could follow the detective to the station in his own car. The detective indicated that he could. The defendant did, in fact, use his own vehicle to follow the detective and caseworker to the police station. Once at the station, Detective Dougherty made it very clear to the defendant that he was not under arrest and that he was free to leave at any time. As he closed the door to his office, the detective explained that he was doing so merely for privacy and that the defendant was not under arrest. He further advised the defendant that he was not under any obligation to answer questions and that he could leave at anytime. He also made it clear that if the defendant began to answer questions, he could stop at any time and leave. All of these warnings and assurances were given prior to the commencement of the interview. The interview was taped by the detective. Before he began talking about the incident, the detective again assured the defendant, on tape, that he was not under arrest 99-2459 CRIM1NAL TERM and was free to leave any time. The transcript of the interview contained the following relevant exchanges' DETECTIVE RICHARD DOUGHERTY' Joe, you understand that although we are here uh, in what we will call the Criminal Investigation Office, and you are in here with the door closed, you understand, you're not under arrest, and at anytime you want to, you can say, I've had enough and get up and leave. Okay? JOSEPH WILLIAM BRETZ: Okay. DETECTIVE RICHARD DOUGHERTY' Okay. You understand that? JOSEPH WILLIAM BRETZ' Yes. DETECTIVE RICHARD DOUGHERTY: Okay. You understand that you're not under arrest? JOSEPH WILLIAM BRETZ' Yes. DETECTIVE R/CHARD DOUGHERTY: ... So, I just wanted to make it clear. You' re not under arrest an (sic) if you feel threatened or anytime you want to, you can feel free to say, that ends it, and get up and leave. Okay. JOSEPH WILLIAM BRETZ' Okay.3 During the course of the interview the detective was calm and courteous towards the defendant. However, once the tape recorder was mined off, the detective became more confrontational. He told the defendant that he did not believe the version of events just given to him. He urged the defendant to tell the troth and confess to what really happened. Although the defendant was not in custody at that time, the detective read his Miranda rights to him and asked him to sign a waiver of those fights. The defendant refused to do so and left the police station. 3 Commonwealth's Suppression Hearing Exhibit 5, p. 3. 99-2459 CRIMINAL TERM CONCLUSIONS OF LAW 1) The defendant was not in custody at the time he gave the recorded statement. 2) Detective Dougherty was not required to advise him of his fights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). 3) The defendant's tape recorded statement should not be Suppressed. DISCUSSION The defendant asks us to suppress the tape recorded statement he made to Detective Dougherty at the East Pennsboro Police Station. He argues that his Miranda warnings should have been given prior to the commencement of the interview. Miranda v. Arizona, supra. We disagree. "It is well settled that the police are only required to advise a person of his Miranda fights if that person is subjected to custodial interrogation." Commonwealth v. Rosario, 438 Pa. Super. 241,264, 652 A.2d 354, 365 (1994)(en banc), appealed denied, 546 Pa. 668, 685 A.2d 547(1996). As our Supreme Court has stated: The test for determining whether a suspect is being subjected to custodial interrogation so as to necessitate Miranda warnings is whether he is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation. Commonwealth v. Chacko, 500 Pa. 571,577, 459 A.2d 311, 314 (1983). In the instant case we cannot fathom how the defendant could "reasonably" believe that he was in custody or that his freedom of action or movement was restricted. The detective made it perfectly clear that he could leave at any time. The defendant understood this. The defendant had his own vehicle. The defendant did, in fact, leave 99-2459 CRIMINAL TERM when the police officer became less cordial and more confrontational. It is clear that the defendant was not subjected to custodial interrogation. Therefore, no Miranda warnings were required and his tape recorded statement will not be suppressed.4 ORDER OF COURT AND NOW, this 3m) day of MARCH, 2000, after hearing the defendant's Omnibus Pretrial Motion in the nature of a motion to suppress evidence it is DENIED. By the Court, /s/Edward E. Guido Edward E. Guido, J. District Attorney's Office Thomas Miller, Esquire For the Defendant :sld 4 Although we do not believe that the defendant was subjected to custodial interrogation at any time during this sequence of events, the Commonwealth has agreed not to use any of the statements given at the station after the taped statement was complete.