*1 Superior order Court should therefore be re- versed.
CAST1LLE, Justice, joins dissenting opinion. this
v. DeJESUS, Appellant. Jose Supreme Pennsylvania. Court of
Submitted March 2001.
Decided Dec. *6 Dejesus. Marinaro,
Joseph Philadelphia, for J. Marshall, Graci, Catherine Philadelphia, Robert A. Harris- burg, for Commonwealth of PA. FLAHERTY, C.J., ZAPPALA,
Before CAPPY, CASTILLE, NIGRO, SAYLOR, NEWMAN and JJ.
OPINION CAPPY, Justice.
This is a direct review of a sentence of imposed by death Court of Common Philadelphia County.1 Pleas of For the follow, reasons that affirm judgment we of sentence. Appellant, DeJesus, Jose was arrested taken into 23, custody on September 1997 for other crimes. On October 30, 1997, Appellant was gave arrested and a statement to the police in this Appellant charged case. with two counts of murder,2 assault,3 two aggravated possession counts of of an crime,4 instrument of criminal conspiracy,5 and reckless endan germent of person.6 Appellant’s another began trial on July 5, 1999, August 1999. jury On found him guilty of two 722(4), 9711(h)(1). §§ 1. See Pa.C.S. 2502(a). §
2. 18 Pa.C.S. §
3. 18 Pa.C.S. 2702. §
4. 18 Pa.C.S. 907. §
5. 18 Pa.C.S. 903. §
6. 18 Pa.C.S. murder, Fol- and all related offenses. degree counts of first a verdict of phase, jury also returned lowing penalty murder, finding four on each count of penalty the death mitigating and no circumstances. circumstances7 aggravating of Common Pleas of Philadel- August the Court On death, and addi- County formally sentenced phia twenty forty years for him to serve tionally sentenced assault, years possess- for two and one-half to five aggravated crime, years twenty an instrument of ten ing consecutively.8 Appellant’s post-trial all to run conspiracy, appeal followed. motions were denied. This sufficiency challenge does not Although Appellant convictions, regard degree with to his first murder independent an review of the required to undertake we are capital in all cases. Common sufficiency of the evidence *7 16, 937, Pa. 454 A.2d 942 n. 3 Zettlemoyer, wealth v. 500 denied, 970, 2444, (1982), 77 L.Ed.2d 461 U.S. 103 S.Ct. cert. (1983). reviewing sufficiency of the 1327 The standard for at and all admitted trial evidence is whether evidence therefrom, when viewed reasonable inferences drawn Commonwealth the verdict light most favorable winner, all of offenses support is sufficient to the elements Miller, v. 541 Pa. beyond doubt. Commonwealth reasonable (1995). 1310, 1314 531, 664 A.2d murder, finding degree of first
In order to sustain unlawfully being that a human was must establish killed, killing, killing and that the was that the accused did intentional, way. 18 premeditated in an deliberate done jury Appellant were:. that aggravating circumstances found 7. The victim, killing 42 Pa.C.S. paid by person for the of the another 9711(d)(2); knowingly grave Appellant created a risk of harm to § offense, 42 person the victim of the Pa.C.S. in addition to another 9711(d)(7); history felony Appellant significant convic § had a person, 42 involving or violence to the Pa.C.S. tions the use threat of 9711(d)(9); Appellant of another murder § and that had been convicted issue, 42 Pa.C.S or at the time of the offense either before 1(d)(1 1). § 971 recklessly for the conviction of endan- received no sentence aggravated person it included offense of gering another since is a lesser assault.
423
Mitchell,
2502(a), (d);
528 Pa.
§
v.
Commonwealth
Pa.C.S.
(1991).
624,
546,
intent to kill
specific
599 A.2d
626
It is the
degree
from lesser
distinguishes murder
the first
which
Smith,
65,
Pa.
v.
548
694
grades of the crime. Commonwealth
847,
(1997),
denied,
1086,
119 S.Ct.
A.2d
1088
cert.
525 U.S.
(1998).
118,
may prove the
prosecution
142 L.Ed.2d
95
offense,
intent, through
including
requisite
elements
Brown, 551 Pa.
v.
circumstantial evidence. Commonwealth
(1998).
444,
465,
that the use of a
711 A.2d
We have held
body
is sufficient to
deadly weapon
part
on a vital
a human
Walker,
to kill.
v.
specific
establish the
intent
Commonwealth
854,
90, 95(Pa.),
denied,
80,
516 U.S.
540 Pa.
656 A.2d
cert.
(1995). Moreover,
156,
under the
Felix “Chino” was a rival dealer who controlled Vargas Franklin and had the corner of Cambria Streets. *8 Vargas. to kill recently shot Robelos. Robelos had vowed pay killing Vargas. would him for Pagan told Robelos he helped Vargas. kill pay Appellant Robelos to if he offered Hernandez, 30, 1997, Roman, Ortiz, May and Pabon On Pagan and Birch. selling drags wTere on the corner of 8th and told contact him if he saw went to the corner Ortiz to afternoon, Hernandez, Pabon, Roman, Vargas. In the late Appellant gathered Pagan’s They Robelos and at house. killing Vargas. sat at table and about Ortiz the kitchen talked telephoned p.m. at about 7:00 to tell them that he had seen Vargas. Pagan responded early that it was too action. take p.m., telephoned Pagan At around 10:30 Ortiz to tell that he Vargas again. Pagan had seen told Ortiz come to his house in his car. later, house, at Pagan’s
Some fifteen minutes Ortiz arrived 1.8, driving gray Toyota his small with tinted windows and a plate. Pagan tilted license Ortiz came inside and went to the basement, Pagan basement. When came out of the he had with him a large bag. bag black contained two AK 47 rifles, a .9 pistol, millimeter semi-automatic .45 caliber semi- pistol, Pagan gave automatic and ski masks. one the rifles handguns to Robelos and the other to and the Hernandez, Pabon and “do it right.” and said Ortiz, Robelos, Pabon, At p.m. Appel- 10:50 and Hernandez lant in Pagan’s Toyota Vargas left house to find and shoot seat, him. was driving, sitting Ortiz Robelos was the front Appellant, and Pabon sitting and Hernandez were in the back. go Roman left to to his father’s house.
Vargas away was a few blocks at of Franklin the corner and Streets, friend, Indiana sitting parked his automobile with a Tony As an truck stopped Garcia. ice cream arrived and car, nearby, Carrisquilla, Garcia exited the Elizabeth who pregnant, passenger seven months leaned on the window speak Vargas. Toyota with When the arrived at Franklin Indiana, Robelos, Appellant, got and Pabon Hernandez out of shooting Vargas, the car and started at who was approximately away. fifteen feet was sitting
Oscar Velez on Franklin Street with friends. two-door, gray, Toyota He saw a 1.8 with tinted windows and plate park a tilted license drive the intersection of Franklin and Indiana. saw wearing He next men black get Toyota shooting clothes and ski masks out of the and start Vargas’ car. McBride, along baby, Paula with her was on Franklin with Lisa Velez and Martiza Martinez. McBride and Martinez bright heard noises that sounded like firecrackers and saw *9 ran McBride’s As Martinez from the corner. coming lights leg. As right of her on the back house, burning she felt stinging baby, she felt a her pick up over to McBride leaned and McBride had been Martinez of head. Both top on the her truck, Velez, cream heard was the ice Lisa who near shot. peeked and ducked. She like a firecracker that sounded noise gray, two door and saw the front of the truck around the intersection, as well middle of the parked 1.8 Toyota also saw Vargas’ car. She coming from sparks and smoke masks. next and face She wearing black clothes shooters Toyota as the with a rifle enter one of the men observed away. pulled car Vargas’ car. ran to shooting stopped, Garcia
When Carrisquilla steering wheel. slumped over the Vargas was and authorities shot in the back. The ground, was on the pronounced was dead Vargas summoned. help were medical head, to the neck multiple gunshot from wounds at the scene McBride, Carrisquilla were taken Martinez and and chest. and sur- were treated hospital. McBride and Martinez delivered Cesarean Carrisquilla baby, died. Her vived. section, by the medical exam- Projectiles saved. removed AK-type from Vargas Carrisquilla both and were iner from firearms. meantime, Ortiz, graze wound to who had suffered
In the head, Birch mother’s home at 811 drove to Hernandez’s Street, Pagan came out along with Hernandez and Robelos. Pagan was heard to hospital. 811 Birch to Ortiz to the take * * * *n, just Neighbors n* *s killed Chino.” say “D* those Centano, Pabon, Ortiz, Hernadez, and Robelos Pagan, saw on celebrating the street. Centano, Pagan, 11:30 Roman met with p.m.,
At about Hernandez, Pabon, Pagan’s home. Robelos and money. retrieved two Pagan get told Centano to Centano cash, $2,500, gave them to containing bundles each gave the other kept Robelos one bundle Robelos. Appellant.9 arrested, Centano, Hernandez, charged, Pagan, and Pabon degree of third jointly Appellant. with Centano was convicted tried thorough
Our review the record demonstrates that the clearly above-recited support evidence is sufficient to *10 Appellant’s degree convictions for first murder. The evidence that Appellant present Pagan’s establishes was in during home planning Vargas’ shooting, gave the that him Pagan a AK murder, 47 rifle and ski mask night the that he was one Toyota of the men in Vargas’ the from which emerged, killers parts Vargas’ rifle, that he shot at vital body with a AK-47 fragments recovered from both Vai-gas Carrisquilla and rifle, with an type consistent AK-47 and that he payment received for Vargas’ death.
We now turn to Appellant’s allegations of error. The first Appellant’s concerns assertion that the admission at trial of a gave police statement he in which shooting he confessed to Arizona, violated Miranda v. Vargas payment for 384 U.S. (1966). L.Ed.2d 694 begin We with the facts Appellant’s relevant to confession. arrested, The record that Appellant reveals had been taken custody, into charged with other September crimes on In 23rd, connection with this on September arrest Miranda Appellant them, was read his rights and waived gave police several statements.
By 30, 1997, October Detective John McDermott of the Philadelphia Department Police had an secured arrest warrant Appellant in present day, case. On Detective McDermott and transported another detective Appellant, who custody, had remained in from prison to the Police Adminis- Building. They tration placed Appellant in an interview room approximately 1:00 p.m., point, at which Appellant asked why being charged. he was Detective McDermott advised murder Pagan, and related offenses. Hernandez and Pabon were offenses, degree convicted of first murder and related and sentenced to imprisonment. parties’ life respective As of the time the briefs were appeal, custody submitted this Robelos was in Puerto Rico. Ortiz arrested, pleaded guilty, was and testified for the Commonwealth at Roman, participate killings, trial. who did not charged. was not matter, exchange testimony plea for his in this he entered into a agreement in gave another case. Both Roman and Ortiz statements police implicating Appellant shootings. in the form of had in the authorities Appellant that him in the Var- implicated had persons from who statements proceeded to shootings. The detectives Carrisquilla gas Appellant’s form with necessary biographical complete the McDermott p.m., Detective p.m. 1:00 and 4:30 input. Between charges about the on occasions Appellant several informed him, against bring prepared that the Commonwealth him in the had said about him what Roman and Ortiz and told regarding respectively to the they had made statements occasions, last of those shootings. apparently On statements Appellant showed Detective McDermott p.m., had At about 4:50 given. and Ortiz Roman Carrisquilla; did not shoot McDermott that he told Detective death; that shot for her he that he did not want to be blamed straight by only Vargas; and that he wanted set the record *11 Appellant making a Detective McDermott advised statement. statement, given his he had to be that before he could make gave Appellant the warnings. Miranda Detective McDermott acknowledged and warnings, Appellant which appropriate waived, McDermott then orally writing. both and in Detective question and answer form. Appellant’s took down statement grounds on the suppress moved to the statement Appellant unlawfully by failing conducted themselves him had rights telling him Miranda that others give his when right by denying him his implicated shootings, him the had The trial court denied the attorney to the he retained. unsolicited, motion, “volun- was holding that the statement what response police telling [Appellant] he tary Appellant as being charged why”; with and that as soon statement, Mi- willing indicated that he was to make effectively warnings given; randa and that counsel rights, including right his Miranda his have waived (Trial Opinion at 13- present being questioned. while Court 17-18). 14, of a govern our of the denial
The rules that review determine whether suppression motion are well-settled. We supported by the record findings the court’s factual are are correct. legal conclusions drawn from them whether the 428 Cortez, 529, 111,
Commonwealth v.
112(Pa.),
507 Pa.
491 A.2d
denied,
950,
349,
cert.
474 U.S.
106 S.Ct.
As a
may
statements,
not use
inculpatory
exculpatory,
whether
or
stemming from a custodi
al inteiTogation of a defendant unless it demonstrates that he
was apprised
right against
of his
self-incrimination and his
Miranda,
right
444,
to counsel.
U.S.
L.Ed.2d 297 the United Supreme States Court extend ed the definition to the “functional equivalent” of express questioning, stating:
We conclude that safeguards the Miranda play come into person custody whenever a subjected express either *12 questioning equivalent. or its functional say, That is to the “interrogation” term only under Miranda refers not to express questioning, any but also to words or actions on the (other part police of the than normally those attendant to custody) police arrest and that the should know are reason- ably likely to an incriminating elicit response from the suspect. portion The latter of this pri- definition focuses marily upon perceptions suspect, the of the rather than police. intent of the This focus reflects fact that the safeguards Miranda designed to a suspect vest
429 custody protection against with an added measure of coer- police practices, regard objective proof cive without of underlying police. practice police intent A that the reasonably likely know is an incriminating should to evoke suspect from a response interrogation. thus amounts to But, police surely since the cannot be held accountable for actions, unforeseeable results of words or their interrogation only definition of can to words or extend they part police actions on the officers that should have reasonably likely incriminating known were an elicit response. 300-01,
Id. at 100 1682 (emphasis original)(footnotes S.Ct. omitted). Supreme Court has that Innis not place indicated does police prohibition informing under a blanket from a sus-
pect
investigation
about the nature of
or
the crime under
relating
charges brought against
about the evidence
to the
Roberson,
675,
2093,
him.
In Arizona v.
108 S.Ct.
U.S.
(1988),
suspect
The test for the voluntariness of con validity totality fession and the of waiver looks to the surrounding giving circumstances of confession. Com Jones, (1996). monwealth v. 546 Pa. 683 A.2d Some of the factors to be considered include: the duration and interrogation; physical psycho means of the defendant’s state; detention; logical the conditions attendant to the interrogation; and during attitude exhibited any may powers other factors which serve to drain one’s of suggestion resistance to and coercion. Id.
Finally,
person
we have determined
accused of
already engaged
may,
who has
counsel
with full
crime
counsel,
knowledge
rights
of his
but in the
absence
effec
tively
right
present
waive his
to have counsel
while he is
Hall,
questioned by
police.
We turn first to that court’s which it Appellant’s held that statement was admissible because was Appellant’s spontaneous, voluntary response to Detective regarding charges McDermott’s remarks the basis Implicit ruling faced. the trial court’s was its rejection Appellant’s contention Detective McDermott provided warnings making should have Miranda before those they interrogation inasmuch as within Innis’ remarks meaning. ruling. in so We trial court erred that the
We conclude
were intend-
McDermott’s words
no doubt that Detective
have
*14
found,
This does
informational.10
ed,
court
to be
as the trial
and actions
mean, however,
words
that
the detective’s
not
incrimi-
likely to elicit an
“reasonably
could not also have been
such,
the
and as
constituted
Appellant,
from
nating response”
that
express questioning
of the
equivalent”
“functional
Innis, 446
U.S.
“interrogation”
as
Court defined
Supreme
must,
focusing as we
say,
That is to
at
10. testified as follows: By the trial court: him], against you you Q: hadn't told him of the evidence [When either, anything you? had asked No, basically We him what the case was and [told] A: Your Honor. what the warrant was about. essentially you probable Q: within the So tell him what cause is warrant? A: Yes. implications people Q: or whatever? That included some other A: Yes. (N.T. 180-81). 7/30/99 Concurring Dissenting Opinion regard It is in this Majority Opinion. By we conclude no means do misunderstands concerning charges declaratory by police that all statements officers support brought against suspect or the evidence that them that are interrogation purposes. equivalent for Miranda are the functional Rather, per it is our Nor do we articulate se rule to that effect. case, given particular in a words or position that the circumstances suspect relating charges a faces part on the to the actions information, against may only impart gathered him not or the evidence may satisfy but also the Innis test.
Q. him you question Did intend to about this incident when you brought him down from prison processing were him for the arrest? procedure every they
A. It is the with defendant. If same willing regard are make statement with to the incident they being for, certainly willing are arrested we are it take down.
[*] [*] [*] Q. you people But did tell him what some of the other . involvement; about saying
involved [his] case right? people A. told him and that We there were other arrested people cooperated being several other the matter he was implicated. :
[*] [*] [*] Q. purpose try get You didn’t him that for to and the tell that, him say something you respond you? to to and to did During thorough investigation [Appellant] A. if wants to action, sure, my make statement about his that would be intention, talk him to about the case.
(N.T. 180). 178, at 7/30/99
By defense counsel: Now,
Q: you isn’t it a fact that going telling were and said, him people what these other had so that he would amake statement? hopeful
A: I was that [Appellant] give would a statement did, admitting yes. to what he
Q: why you That is kept going telling and him what the said; people right? other had is that reasons, A: yes. That is one of the (N.T. 71). at 8/2/99
Thus, we conclude that when Detective McDermott began informing Appellant implicative statements that him, Roman and had Appellant subject Ortiz made about was interrogation. so, ed to a custodial doing Before Detective
433
rights.
his
Common
Appellant
read
should have
McDermott
(1983).
311,
Chacko,
571,
By
A.2d
500 Pa.
wealth v.
willingness
his
announced
waiting
until after
McDermott
warnings,
Miranda
Detective
provide
confess to
Miranda,
at
384 U.S.
teaching.
Miranda’s
See
breached
rule,
Miranda’s
aimed
1602. This is because
product
an individual makes
insuring
any
statement
choice,
prophylactic
its intended
can have
his unfettered
and understood before
only
warnings
if
are received
effect
commence.12
pressures
interrogation process
Nevertheless,
Appellant’s present
we find no merit
Miranda,
conduct, which violated
claim that the detective’s
rights
subsequent
his
waiver
tainted
invalidated
see,
Chacko,
e.g.,
prior precedent,
statement.13 Under our
holding
keeping
prior
in Common
12. This conclusion is in
with our
Mercier,
(1973). Although
v.
451 Pa.
A.2d and more under the United States Elstad, in Oregon v. Supreme 298, Court’s decision 470 U.S. 1285, (1985), 222 105 S.Ct. 84 L.Ed.2d it not does follow to a Miranda violation is suspect subject inevitably who was from waiving rights confessing disabled his he has after requisite warnings. received the Elstad, the Court considered whether Miranda required
suppression of a properly
prior
warned confession
of a
because
unwarned admission.14
began by rejecting
The Court
doctrine,
proposition
poisonous
the “fruit of the
tree”
which in
of Fourth
jurisprudence
the context
Amendment
requires
or
the exclusion
obtained as a
confessions
result of a constitutional violation
purged by
unless
interven-
taint”,
ing
“primary
applies
events of the
to violations of the
Miranda decision. Id. at
306,
105
1285.
S.Ct.
The Court
prohibits
observed
the Fifth Amendment
by
use
in
of compelled testimony.”
prosecution
“only
its case in chief
306-07,
Id.
(emphasis
original).
1285
The Court
then noted that Miranda can be violated even in the absence
of a Fifth
The Court stated: “Mi-
infringement.
Amendment
randa’s
preventive
provides
remedy
medicine
even
defendant who has suffered no identifiable
constitutional
472,
However,
(1978).
Baylis,
Commonwealth v.
477 Pa.
we will address this issue. Commonwealth v. 541 Pa. 1310, denied, (1995), A.2d cert. 516 U.S. 116 S.Ct. (1996). L.Ed.2d 859 opportunity clarify scope We take Appellant's this the narrow Appellant’s argument claim. makes no mention of the unwarned he admissions made to Detective McDermott when he indicated his give supra, page desire to a statement. See 400-01. The Common- jury wealth did not seek to admit these admissions at trial. The heard them, however, repeated response when Detective McDermott them in questions posed by Appellant's to him defense counsel. observed, supra As we see n. the unwarned admissions prior giving figure argu- made his warned statement do not in his Instead, Appellant essentially complains ment. about the Common- Nonetheless, questioning. principles wealth's unwarned the Su- preme legal significance Court articulated Elstad as to the of a precedes Miranda violation which a warned confession admitted in the broad, prosecution's provide evaluating case are a framework for Appellant’s analysis along claim. We therefore conduct our the lines set forth the Court in Elstad. *17 that Miranda, statements unwarned harm”, since under Fifth meaning of the Amend- voluntary within otherwise 307, Id. at 105 S.Ct. from evidence. must excluded ment be therefore, by view, “if are made errors 1285. the Court’s administering prophylactic officers law enforcement ir- the same they should not breed procedures, Miranda Fifth infringement of the as consequences remediable In this Id. at Amendment itself.” provided: regard, the Court that a Miranda to hold of
It is an unwarranted extension unaccompanied warnings, to administer the simple failure or circumstances calculated by any actual coercion other will, ability his free so suspect’s to exercise undermine the voluntary subsequent that a investigatory process taints the for some indeterminate waiver is ineffective and informed period. Thus, “[tjhough Miranda re- that
Id. the Court concluded suppressed, the must be quires that the unwarned admission turn in should these admissibility any subsequent of statement knowingly and voluntari- solely on it circumstances whether ly Id. made.” rule, bag” of to the “cat out
The Court next turned to conclude had used some courts which been in a form of resulted subtle giving of an unwarned statement ability subsequent impaired one’s lingering compulsion In dispos- voluntary rights and statement. make a waiver “[tjhis notion, has stated that Court ing of this the Court impact guilty of a secret psychological never held voluntariness compromises or qualifies compulsion state waiver”, id. at 105 S.Ct. informed subsequent that: and concluded obtaining improper or tactics deliberately coercive
absent statement, suspect has made mere fact that a the initial presumption not warrant a an admission does unwarned of Miranda subsequent A administration compulsion. voluntary but un- suspect given who has warnings to warned ordinarily statement should suffice to remove the *18 precluded conditions that admission of the earlier statement. Id. at 314,105 S.Ct. 1285.
Finally, purposes of determining whether warned made after Miranda violation statement voluntary, was and is, admissible, therefore the Court cautioned the courts not to standard, establish a fixed such as requiring passage of events, instead, time or a in break but to look to all of the surrounding circumstances. The Court instructed: rule,
Far establishing rigid from we direct courts to avoid one; there is no warrant for presuming coercive effect where suspect’s inculpatory statement, initial though Miranda, in technically violation of voluntary. was whether, fact, inquiry relevant the second statement was voluntarily also in any made. As such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of respect conduct with to the suspect evaluating of voluntariness his statements. The fact suspect that a speak chooses to being after in- is, course, rights formed of his of highly probative. (footnote
Id. 318,105 omitted). It to apply principles remains these to this Looking case. totality circumstances, at the we conclude that Appel- initial, lant’s unwarned admissions regarding his involvement shootings statement, desire make a although the of a Miranda subject violation, voluntary within the Likewise, meaning of the Fifth Amendment. Appellant’s sub- sequent, warned confession voluntary, was the result of his free rational choice. Nothing about the environment in Appellant which found himself or in police’s manner was oppressive. Appellant argue, does not nor would the record contention, support the that the subjected Appel- authorities threats, intimidation, deceit, lant to improper inducements or deprivation any 'at point during interrogation. his custodial Moreover, there is no evidence even to suggest advantage authorities took Appellant’s unwarned admisr pressure sions to him into speaking further. Appellant’s complaint spent in single, unsubstantiated that the time he room could not interview have been shorter does suffice to establish coercion.
Further, that Appellant’s rights we conclude waiver of belated, knowing, voluntary, and intelligent. Though reading Appellant’s rights was thorough. Appellant was in the Miranda experienced procedure, and was alert and throughout interrogation. fully coherent he under- That rights freely stood his clearly chose waive them is by the Accordingly, Appel- evidenced record. we hold of Miranda rights lant’s waiver was valid. We therefore reject Appellant’s claim his was inadmissible statement McDermott’s conduct. because Detective argues that his should further statement *19 suppressed right have been because it violated his to counsel.15 Appellant police claims that the knew or should have known that had engaged attorney he an in with all of connection 30, charges 1997, on obliged he faced October and were notify attorney that Appellant transported when was from prison Building. to the Police Administrative First, fact, claim
This
also fails.
a
as matter
not
police
record does
establish that the
had actual or con
knowledge Appellant’s legal representation
structive
in this
addition,
case.
In
the evidence does not show that the attor
ney
appai'ently represented
who
in
Appellant
connection with
23, 1997,
the crimes for which he was
September
arrested on
30,
had also
retained as of
present
been
October
1997 for the
retained,
assuming
attorney,
offenses. Even
that the
had been
15. In
claim, Appellant
upon
with
connection
this
calls
both the Fifth
right
and Sixth Amendments for the
to counsel.' Our careful consider
it,
argument
support
ation of his
and of the case he cites to
Common
516,
denied,
(1991),
Santiago,
wealth v.
528 Pa.
438 notify him. obligation under no that his request silent nor right his to remain
did not invoke Moreover, Appellant questioning. lawyer present be observed, recog- the law to counsel. As we right waived his may, coun- representation a who has nizes that defendant absence, presence during right his to counsel’s sel’s waive Thus, Hall, A.2d at 197. we police. questioning mo- properly Appellant’s court denied that the trial conclude suppress. tion to trial that the court erred
Appellant also contends prose engaged his claim the Commonwealth rejecting during closing its misconduct on numerous occasions cutorial of a trial phase of the trial. Our review argument guilt in the prosecutorial a claim of misconduct reject court’s decision its Id. at the trial court abused discretion. limited to whether claim, our is focused on considering this attention trial, a of a fair not deprived whether the defendant 549 Pa. Washington, v. perfect one. Commonwealth denied, 955, 118 (1997), cert. 524 U.S. A.2d (1998). 141 L.Ed.2d part every prosecutor’s
Not
unwise remark on
Indeed,
relatively
the test is
constitutes reversible error.
Hall,
Generally speaking,
Appellant argues first the Commonwealth closing in its Pabon’s confession properly used co-defendant’s Roman, of its wit credibility George one bolster the nesses, Appellant him. The comment that finds against as is: objectionable [Pagan] you and think of
You think of and [Centano] corroboration, says weapons, two George he sees [Roman] .45, AKs, Mr. you but when hear two then he sees the me, confession, says, yes, my I had .9 with that’s Pabon’s he why says weapons. he three
(N.T. 78-79). 8/4/97, argument why Appellant’s
It is difficult to understand from prejudiced prosecutor’s he this comment him. The believes remarks, context, when taken refer the Commonwealth’s Moreover, if against Pagan. case Centano and even passage Appellant, is do not interpreted referring to we see negated jury’s ability how it would to render a true have Lastly, jury, and fair verdict. the trial court told the both at case, beginning arguments and at the end of the made evidence, by cautionary counsel are not instruc- issued jury permitted tion that advised the that it was not to use this co-defendants, against any of an instruction statement Pabon’s Jones, presume jury which A.2d at we followed. 504. Appellant’s second claim of misconduct is that prosecutor in closing his referred to facts not in evidence.16 Appellant following passages: takes issue with the guys] drug Guys
[These are abusers. use cocaine and use cut, down, bring way heroin for the it the same some guys get high, they so can normal. be (N.T. 76). 8/4/99
Two which military weapons designed only AKs are for one thing, people, hunting, to kill not for it is to kill. A .45 rightly argues particular objection The Commonwealth lhat this co-defendants, Appellant’s made one did not join objection. Ordinarily, in this we would deem this claim waived. (1975). Davenport, Commonwealth v. 462 Pa. 342 A.2d 75 n. 4 it, We will waiver doctrine. nonetheless address under our relaxed See supra n. 11. *21 military weapon
not It to kill hunting. used is used millimeter, military A .9 has switched people. the American Why? from .45 to .9 millimeter. You can handle the round did, people, they and it is to kill that’s what better made this, kill you when look at I wanted to them. I wanted to kill them.
(N.T. 81). 8/4/99 Appellant’s complaint
This claim likewise lacks merit. by no support there was evidence to these comments is belied use, drug prosecutor’s concerning the record. The remark specifically testimony cocaine heroin referred gave by Roman when he was cross-examined for one counsel Appellant’s of prosecutor’s co-defendants. The. comment military background about the of AK-47 was on the based testimony by that a expert ballistics called the Commonwealth gave weapons night at trial. His observation that the used the shootings sport fairly not for from are was inferred testimony of that expert regarding operation same Moreover, firearms. asked to do so counsel when defense defendant,' jury for another trial court instructed the disregard any argument with com- regard particular these ments was not based bn the evidence. following passage next contends that from the
prosecutor’s closing improper because it inflamed the passions jury speculation and invited on facts not of record:
Think you how the bullet went see the distance. back, [Carrisquilla’s] through lungs, through spine, her her through gets caught her aorta and then there. Think of that and think of got up Tonya when Miss Pene held her, doing holding what is she as a mother? She her holding baby. stomach. She is out coughing her She is blood, they that’s what did. You them. Look at them see there, they they as that’s (Indicating). smile what did. and, you goodness, think of that thank When child at least May birthday 30th grandpar- he survived. is his and as the say happy birthday, they thinking my girl ents are little left sister, parent, 30th, as a feeling so what a to have May *22 they did and that’s what birthday. My baby gone, is happy They did it because protect society. it to they didn’t do they and when money, that is what did they wanted more Paula, in testified, baby her who her you think of a witness in gets she shot has to run home and arms and she head, baby up like this? holding if her what she were (Indicating). how, Pene, Think of about Miss she sees the shots.
How for your you hurt for child and will die parent, you a feel boy sticking him taking three-year is a old them. She did, car, they so let’s that’s what gutter, between they are not liars. you talk about these liars and realize (Indicating).
(N.T. 69-70). 8/4/99 fairly commenting on the evi- prosecutor
Because the at trial and on the by dence introduced the Commonwealth passage, in this we that could be drawn therefrom inferences A medical examiner reject also this contention error. Carrisquilla’s body. path through as to the bullet’s testified by Bystanders killings who or who were shot witnessed steps they stray they as to what saw and what bullets testified noted, or to As we have took to save themselves assist others. unpleasant. trial is its nature Commonwealth homicide (1998). 346, 313, This one was Henry, v. 550 Pa. 706 A.2d exception. no passage improper that this
Appellant further states Appellant is including impact victim evidence.17 Because only complains that of the specific, not more we can assume he May 30th and its effect prosecutor’s reference the date may parents and child. the comment Carrisquilla’s on While in the intemperate, fleeting, it was when viewed have been forty consists of some closing argument context of a that if it of such pages transcript. Even satisfies definition evidence, prejudice not so as to the remark was extensive capital sentencing impact is defined in the statute as 17. Victim concerning impact "evidence the victim and the death 9711(a)(2). § family 42 Pa.C.S. victim has had on the of the victim....” jury point to the it could not render true and fair Fisher, 558, verdict. Commonwealth v. 559 Pa. 741 A.2d (1999). Further, jury the trial court instructed the evidence, its decision had to upon sympa- be based on the not thy surrounding or the circumstances Carrisquil- the birth of la’s son.
Last, relying on
our decisions
v.
Commonwealth
(1983)
Tann,
500 Pa.
In the a participant in a racial violent confrontation, was tried for murder. The Commonwealth Hill, Joseph called Patterson and Keith two in participants the violence, testify against to Tann. Hill Patterson and had plea agreements Commonwealth, entered into with the obtain- leniency ing exchange trial, in for testimony. their At Tann’s the attorneys represented Commonwealth also called the who Hill testify Patterson and to about plea agreements. attorney Patterson’s testified that Patterson had been advised rights self-incrimination, of his Fifth Amendment against but agreed had to rights waive those and testify at trial. Hill’s “ attorney in exchange testified that testimony, ‘his [Hill’s] testify night what he saw on in question and telling the truth there no charges any [would] be kind ... brought him....’” against Id. at 327 (emphasis original). added in Tann was convicted of degree third This murder. court granted reversed and Tann a trial. Finding new the testimo- ny attorneys of the and highly prejudicial, irrelevant we that lawyer concluded the failure of Tann’s object to testimony was ineffective assistance of holding counsel. Our premised principle on the likely it is where jury will associate witness with the defendant and the episode giving criminal charges against rise to the the ac- cused, that should placed witness not be on the stand- for the against self- privilege him exercise his having purpose stated: Id. at We jury. before the incrimination Com- pertains where the prohibition same believe the We jury the fact to call to the attention monwealth seeks in the witness, with the accused associated that a who was his charges, has waived to the criminal activity giving rise against self-incrimination rights Fifth Amendment the truth. witness stand to tell taking the this case, use of present In the Commonwealth’s infer that jury to only tactic could steer the unwarranted rights Fifth Amendment ... waived their its witnesses since testimony, testi- self-incriminating [their] gave willingly entirely mony was truth and believable. (footnote omitted) original). (emphasis
Id.
guilty of
Bricker,
and found
was tried for
the defendant
murder,
to death. The Common-
and sentenced
degree
first
included the testimo-
against
defendant
wealth’s
Rossi,
witnesses,
Kellington and Charles
of two
Charles
ny
At the Common-
agreements.
pursuant
plea
who testified
plea agree-
trial
had allowed the
request, the
court
wealth’s
during its deliberations.
jury
out with the
to be sent
ments
Tann,
trial court
that the
this court determined
Guided
doing
so. We observed
reversible error
committed
Kelling-
obligated Rossi and
plea agreements
language
truth,
of law enforce-
signatures
and that the
ton to tell the
*24
agree-
the
documents that formalized
officials on the
ment
for
support
of their offices as
“placed
imprimatur
the
ments
the
Kellington
telling
Rossi and
proposition that
the
Bricker,
We
(emphasis
original).
Turning Appellant’s claim regarding the Commonwealth’s Ortiz, questioning of the record shows that prior to the trial, commencement of Appellant joined in a co-defendant’s motion in limine to bar ’the Commonwealth from asking Ortiz whether one of plea agreement the conditions of his was to (N.T. 22-23). “testify truthfully”. at The trial court 7/26/99 granted the motion as to testimony, Ortiz’s direct but allowed possibility of an appropriate inquiry in regard this on redirect.19 When Ortiz was testifying on direct that he had pled guilty, prosecutor asked him whether return for “[i]n deal, [your] you did to testify truthfully have in this case?” (N.T. 137). however, question, unan- 7/28/99 went swered because trial court sustained defense counsel’s objection.
itWhile
is clear that
question
violated the trial court’s
ruling
limine,
on the motion in
agree
we cannot
with
that it rose to
bolstering
that we have
denounced.
our
view, this
question
prosecutor
one
from the
to Ortiz served
place
neither to
the Commonwealth’s official sanction on his
18. We note that the trial
objection
court sustained an
question,
to the
phrasing,
based on its
and that
jury
the trial court had instructed the
questions
ignore
are
any
not evidence and to
matter to which an
objection was sustained.
19. The motion in limine and the
ruling
applied
trial court’s
also
to the
Commonwealth’s examination of Roman.
*25
credibility nor
him
authority.
cloak
with the Commonwealth’s
Bricker,
Finally, Appellant following claims that state prosecutor’s closing contrary ments were also to our teaching regarding improper bolstering: years
Think of got. Twenty forty the deal [Ortiz] I him gave judge driving what in front of that car. great What a Think you you deal. at this moment that going are to start serving twenty years your for what life did. is paying he He for it or he could taken the have gamble gone to trial lawyer, but when he sat with his you lawyer saw there. said, baby, sat down and got
She this is what we to do you going says okay, because are not to beat this and he took Twenty forty, he the deal. that means he serves twenty years of his life before he has a Board. Parole He cannot come out. He cannot come out.
(N.T. 70). at 8/4/99
According to Appellant, passage jury this with left the two impermissible attorney usurped inferences: that Ortiz’s had role, jury’s determining that all of the defendants were guilty; and that was “telling lawyer Ortiz the truth” because “told him to take the deal to (Appellant’s save his life.” Brief 17). assertion, Beyond this Appellant develop does not his argument further.
This claim also lacks merit. The inferences that are, view, contends arise out of this passage in our unreason- Moreover, able. we can discern no basis upon which to prosecutor’s conclude that impermissible words was vouch- ing by credibility. the Commonwealth for Ortiz’s
Finally, having Appellant’s concluded that claims for merit, must, relief are without we in compliance with our statutory duty 9711(h)(3), § under Pa.C.S. affirm the sen tence of death unless we determine the sentence was the product factor; of passion, prejudice any or arbitrary other or the evidence fails to support finding of at least one *26 record, conclude Upon factor. review of the we
aggravating product passion, of that of death was not the the sentence Rather, it any arbitrary factor. was based prejudice or other at trial. We also conclude upon properly admitted support finding to of the that the evidence was sufficient by Appellant paid person factors that another aggravating 9711(d)(2); victim, §§ of 42 Pa.C.S. killing for the risk of harm to another Appellant knowingly grave created offense, 42 to victim of the Pa.C.S. person addition 9711(d)(7); felony significant history had a of Appellant § involving the or threat of violence to the convictions use 9711(d)(9); § and that had person, 42 Pa.C.S. been before or at the time of the convicted of another murder either 9711(d)(11). issue, § Pa.C.S offense of Accordingly, we affirm the conviction murder the first imposed upon Appel- degree and the sentence death lant.20 concurring dissenting files a
Justice CASTILLE opinion joined by Justice NEWMAN. Justice,
CASTILLE,
dissenting.
concurring
Majority Opinion
every respect except
I
for the
join the
majority’s
Detective McDermott breached
discussion whether
appellant
Mi randa1
when he informed
of the evidence
against
advising appellant
him without first
of his constitution
view,
my
conduct did not consti
rights.
al
the Detective’s
.
interrogation
purposes
for Miranda
and therefore no
tute
Furthermore,
I
warnings
required
point.
at that
believe
and Rhode Island v.
majority
that the
errs under Miranda
Innis,
1682,
(1980), in
the intent of
(footnotes omitted)
Innis,
301,
request attorney, an remain or follow some other Indeed, strong argument course. á could be made the police should encouraged, be communicate the basic evi- supporting charges against suspect. dence As the Appeals California Court of has observed: policy The entire thrust of the Miranda is to ensure that a defendant’s not upon decision confess or is based free intelligent appraisal position. may of his This appraisal be better if made the defendant aware the nature possession extent of evidence or information in police. 473, 480, Cal.App.2d v. 79
People Sunday, Cal.Rptr. 752 (1969). hand, a suspect On the other to hold incommunicado a prolonged period informing "without him of basis for seen, circumstances, charges could be under certain than interrogation recognized more' coercive the constructive by Innis. expressly
Numerous Circuit Court decisions have
declined
declaratory
by police
extend Miranda’s reach to
statements
concerning
against
suspect.
officers
the evidence
For
Cir.1989),
Estelle,
(9th
example, in Shedelbower v.
449 defendant re- after the Noting that the officer’s statements incriminating nor an attorney not call for elicit quested an “did comments that would type not response” and “were incrimi- spontaneous some encourage to make [the defendant] com- remark,” that the the Ninth Circuit held nating Miranda interro- equivalent of were not the functional ments Id. at 573. gation. Moreno-Flores, v. 33 F.3d recently, in United States
More defendant, (9th Cir.1994), FBI informed the agent 1164 an silent, right to remain after he had invoked his pounds 600 of cocaine approximately Government had seized Citing, inter and that defendant was in “serious trouble.” alia, Shedelboiver, the Ninth Circuit held that supra, interrogation did not constitute under Mi agent’s statements concluded, Rather, agent government randa. court of circumstances which would merely “advised [the defendant] judgment.” of his More intelligent contribute to an exercise no-Flores, F.3d at 1170 n. 5. 33 Innis recognized Fourth Circuit has also “the interrogation capture is not so broad as to within
definition of
by police
declaratory
Miranda’s
all
statements
officers
reach
charges against
suspect
concerning the nature
relating
charges.”
to those
United States v.
the evidence
(4th
denied,
Cir.),
cert.
503
Payne, 954 F.2d
U.S.
(1992).
Payne,
the defen
L.Ed.2d
following
drug
his
on
right
dant invoked his
to counsel
arrest
charges.
being transported
an office of the
While he
Service,
agent
Marshal
an FBI
told the defen
United States
gun
at his
dant that law enforcement had “found
home.”
my
responded,
just
protection.”
“1
had it for
The defendant
ultimately charged
weapons
with
offenses
The defendant was
drug charges.
argued
in addition to
He
that his statement
grounds that it
suppressed
should
been
at trial on the
have
interrogation
rights
from
in violation of his Miranda
resulted
right
his
to counsel. The Fourth
Sixth Amendment
not
disagreed, noting
agent’s
that the
statement was
Circuit
Moreover,
sought
required
response.
or
the court
one
subjected
compelling
was not
noted that
the defendant
*29
influences, psychological ploys,
questioning.
or direct
Accord-
Payne
ingly,
court
the
concluded
the
officer’s
“rather innocuous
... did
interroga-
statement
not constitute
tion and should not result
in
sanction of suppressing
the
probative
relevant and
evidence.”
Apparently adopting appellant’s simplistic reasoning, majority appellant “interrogated” by concludes that disclosure of accurate factual information here and fails to Instead, discuss the circumstances of the disclosure. majority exclusively divines, upon focuses what it from this record, cold to have been the Detective’s intention. this regard, majority states it has “no doubt” that Detec- *30 to informational tive McDermott’s words were intended be Nevertheless, concludes, only. majority the this does not that words and actions could not also mean the Detective’s reasonably likely incriminating response been to elicit an have and, such, appellant equiva- from constituted the functional of Innis. express questioning purposes Although lent of majority focusing upon appellant’s “percep- to purports the be regard, tions” in this its discussion is confined to Detective testimony concerning general approach his to McDermott’s investigations subjective majority and his motivations. The that, explained [a]p- to concludes “when Detective McDermott in pellant implicated shootings, telling that had he been [George] [an him what statements Roman individual who sold in drugs appellant participate killings] with but did not in appellant’s accomplices of [Arisbol] [one Ortiz involvement, police concerning had made to his murders] should known that his the Detective have comments reasonably likely [appel- conduct were to evoke an effort on part give lant's to defend himself and his own version of his Majority Op. involvement the crimes at issue.” at 404. majority finds that as much” the Detective “testified when suppression hearing appellant he stated at that if a it “want[ed] to make statement about his action” would be talk him McDermott’s “intention to about the case” when he later stated at trial that “one of the reasons” he told him appellant against about the evidence was because he was “hopeful” appellant give admitting that “would statement concludes, majority summarily what he did.” The then as a law, of that perceived subjec- matter Detective McDermott’s conveyed appellant tive intention —which was never —ren- perfectly his lawful in informing dered otherwise conduct appellant damning of that statements Roman and Ortiz him, equivalent had about made the functional custodial Miranda warn- interrogation, preceded by which had to be ings. majority explains testimony
3. The
never
how the Detective's
trial
pertinent
question
propriety
to the
of this Court’s review of the
of the
it,
suppression ruling.
prior
majority
Since
I
nevertheless
considers
will also consider
it.
matter,
appel-
it
preliminary
emphasized
As a
must be
and,
question
suppression
point
lant also
on
testified
fact,
summary
claimed that the Detective’s
of the
he never
him
him to make his initial incrimina-
against
caused
appellant’s
it
actual
ting
Accordingly,
appears
statement.
from
perceptions
majority
were not as the
divines them
its
testimony about his
reading of the Detective’s
intentions.
laying
majority’s
reading
But even
aside the
creative
I
testimony
get
appellant’s perceptions,
Detective’s
see
judge’s finding
no
trial
was no interro-
error
there
unexceptional
gation
testimony
here. Detective McDermott’s
matter,
that,
if
general
suspect
as a
wants to make a
*31
statement, it
to talk to
suspect,
would be his intention
the
“hopeful”
appellant
that
was
this
would
he
confess when the
him, hardly
facts were laid out to
made his accurate disclosure
“reasonably likely
of factual information conduct that was
to
Indeed,
response.”
an
if
incriminating
elicit
such factual
the Innis standard
satisfy
solely
disclosures
because of the
intent,
holds,
subjective
majority
officer’s
as the
undisclosed
imagine any
involving
then it
is hard to
a
circumstance
factual information that
disclosure of
could not be labeled
Any
“interrogation.”
competent police officer who has arrest-
major
a
that
suspect
“hopeful”
suspect
ed a
crime is
the
“[ojfficers
However,
will
interrogate
suspect
confess.
do not
incriminate himself.” Arizona v.
will
simply by hoping that he
Mauro,
520, 529,
481 U.S.
Considering objective circumstances I not appellant, do believe was communicated McDermott accu- interrogated was when Detective appellant implicated him him that Roman and had rately informed Ortiz First and Carrisquilla Vargas murders. foremost fact, majority, appellant himself ignored is the against him. At the initiated the disclosure of the evidence crimes, was appellant charged was the instant he time with already custody charges. Appellant apparent- on unrelated ly being charged as to what he was with and confused McDermott: why, expressed and he his confusion to Detective your purpose telling Q. What was [Defense counsel]. him? [appellant] people what other had said about *32 why A. He asked me he was [Detective McDermott]. him, being that we had some charged we answered people in that we had other statements from evidence implicating him.
Q. you why being charged? He he was asked warrants, A. When told him we had arrest he was we why being charged initially. concerned over he 8/2/99, Thus, advising appellant N.T. at 70. in that supported by information received from charges murder were enforcement, law persons cooperate who had chosen to with appellant’s ques- nothing Detective did more than answer concerning tions reasons for his arrest. agree
I with the numerous courts which have held tend communications, police that where the defendant initiates the in response equiva words and actions are not the functional in United States v. Thom interrogation. example, For lent as, (7th Cir.1993), 11 F.3d that the Seventh Circuit held interrogated was not the defendant where the defendant a officer to her know the results of his police asked let investigation and the officer later confronted her with evidence which contradicted her alibi. The court noted that “while question may propriety allowing there be some as to the unsolicited information police provide regarding officers to found, they a presents very have this case different situation initiated commu because the defendant herself’ Id. at 1397 (emphasis original). nication. Under these circumstances, held, there was no Miranda violation. court
A number of our sister state courts have reached similar v. Straughter, State results. 261 Kan. 932 P.2d (1997), outstanding juvenile the defendant was arrested on an warrant for auto police theft. The told the defendant that he did not have to talk to them about auto or a theft homicide they currently investigating, case that and the defendant asked, police explained “What homicide?” The that the defen- fingerprints dant’s had in a gun been found on used homi- Innis, Noting police cide near his home. not “under are subject prohibition saying anything blanket from about defendant,” investigation the crime under to a Kansas Supreme response Court held comments in Id. question improper interrogation. the defendant’s were not Franklin, v. State Similarly, at 394. 299 S.C. (1989), police
S.E.2d 911 officer arrested the defendant investigation connection with a homicide and told him that he wanted to advise him of his Miranda rights. The defendant I responded, rights “What do need for?” and the officer replied that it appeared a man had been beaten to death. said, “I ain’t I nobody. The defendant then beat All did was Rodney hold him him.” while beat court held that the response to question officer’s the defendant’s did not consti-
455 equivalent and refused to interrogation tute or its functional suppress incriminating the defendant’s statement. Appeals, in Bowler v.
The District
Columbia Court
States,
(D.C.1984),
held that it
United
Finally, significant I find it that detective testified query why in to to own as to responding appellant’s addition being charged, the disclosure of the basis for the he was charges customary proce- was with here consistent arrest dures: you question to him
Q. Did intend [Defense counsel]. him you brought about this incident when down from the prison processing and him for the arrest? It with procedure
A. is the same [Detective McDermott]. they willing If to a every are make statement defendant. for, regard they being with to the are arrested incident certainly willing are to it we take down.
Q. you they willing give you How do find out if are a you they give statement unless ask them whether want to statement; you you how do do that? you they being charged
A. what with After tell them are they they willing and some of the evidence and indicate are statement, you rights a formal warn him his make then proceed to take the statement. added). 7/30/99, (emphasis express N.T. at 178 Under the language excluding “interroga- of Innis from the definition of “normally tion” or words actions attendant arrest then, custody,” proof this is further Miranda should be inapplicable to routine state- deemed Detective McDermott’s to appellant’s ments made incident arrest. sum, inteiTogation
In I would not find to have occurred him police, booking suspect, merely where the advised charges being lodged against him and then described the where, against -particularly him in some detail— here, appellant by asking police initiated the conversation why being charged. deciding particular he whether police interrogation, pur- conduct is we must remember pose “preventing government behind the Miranda decision: of confinement coercive nature using officials from in an unrestrained given that would not be confessions extract 529-30, Mauro, U.S. environment.” pursuant to actions in this case-which were government and were intended customary procedures non-coercive arrest charges basis of the regarding the appellant to better inform determining whether to him to assist him in against purpose this police implicate not cooperate with the —do part Majority I dissent from the any way. respectfully holding Opinion per erects a se rule which of factual informa Miranda whenever the disclosure violate to the motivated, part, by hope, undisclosed tion is *35 suspect, that he will confess.4 concurring dissenting joins this
Justice NEWMAN opinion.
Supreme Court 8, 2002. Jan. keeping” majority is "in with this notes only “questioning not randa has deemed include been the “functional officials” but also initiated law enforcement express questioning: equivalent” of only not “interrogation” under Miranda refers term [TJhe any words or actions on express questioning, but also to (other normally than those attendant part police custody) that should know are arrest likely incriminating response an from reasonably elicit The latter this suspect. portion definition focuses rather than primarily upon perceptions suspect,
Notes
4. The
notes
its conclusion
Mercier,
holding
prc-Inuis
in Commonwealth v.
451 Pa.
Court's
Mercier, however,
There,
(1973).
inapposite.