*3 NIX, C.J., Before LARSEN, FLAHERTY, McDER MOTT, HUTCHINSON, ZAPPALA PAPADAKOS, JJ.
OPINION THE OF COURT PAPADAKOS, Justice.
This is a reargument of
McGrath,
Commonwealth v.
103,
(1983).
Pa.
The facts underlying this appeal are as follows. On July 6, 1979, McGrath and a companion were apprehended by police after an automobile chase through the streets of Philadelphia. They suspects were in two separate shoot- ings which had occurred at 3:47 a.m. and 6:45 a.m. on that day. The shootings involved the random selection and shooting of three black pedestrians, male of which one was killed and two were wounded by bullets fired from one or and a companion McGrath handguns. caliber large more 7:00 a.m. on the shortly after police custody into were taken lost, chased, been having after shootings of the morning Both vehicles. police several again and chased sighted was insuffi- day the same as there released later men were a crime. charge them with at that time cient evidence Ma- enlisted the United States McGrath Subsequently, at undergoing training basic he was Corps. rine While 5, 1979, Carolina, the Island, September on Paris South Beavers of the Marine police Major contacted Philadelphia him that had a they and informed at Paris Island Corps for homicide and other of McGrath for the arrest warrant agreed and Beavers police Major charges. Philadelphia to the Buford Coun- transmitted that the warrant would be would arrest McGrath which ty Department Sheriffs police arrived. Philadelphia until county jail hold him in the Corps between Marine result of the discussions As a Police, ordered McGrath was Philadelphia personnel (a Commander, Macintyre Lieutenant to his Series report recruits.) to the According consists of 245 to “Series” order, McGrath, him this gave who person testimony McLearned, informed him also Sergeant Drill Instructor “killed some- having Philadelphia that he was wanted that he would have to meet with body people,” or shot Commander, and the Commander, his Company his Series go jail. then and that would legal department, whose testi- Macintyre to Lieutenant reported McGrath hearing by stipula- suppression at the was introduced mony he had tion, correspondence that on the basis as follows: at Paris on the base Legal Division received from and had advised Private McGrath Island, had interviewed had been contacted he, Macintyre, him that Lieutenant a fraudulent enlistment concerning Legal Division in Phila- was wanted McGrath specifics charging outstanding warrant basis of an delphia on the charges. other him homicide and several with interview, was taken following this Immediately Gaskin, Com- Company Captain Walter to the office *5 (A manding Corps Officer. Marine “Company” consists of “series”; five Captain thus Gaskin commanded approxi- recruits.) mately Captain 1300-1500 Gaskin testified that report he ordered McGrath to to his office in response receipt of a memorandum from the Legal battalion Division concerning “possible McGrath’s fraudulent enlistment.” The memorandum mentioned police record, but did not mention an outstanding warrant, and, accordingly, at the time he McGrath, interviewed he knew of nothing warrant or the homicide charges against McGrath, even though Lieutenant Macintyre and other Corps Marine per- sonnel did know of the warrant and charges. reason given for this that, discrepancy was being McGrath’s immediate superior officer, Lieutenant Macintyre received more detailed information from the Legal Division. interview,
At the which Captain Gaskins thought con- cerned a routine fraudulent enlistment matter of which he would have to make a recommendation to the Battalion Commander as to whether McGrath should be retained in the Marine Corps or discharged, the Captain asked McGrath the following:
Q. Private McGrath you’re in here because its been indicated via the Battalion legal office that you’re some of type fraudulent enlistment. It can be any variety reasons. Could past have police record or it could be of child support or any number of matters or reasons why there is a fraudulent enlistment. I am here to help you out and of course refer my recommendation to the Battal- ion Commander concerning retention.
At this time I said you can tell me what it is about that you know of and maybe something you failed to tell the recruiter at the time of enlistment and if you to, want I then can help you based on the information you give me—some advice and what tell the Battalion Commander concerning retention. Notes of Testimony Suppression Hearing (N.T.S.H.) 533.
The Captain did not give McGrath either the Miranda warnings or warnings 31(b) under Article of the Uniform 831,1 are Justice, both of which U.S.C. Code § *6 by military law. required implicat- McGrath Captain’s
In response questions, to the The and Philadelphia shootings. Captain himself ed in the crimi- at McGrattfs present others at the interview testified statements. inculpatory concerning nal trial first further testified that when McGrath Captain Gaskin statement, Lieutenant Dykhuizen inculpatory made his of story, McGrath told his the essence After present. shootings at the had not present was that he was but which in the Drill Captain called Chief trigger, pulled Instructor, Jones, re- Sergeant and McGrath then Master or The Captain, three four times. who peated story “I was concerned “phenomenal,” found the stated: story I say again him to it what he had said asked about it. specific repeated] I him about parts then would ask [He of it story maybe parts the actual twice but different whole three or four times.” N.T.S.H. 543. McGrath entered his Captain also testified that when order, stood at pursuant
office to his McGrath attention indi- spoken testimony unless to. Other speak could interview, of stood stage cated that at a later repeating Although “at ease” his statement. while order, he an to gives expects testified that when he Captain prohibited Compulsory 1. Art. 31. self-incrimination a) may compel person subject chapter any person this to No to any question to answer the answer to which incriminate himself or may tend to incriminate him. b) interrogate, any person subject chapter may request this No to or from, person suspected or a an without statement an accused of offense advising informing the nature accusation and him him first of of regarding any that he does not have to make statement the offense of suspected any by which he is or and that statement made him accused against may a trial be used as evidence him in court-martial. c) may compel person subject chapter any person this to No any military produce before tribunal if make statement or evidence may is not the issue tend to the statement or evidence material to degrade him. d) any person No in violation of this influence, statement obtained from article, coercion, through the use unlawful or unlaw- against may be received a trial ful inducement in evidence him in court-martial. obeyed, also testified McGrath should have be Captain’s that he did not have to answer the ques- known under Justice: tions the Uniform Code “He can fact, As a I had no refuse. matter time reason him but I him if rights help offer asked he wanted me to him. He could have to me had voluntarily explained what didn’t, occurred. If he’d have very said I’d have said well.” N.T.S.H. 547.
Captain Gaskin indicated that when McGrath left his office, instructors, under supervision by drill he was taken holding to a center to transfer await custody (the civilian authorities Buford County Sheriff’s Depart- ment). no specific There were orders given McGrath at movement, time restricting his freedom of but none *7 necessary because “from the time recruit arrives the until time he leaves Paris Island under he’s constant supervision. So there was him at someone with all times anyway.” Captain N.T.S.H. 557. The also testified he that learned of the Philadelphia only arrest warrants after com- the pleting interview with that McGrath and the memo concerning had, “possible fact, in fraudulent enlistment” is, been a Captain “mistake.” That the later became aware that matter McGrath’s was “not a fraudulent enlistment case at all but a warrant.” N.T.S.H. 563.
McGrath’s testimony was consistent the with that of Corps Marine witnesses. McGrath testified that after his instructor, initial encounter with the drill first at which time told he was that he was to going jail Philadelphia because of a he was shooting, Lieutenant Macintyre interviewed or other two three drill One of drill instructors. the instructors read the him charges to and Lieutenant Macin- tyre questioned charges. him about was the He then taken to all of pack belongings his and was told he being that was sent to Philadelphia. Within two of inter- being hours Lieutenant, viewed by the after his packing belongings, Captain McGrath was interviewed by Gaskin. With respect interview, to this McGrath the suppression was asked at hearing, “Were aware you you that had the alternative of to him?” McGrath answered: things
not these explain to it, know, I you had a “No I didn’t. I didn’t understand an 575. McGrath also right say to no to officer.” N.T.S.H. Captain if he did not tell the about testified believed that an go obeying shooting jail the incident would pointed Captain out that Gaskin’s order. When it was order, replied: words were not an Private, Well, says you, as an officer anything I it—I an order at the time. it’s—I consider considered know, life, the you any- no with officers have social like, say to me is or is law thing. they So what word on island. N.T.S. H. 580. me whether, is the circum- Thus, the in this case under issue the admitted surrounding questioning, stances McGrath’s prior to his interview absence Miranda warnings the admission at crimi- Commanding precludes Officer of Common Pleas of Philadel- nal Court proceeding in that statements elicited inter- County, inculpatory phia view. case, Mr. argument the first Justice
Subsequent to Opinion Announcing Judgment authored the Larsen Mr. Roberts in Chief Justice joined by the Court was statement inadmis- inculpatory that McGrath’s holding Philadelphia criminal trial because of failure sible Mr. concurred Miranda give warnings. Zappala Justice result, applicable, agreeing *8 interrogation, custodial being in a stating that addition of enforcement equivalent are the law Military Officers Justice, of Military under the Uniform Code officers his constitu- required were to warn McGrath of therefore Miranda either or the Uniform Code of rights tional under concurred, Mr. also Justice. Justice Hutchinson Military in although he was not actual stating that believed McGrath circumstances,” the under the neverthe- custody “totality court, recognize the comity, less a matter of should the as the of the Justice and decisions Uniform Code of authority that interpreting persuasive courts Act as military Mr. required. Flaher- respect warnings with to the Justice
259
result,
in the
viewed the
ty also
but
military
concurred
a subordinate
superior
officer in
relationships between
generis,
the
to be sui
limit
armed services
would
Justice)
its
Mr.
Nix
case to
facts.
Justice
Chief
(presently
dissented, and was joined by Mr. Justice McDermott in
concluding that McGrath
not in
actual
and that
custody
superior
officer was neither a law enforcement official
acting
nor
as an
agent
law enforcement officials.
Our conclusion on reargument
is that McGrath was the
subject
interrogation
a custodial
by law enforcement
officials, and that the inculpatory
statements made
officer
commanding
as having
inadmissible
been re-
in
ceived
violation of his
rights.
constitutional
privilege against
The
self-incrimination contained in the
Fifth Amendment to the United States Constitution is: “No
person ... shall
compelled
be
any criminal case
be
against
witness
himself.” In
v.
1,
378
Malloy Hogan,
U.S.
1489,
84
(1964),
S.Ct.
In Arizona, 384 U.S. 86 S.Ct. (1966), L.Ed.2d 694 Court, the United States Supreme order to safeguard this Fifth Amendment privilege, held that person custody, prior to any questioning, must be informed clearly that he has right to remain silent and he will anything says court; be used against him must clearly be informed has the right consult with a lawyer to have the him lawyer during with *9 that, will indigent, lawyer if he is be questioning; to him. appointed represent lead, the Supreme the States Court’s
Following
United
Appeals,2 in United States
Court of
United States
(1967),
held
We commend a [Miranda military in the administration of to all involved Arizona] as the of educative undertaking criminal law as well its not violated precepts that are measures see (Id. 444, 86 p. 384 U.S. at pretrial interrogations____ 1612). p. S.Ct. at court, expressed this impression
The initial filed after our first consid opinions through the numerous matter, military only apparently that eration of 31(b) would either have to warnings and that we had Article 31(b) criminal Pennsylvania proceeding, Article to a apply strain” the rule in apply order “stretch and Mi This was erroneous. military. impression rule to the it military in the same manner randa applies officials. all and state law enforcement applies federal Military Appeals created under is a civilian court 2. The Court Constitution, judges, ap- consisting of three civilian 1 of the Article pointed by and consent of Senate. the President with the advice U.C.M.J., highest appellate It is the See U.S.C. 867. § Article cases, military appeal. military is no further there tribunal
261 In opinion matter, regarding our first this Opinion the Announcing Judgment the the Court stated: here “We are not concerned Captain with the failure of Gaskin other Marine Corps personnel give to warnings required by the Uniform Code of Military Jus- tice, 31(b). supra. See note Article 31(b) Article relevant, would be if perhaps dispositive, we were review- ing a military proceeding. Since the instant proceeding civilian, prosecution criminal by a state sovereign, how- Miranda, ever, it is only precedent federal state Miranda applying governs admissibility Miller, See United v. McGrath’s statements. States 261 (McGrath, (D.Del.1966) 442 F.Supp. 109, 110, 504 Pa. [at] 470 A.2d at n.3.” that both Article Court of has held Appeals
31(b)
Miranda warnings
warnings
given
must be
an
fact,
In
accused.
the accused in Tempia
given
Article
31(b) warnings. The Court there held that
warnings
these
as
were deficient
far as
warning
right
accused of his
to
counsel under the
result,
Sixth Amendment. As a
Court of Military Appeals holds that an accused must be
advised of his
Miranda/Tempia right
to
counsel and his
31(b)
Article
right to remain silent. See United
States
Dohle,
(C.M.A.1975).
Obviously, warnings contain right both the to remain silent counsel; and the right highest thus the military court goes further protecting right than the United Supreme States Miranda by going beyond Court require an additional warning. The Military Court Ap peals Dohle, has held this be so in United States v. Therefore, supra. we are concerned only with the thresh question old of whether McGrath received a Miranda warn Thus, at ing all. if McGrath had received but warning 31(b) not the Article warning, under United States v. Dohle that would make his confession inadmissible However, a court-martial. in a criminal trial in Pennsyl vania the confession would be being admissible since ad vised accordance with Miranda would meet our constitu- this Court and United as enunciated standards tional Court. Supreme States Newell, United States v. distinguishes
This is what Common- (9th Cir.1978), relied on F.2d 827 case Circuit, Newell, Ninth Appeals, In the Court wealth. application of the concededly “Newell seeks stated they statements not because exclusionary rule rights but because of his constitutional taken violation of his under law right military in violation they were taken of counsel in court-martial to the assistance regulations *11 proceedings.” law, investigator is on once an military
Under
to
an
represent
has undertaken
attorney
that an
notice
investigation,
ques
further
criminal
military
individual
affording counsel reasonable
the accused without
tioning of
statement
renders
obtained
present
any
to be
opportunity
31(d) of the Uniform Code. Unit
under Article
involuntary
209,
380, 383
24
1 M.S.
McOmber,
C.M.A.
ed States
in a
only appointed
if
(1976). This
true even
counsel
is
also,
investigation. See
and not the case under
related case
2
M.J. 55
C.M.A.
Lowry,
United States v.
beyond
this went
held that
Court
Newell
to
of counsel as it was then
right
assistance
constitutional
Newell,
809. order, not by an person restraint of a (a) Arrest is the offense, directing him as for an imposed punishment limits. Confinement specified remain within certain person. restraint of a physical (b) may An enlisted member be ordered into arrest or commissioned an by any confinement officer order, written, oral or delivered in or person through persons A subject chapter. other commanding officers, officers, officer authorize warrant may petty or officers to order enlisted noncommissioned members of subject or to his authority command into arrest or confinement.
(c) officer, A officer, commissioned a warrant or a civilian to this or subject chapter to trial may thereunder be ordered into arrest or only by confinement a command- order, officer ing authority subject, to whose he is by an written, or oral person delivered in or another commis- sioned officer. The authority persons such into order arrest confinement not be may delegated.
(d) No person may be ordered arrest or into confine- ment except probable cause.
(e) Nothing in this article per- limits the authority sons to apprehend authorized offenders secure custody alleged of an offender until proper authority may added). be notified. (Emphasis Thus, an officer may person any arrest an enlisted time probable Therefore, he finds cause for such an arrest. *12 as as concerned, far Private was Superior Officers who questioned him were offi law enforcement cers.
Furthermore, there can be no in doubt that McGrath was when custody questioned. theAs Court of Military Appeals in stated Tempia:
The accused, test to applied be is not whether the technically, but, that, has been taken into absent custody, whether he has been “otherwise of his deprived freedom of in significant Miranda, action any way.” at supra, Here, 444. page the accused was clearly summoned for interrogation. Had he obeyed, he would have un- doubtedly penalized to subjected being a himself for Code, 86,10 886; to repair. supra, Article USC § failure Courts-Martial, States, 1951, Manual for para- United 264 In unlike military, life, suspect 127b. civil
graph
required
questioning
be
to
and submit
to
report
may
or
process.
without
warrants
other
regard
legal
quite
one
say
that situation to
It
realities
ignores
of
appear
signif-
has not been
interrogation
ordered
for
v.
People
action. See
icantly deprived
his
of
of
freedom
363,
(1967).
Cal.Rptr.
57
Here, McGrath,
ques
report
who was ordered to
Officer,
at atten
by
Commanding
his
had to stand
tioning
speak
spoken
several
his
when
superiors,
only
tion before
orders,
to,
their
was
expected,
always,
and was
as
obey
custody
Tempia
under either
Chacko
clearly
he had to
only
reasonably
Not
did he
believe that
standard.
questions,
and answer
his freedom of
superior’s
remain
Commanding
Officer’s
actually
action was
restricted
here was
report.
degree
custody present
order to
cases we
certainly greater than that which existed
other
question.
involving
have decided
a Miranda
297, 306-307,
In
Pa.
Meyer,
Commonwealth
(1980),
interrogation
that a
A.2d
we held
custodial
“he
told
suspect
trooper
existed where
a state
*13
scene of
accident.
would have to wait” at the
a traffic
Chacko,
custodi-
In
id. we held that a
Commonwealth v.
suspect
prisoner
where the
was a
interrogation
al
existed
was
by
a correctional institution and
asked
a member of the
if
prison
stabbing
staff
he was “involved in the
incident”
he
which
we
subsequently tried. There
made it
clear
it is not
questioner
that
the state of mind of the
that
significant
determining
factor
suspect
whether a
has
been the
of a
subject
interrogation,
custodial
but the rea-
Here,
sonable
of the suspect.
belief
it was reasonable for
McGrath to
believe
when he was
to report
ordered
his Commanding Officer and had to stand at attention for at
interview,
least
part
could
leave without
sanction. Additionally, when McGrath was
by
told
at least
Superior
two of his
Officers that he was wanted for murder
in Philadelphia
he would have to
report
Officer,
Commanding
it was
for him to
reasonable
believe
that he
questioned
would be
the charges
about
Commanding Officer. Berkemer v. McCarty,
420,
468 U.S.
S.Ct.
Thus, least, at the under very the “reasonable belief” of test, the suspect McGrath was clearly custody when the inculpatory statement was elicited.
Captain Gaskin testified questioning that was aon “routine” fraudulent enlistment matter so he could “make recommendations” Base In Commander. ac- tuality, fraudulent enlistment is a court-martial offense. Court-Martial, Manual for pertinent states in part: IV.
Part Punitive Articles 7. Article 83—Fraudulent enlistment appointment, or separation
Any person who ...
(1) Procures his own appointment enlistment or in the armed forces false knowingly representation or delib- erate qualifications concealment as to his for that enlist- ment appointment pay and receives or allowances thereunder ... shall be punished as court-martial may direct.
266 punishment. Maximum
(e) Dishonorable appointment. enlistment or Fraudulent allowances, pay and all discharge, forfeiture of added). (2) two (Emphasis years. confinement for from his stemming is clear that statements any It fraudulent concerning made a that McGrath interrogation would have been military or other offenses any enlistment him because against in a court-martial inadmissible Mi him Officer to read Commanding of his failure Dohle, 1 v. States randa/Tempia rights. United In M.S. Appeals held that: (C.M.A.1975) Military the Court 223 interrogates— to the code subject a person where ... from an accused requests a statement or questions —or questioner position has some suspect over whom aware, suspect or of which accused authority in or must be advised accordance with suspect accused 31. Article Military later refined the Court of holding was
This (C.M.A. v. Duga, United States in 10 M.S. 206 Appeals before Article 1981), pre-requisites which two formulated and Miranda 31(b) will apply: acting code (1) subject to the was questioner whether a only personal in his had a capacity inquiry official an motivation; (2) questioned per- person whether the con- involved more than a casual inquiry ceived that the versation. standard, should have re- under either
Clearly, Miranda/Tempia warning. He a was ordered ceived questions to answer report Commanding Officer investigation. Captain an Gaskin testi- regarding official As in an official acting capacity. fied compelled to answer. perceptions, own felt McGrath’s interroga- subject McGrath was the of a custodial Since law Commanding Officer who is a enforcement tion such is and as officer under the Code Justice case is give suspect warnings, required Agent or a Depart no case of an F.B.I. different than the example, eliciting Agent, ment of confession Treasury of Miranda and a criminal court taken violation See, e.g., Mathis v. to use attempting it. Pennsylvania States, 391 U.S. United S.Ct. L.Ed.2d 381 exactly practice This was that the United States Murphy Commis Supreme Court ended Waterfront *15 York, supra.3 Our sion New need go no fur analysis of ther. Fifth Amendment rights McGrath’s violated not only by the when his was military compelled, confession but rights his Fifth and Fourteenth Amendment were violated when a criminal court use of Pennsylvania permitted that confession him. against reargument
Our grant partly was directed at what if impact, Supreme recent decision in any, the Court’s Murphy, Minnesota v. 420, 1136, 465 104 U.S. S.Ct. 79 (1984), L.Ed.2d has on the present 409 We find that it case. has none. Murphy distinguishable.
The facts of
are
In
clearly
1980, Murphy had been sentenced to
the
probation,
terms
required
participate
which
treatment program
that
a
offenders,
for sexual
that he report
probation
to his
officer
directed,
as
probation
and that
be truthful with the
officer “in
comply
all matters.”
Failure
with
these
conditions,
informed,
he was
could
in his
result
return to the
sentencing
probation
for a
hearing.
court
revocation
privilege against
pri-
3. “The constitutional
self-incrimination
has two
mary
may
compulsion
interrelated facets: The
not use
Government
statements, see,
Hitchcock,
self-incriminating
e.g.
elicit
v.
Counselman
195,
547,
(1892);
142 U.S.
12 S.Ct.
Neither probation that his Murphy believed found that Court meeting or that leaving revoked for could have been for this reason. Since the in the office he remained convenient time and mutually scheduled at a meeting was that did not include request to a arranged pursuant threat, believed that termi- unlikely Murphy it is any probation- have his meeting jeopardized would nating status. ary case, not did McGrath believe only
In the present Officer Commanding report had him- subjected have reality in would questions, answer failure to possible obey self to court-martial- the order report. in custody McGrath was Clearly, questioned Private officers, and entitled to warn- by law enforcement ings given, which were therefore his confession suppressed as should been taken have violation right self against Fifth Amendment incrimination. judgment sentence reversed and the case is for a ordered remanded new trial opin- consistent with this ion.
FLAHERTY, J., files a concurring opinion.
NIX, C.J., dissenting opinion, files which McDER- J., MOTT, joins.
FLAHERTY, Justice, concurring. shown, As the has majority officer marine who inter rogated had the status of a law enforcement officer and interrogation was conducted circum under stances which were custodial in For reasons, nature. these I concur with majority view warnings that Miranda required and that in the warnings, absence such McGrath’s incriminating statement supp should have been ressed.*
NIX, C.J., dissenting.
I remain of the view previously expressed earlier my McGrath, dissent this matter. Commonwealth 103, 122-123, Pa. (1983) (Nix, J., 470 A.2d dissent- *17 ing, McDermott, J.). joined by
McDERMOTT, J., joins in dissenting opinion. * majority’s military judicial extending discussion of decisions Mi- military setting unnecessary, randa to a for where a law enforce- interrogation, applies. ment officer conducts a custodial