COMMONWEALTH оf Pennsylvania, Appellee, v. John PEREZ, Appellant.
Supreme Court of Pennsylvania.
Argued April 9, 2002. Decided March 24, 2004.
845 A.2d 779
Hugh J. Burns, Michael Erlich, Philadelphia, for Com.
Before: ZAPPALA, C.J., and CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR and EAKIN, JJ.
OPINION
Justice EAKIN.
We are asked to determine whether the Superior Court erred in affirming appellant‘s judgment of sentence for robbery and related offenses, when the evidence included an inculpatory statement appellant made more than six hours after his arrest, before he was arraigned. The Superior Court‘s application of the “six-hour rule” established by Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), and Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987) (Opinion Announcing the Judgment of the Court),1 causes us to re-examine this bright-line rule, which calls for suppression
At 4:30 p.m., on November 24, 1996, three men robbed a deli at gunpoint. Based on the victims’ account and a videotape from a security camera, pоlice had a description of the suspects and their car. At 6:15 p.m., a pizzeria was robbed by three men of the same description, with the same car. At 6:30 p.m., police stopped a car matching the description, and finding its occupants matched the description of the suspects, arrested them for both robberies. Appellant, a juvenile at the time, was one of the occupants; seeking to avoid discovery by the police of outstanding warrants for his arrest, he gave police what they later found to be a false name, birth date, address, and phone number.
At approximately 11:15 p.m., after concluding his preliminary investigation of the crime scenes, Detective George Fetters began to interview appellant. When Detective Fetters ran a computer check at 11:42 p.m., using the name appellant had given, he discovered appellant had lied. Police ascertained appellant‘s true identity around midnight; at 12:15 a.m., they telephoned his aunt, with whom he lived, and asked her to be present while they talked to appellant. She declined, but gave the detectives permission to speak with appellant about the robberies. At 12:45 a.m., appellant was given Miranda2 warnings and agreed to make a statement; he confessed to being involved in both robberies. Questioning concluded at 4:35 a.m. Appellant was arraigned at 9:24 a.m., nearly 15 hours after his arrest.
Appellant moved to suppress his statement because it was not obtained within six hours of his arrest, in violation of Davenport and Duncan. The trial court denied the motion. Appellant was tried as an adult, a jury found him guilty, and he was sentenced to 8 to 20 years imprisonment. He appealed to the Superior Court, again alleging his confession should have been suppressed.
Accordingly, the Superior Court held the six-hour period did not begin to run until appellant gave the police his correct name, rather than at the time of his arrest, when he used a false name. The court also noted that the interrogation was not prolonged, and appellant did not allege his statement was coerced or involuntary. The majority concluded:
In view of the cause of the delay and the circumstances surrounding it in this case, suppression of the statements made to police by Perez would not comport with the spirit behind the rule or with this Court‘s previous rulings that a defendant should not profit from a delay which he himself has caused.
Judge Johnson dissented, for three reasons. First, he concluded the majority erred in relying on Devan, which was not a majority opinion, and thus of no precedential value. He further concluded the cases cited in Devan were not analogous to this case beсause appellant‘s false information did not make him physically unavailable for arraignment, nor did appellant waive his right to prompt arraignment.
Second, the dissent maintained, a defendant can be arraigned regardless of whether the police know his correct identity;
Finally, Judge Johnson observed the majority‘s holding conflicted with Davenport and Duncan. Although some members of this Court have expressed dissatisfaction with the rule, see Commonwealth v. Bridges, 563 Pa. 1, 757 A.2d 859, 883 (2000) (Saylor, J., concurring; joined by Cappy, J.), cert. denied, 535 U.S. 1102, 122 S.Ct. 2306, 152 L.Ed.2d 1061 (2002), the dissent concluded it was beyond the Superior Court‘s authority to discard the rule as long as it remains binding precedent. Judge Johnson also concluded appellant‘s failure to allege his confession was coerced or involuntary was of no import, as the six-hour rule contemplated that the “‘mere passage of time’ while under arrest could have a coercive effect on a defendant.” Perez, at 882 (Johnson, J., dissenting) (quoting Duncan, at 1182). Finding appellant had only to show his statement was made beyond the six-hour period, the dissent would have suppressed it.
In this appeal, appellant likewise argues the true cause of the delay was not his false information, but the police‘s decision to continue the initial investigation prior to interrogation; he argues they had sufficient information from the surveillance video, and there was no reason for the delay in questioning him. He further contends there is no need to incorporate an “excludable time” analysis into the six-hour rule, when the rule already allows for the exception of exigent circumstances.
The Commonwealth counters that police began interrogating appellant within the six-hour period, but were delayed for over an hour by appellant‘s false information, which made additional investigation and processing necessary. The Commonwealth further argues the six-hour rule should be reconsidered, citing the acknowledged shortcomings of a bright-line rule of exclusion, as well as case law from other jurisdictions
In Pennsylvania, the right to prompt arraignment is set forth in the Rules of Criminal Procedure, which state that a person who has been arrested ”shall be afforded a preliminary arraignment by the proper issuing authority without unnecessary delay.”
Before Davenport, to enforce the prompt arraignment requirement, this Court held all evidence obtained during unnecessary delay between arrest and arraignment was inadmissible, unless the evidence bore no relationship to the delay. Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417, 419 (1972)4
Given the flood of cases that followed, this Court in Davenport sought to “simplify the task of determining the admissibility of statements taken before arraignment and thereby further judicial economy.” Id., at 306. The Court adopted a rule that made the admissibility of statements obtained between arrest and arraignment dependent on the length of time between these events: “[i]f the accused is not arraigned within six hours of arrest, any statement оbtained after arrest but before arraignment shall not be admissible at trial.” Id. Six hours was chosen because there was no case where a delay of six or more hours was held to be “necessary” delay, and the National Advisory Commission on Criminal Justice had recommended that time frame. See id., at 306 n. 7 (collecting cases and citing Standards and Goals of the National Advisory Committee on Criminal Justice, Corrections § 4.5 (1973)).
In Duncan, the rule was modified, in response to a decade of mechanical enforcement of the six-hour period. The Court reiterated the twin aims of the rule, “to guard against the coercive influence of custodial interrogation, [and] to ensure that the rights to which an accused is entitled at preliminary arraignment are afforded without unnecessary delay.” Id., at 1181 (quoting Davenport, at 305). The Court stressed that there was never an intent to hаve the rule rigidly applied without regard to its purpose of discouraging coercive interrogation, and emphasized the rule did not abandon Futch and Williams’ requirement that the evidence sought to be suppressed be reasonably related to the delay. Duncan, at 1182. Therefore, in determining whether to suppress an incrimina-
In Commonwealth v. Bond, 539 Pa. 299, 652 A.2d 308 (1995), this Court reaffirmed the six-hour rule, holding it to be offense-specific; that is, “the arrest of a suspect for one criminal offense does not commence the six-hour period for questioning regarding a separate criminal offense.” Bridges, at 870 (citations omitted); see also Commonwealth v. Persiano, 555 Pa. 428, 725 A.2d 151 (1999). In Commonwealth v. Washington, 547 Pa. 550, 692 A.2d 1018 (1997), this Court held there was no violation of Davenport or Duncan where the accused gave an inculpatory statement within five hours of the start of questioning, even though he was in custody for approximately 28 hours on an unrelated charge. Because there was no prolonged delay in arraignment for the crime at issue, the confession was admissible.
Application of a stringent bright-line rule to the vastly different sets of circumstances that may be involved in arrest, investigation, and arraignment has yielded perplexing results, and the rule has drawn its share of criticism. See Commonwealth v. Keasley, 501 Pa. 461, 462 A.2d 216, 217 (1983) (McDermott, J., concurring) (“The Davenport rule severely undermines the truth-determining process, and results in the exclusion of constitutionally permissible statements.“); Commonwealth v. Jenkins, 500 Pa. 144, 454 A.2d 1004, 1008 (1982) (McDermott, J., concurring) (“We must ... discard Davenport and return to a more flexible approach. This will enable our courts to suppress statements where they were obtained through coercion rather than watch the clocks and count the hours.“); Commonwealth v. Bennett, 498 Pa. 656, 450 A.2d 970, 971 (1982) (Flaherty, J., concurring) (“‘[S]topwatch justice’ exacts a considerable toll on society when one who is actually guilty of the crimes charged escapes conviction and punishment for his guilty conduct because of what is termed in
People v. Cipriano, 431 Mich. 315, 429 N.W.2d 781 (1988), involved Michigan‘s statutory requirement that an accused be brought before a magistrate “without unnecessary delay.” Id., at 783 n. 1 (citing
Significantly, the Michigan Supreme Court noted the vast majority of state courts5 interpreting similar statutes, rejected the McNabb-Mallory rule:
Under the view adopted in most states, a confession obtained from a suspect in violation of his statutory right to promрt arraignment is not ipso facto inadmissible; rather, arraignment delay is taken into account as one relevant factor in evaluating the overall voluntariness of the confession. See, for example, State v. Newnam, 409 N.W.2d 79 (N.D.1987); Ferry v. State, 453 N.E.2d 207 (Ind., 1983); People v. Goree, 115 Ill.App.3d 157, 70 Ill.Dec. 869, 450 N.E.2d 342 (1983); People v. Harris, 28 Cal.3d 935, 171 Cal.Rptr. 679, 623 P.2d 240 (1981); State v. Wiberg, 296 N.W.2d 388 (Minn., 1980); State v. Wyman, 97 Idaho 486, 547 P.2d 531 (1976), overruled on other grounds State v. McCurdy, 100 Idaho 683, 603 P.2d 1017 (1979).
Cipriano, at 785 (footnotes omitted).
The Michigan court concluded unnecessary delay in arraignment was only one factor in determining whether a confession was voluntary, and held the test should be “whether the totality of the circumstances surrounding the making of the confession indicates that it was freely and voluntarily made.” Id., at 790. Among the other factors to be considered were: the accused‘s age; his level of education and intelligence; the extent of his previous experience with police; the repeated and prolonged nature of the questioning; the length of detention prior to the confession; whether hе was advised of his constitutional rights; whether he was injured, ill, drugged, or intoxicated when he confessed; whether he was deprived of food, sleep, or medical attention; and whether he was physically abused or threatened with abuse. Id.
Applying these principles to the three cases before it, the Cipriano court concluded the co-defendants’ confessions, given 26 hours after arrest, three days after arrest, and two days after arrest, respectively, were not coercively obtained, and thus were admissible. However, the court commented, “we do not condone the failure of the police to comply with the statutes.... However, we hold that an otherwise competent confession should not be excluded solely because of a delay in arraignment.” Id., at 790.
Even while professing to follow a rule of automatic exclusion based on the passage of time, our courts hаve recognized so many exceptions that, as one member of this Court has observed, the rule is “so readily capable of avoidance as to function as no rule at all....” Bridges, at 883 (Saylor, J., concurring; joined by Cappy, J.). The factors upon which such exceptions have been based bear close, if not identical, resemblance to those under the “totality of circumstances” approach: the unavailability of a magistrate; the accused‘s actual knowledge of his rights and the charges; the time spent transporting the accused to the jurisdiction where the warrant was issued; and delay attributable to the accused‘s mental or physical condition. Thus, Pennsylvania courts have already abandoned an “all or nothing” application of the six-hour rule; if the delay was caused by circumstances beyond police control, and there was no apparent coercion, voluntary confessions have generally not been excluded because of the delay.6
The test for determining the voluntariness of a confession and the validity of a [Miranda] waiver looks to the totality of the circumstances surrounding the giving of the confession. Some of the factors to be considered include: the duration and means of interrogation; the defendant‘s physical and psychological state; the conditions attendant to the detention; the attitude exhibited by the police during the interrogation; and any other factors which mаy serve to drain one‘s powers of resistance to suggestion and coercion.
Commonwealth v. DeJesus, 567 Pa. 415, 787 A.2d 394, 403 (2001) (citation omitted), cert. denied, 537 U.S. 1028, 123 S.Ct. 580, 154 L.Ed.2d 441 (2002); see also Commonwealth v. Johnson, 556 Pa. 216, 727 A.2d 1089 (1999).
That said, delay which directly exacerbates some other coercive police conduct may be relevant, even if less than six hours, for the test remains the totality of circumstances, and the duration of coercive behavior may be relevant to that determination. However, without more, the mere passage of time is not grounds to suppress. If delay exceeds six hours, it is not per se grounds to suppress, but is one factor that must be considered in determining whether, in the totality of circumstances, coercion resulted in the challenged evidence. To the extent that prior cases hold to the contrary, they are overruled.
Without a per se rule of exclusion based on the mere passage of time, computation of “excludable time” will no longer be necessary. Courts instead will look to the totality of the circumstances, including the cause and effect of any delay beyond six hours. However, courts will not have to determine what time “counts” when computing the six-hour period. This rule will apply to appellant‘s case and all pending cases where the issue has been properly raised.
Turning tо appellant‘s case, we note our standard of review in evaluating the denial of a suppression motion:
In reviewing a trial court‘s suppression ruling, our initial task is to determine whether the factual findings are supported by the record. In making this determination, we must consider only the evidence of the prosecution‘s witnesses, and so much evidence of the defense that remains uncontradicted when fairly read in the context of the record as a whole. When the evidence supports the factual find-
ings, we are bound by such findings; we may reverse only if the legal conclusions drawn therefrom are erroneous.
Bridges, at 868 (citation omitted).8
At the time of appellant‘s arrest, he lied to the police about his age and identity. Unaware they did not have correct information and would later have to spend time uncovering appellаnt‘s real name, as well as incurring additional processing time because he was a juvenile, the police continued investigating the crime scenes. Detective Fetters was assigned to investigate the deli robbery sometime after 5:00 p.m.; he was the only detective assigned because they “were short-handed as far as manpower went....” N.T. Suppression Hearing, 10/1/97, at 73. At the police station, he interviewed the complainants and viewed the security camera video, then went to the deli around 7:30 p.m., where he met the mobile crimes unit. Detective Fetters had the other officers view the video with him, to show them where he wanted fingerprints and photographs taken. He interviewed other witnesses, and spent about an hour and a half processing the scene.
When Detective Fetters returned to the station around 9:00 p.m., he was notified of the pizzeria robbery and assigned to that case as well. The complainants had already been interviewed, so he went straight to the scene, arriving around 9:30 p.m. The mobile crimes unit being otherwise occupied, another detective helped him process the scene. They took photographs, tried to gather physical evidence including a spent round in the ceiling, and investigated the block where the pizzeria was located, looking for evidence related to a shot fired at officers in pursuit of the robbers. They also interviewed the owner of the pizza shop. About an hour and a half was spent processing the pizza shop; the detectives left there
Detective Fetters did not begin to question appellant until hours after his arrest, but appellant‘s argument that there was “no reason to delay [the] interrogation,” is not correct. The detective explained at the suppression hearing that because he was the detective assigned to the case, he alone was responsible for interviewing three suspects, including appellant, and no other detective would have done so while he was processing the crime scene, especially when they had their own assignments coming in. See N.T. Suppression Hearing, 10/1/97, at 80-81. Half an hour into the interview, the detective realized appellant‘s deception and had to spend another hour finding out his real name and obtaining his aunt‘s permission to speak with him. Thus, nearly six and one-half hours passed until appellant was given Miranda warnings and made his statement.
Nothing in the record indicates this delay was aimed at overcoming appellant‘s will, or that he was subjected to coercive tactics. Rather, the detective began interviewing appellant within five hours of arrest, as soon as feasible. Once appellant‘s real name and age were ascertained, in spite of his efforts to conceal them, he was given Miranda warnings; he answered “yes” to each question concerning his understanding of his rights and his waiver of them. Detective Fetters testified although appellant seemed “a bit nervous ... [a] bit apprehensive,” when he was given the warnings, he “became a little bit more relaxed and began to talk to me freely,” after being told his aunt had given permission for him to be interviewed. N.T. Suppression Hearing, 10/1/97, at 91.
The interview tоok place in the captain‘s office, where appellant was informed of the video of the robbery, which was shown to him at his request. Detective Fetters was the only officer who stayed in the room with appellant. There were several breaks taken during the statement. Appellant was permitted to use the bathroom, and was given something to eat. The detective interrupted the interview to fill out a
Nothing in the duration or means of interrogation, appellant‘s physical or psychological state, the conditions attendant to detention, the attitude exhibited by the detective during interrogation, or the duration or circumstances of appellant‘s pre-interrogation detention, indicates appellant‘s will was overborne or that his statement was the product of coercion. Although appellant was a juvenile, he lied about his age to prevent the discovery of outstanding bench warrants for his arrest. Appellant was aware he was being charged with robbery, and he knew his rights. His agreement to waive those rights and make a statement cannot be said to have been anything other than knowing, intelligent, and voluntary. Accоrdingly, the Superior Court and the suppression court properly concluded the statement was admissible at trial, and appellant‘s judgment of sentence is affirmed.
Judgment of sentence affirmed.
Former Chief Justice ZAPPALA did not participate in the decision of this case.
Justice CASTILLE files a concurring opinion.
Justice NIGRO files a concurring and dissenting opinion.
Justice SAYLOR files a concurring and dissenting opinion.
Justice CASTILLE, Concurring.
I join the Majority Opinion. I write separately only to address the retroactive effect of the corrective, supervisory rule recognized today. See Majority at 788 (“This rule will apply to appellant‘s case and all pending cases where the issue has been properly raised.“).
In Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), Mr. Justice (now Chief Justice) Cappy noted the general considerations governing the determination of whether to afford retroactive or prospective effect to a new procedural rule of non-constitutional dimension:
In Blackwell [v. Commonwealth, State Ethics Comm., 527 Pa. 172, 589 A.2d 1094 (1991)], our court recognized that the decision to apply a new rule of law is within the discretion of the court. 589 A.2d at 1098. Additionally, the Pennsylvania Constitution does not mandate or prohibit the retroactive or prospective application of a new rule of law. Id. At common law in Pennsylvania, a decision announcing a new rule of law was normally considered to be retroactive. Id. at 1099. In determining whether to apply a new rule retroactively or prospectively, a court should take into account the purpose to be served by the new rule, the extent of reliance on the old rule, and the effect on the administration of justice by the retroactive application of the new rule. Id.
First of all, the Court today is not, strictly speaking, fashioning a “new” rule of criminal procedure; that momentous event occurred in Davenport itself. That decision properly was made prospective because the new six hour rule directly affected daily police investigatory procedures. It would be inappropriate to fault police for relying upon existing law, rather than a time-specific, prophylactic rule that was not in existence at the time of an interrogation and arraignment. The Court‘s formal abrogation of the Davenport/Duncan rule—or, more properly, our belated recognition that the rule has evolved in such a way that it is no longer the bright line rule it once purported to be—does not trigger equivalеnt concerns of detrimental reliance. As with most rules of procedure, this rule governed the conduct of the government, not that of the suspect; it did not operate to create a new personal “right” of criminal defendants. It is unlikely in the extreme that appellant here temporally confessed when he did in reliance upon the fact that more than six hours had passed since his arrest and, therefore, he could later invoke Davenport/Duncan in the hope of suppressing his otherwise-voluntary admissions. Indeed, given how riddled the rule has become with exceptions, no party who would benefit from it could properly be said to have “relied” upon it. Contrast, Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385, 403 (2003) (holding which abrogated relaxed waiver rule on direct capital appeals given limited prospective effect because litigants may already have relied upon existence of rule in briefing appeals; “Prospective application of our new approach will avoid upsetting the expectations of capital appellants and their direct appeal counsel who have already briefed, or are in the process of briefing, their appeals in reliance upon the prospect that this Court, in its discretion, might reach the merits of some of their otherwise waived claims of trial error)“).
Accordingly, for these reasons, I believe that retroactive application of the corrective, supervisory rule recognized today is appropriate. I join the entirety of the Majority Opinion.
Justice NIGRO, Concurring and Dissenting.
As I cannot agree with the majority that the Court should abandon the six-hour rule established by Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987), and Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), I must dissent. However, because I ultimately agree that the Duncan-Davenport rule was not violated here, I agree with the majority that Appellant is not entitled to relief.
In Davenport, this Court held that an arrestee must be arraigned within six hours of arrest in order to “guard against the coercive influence of custodial interrogation [and] to ensure that the rights to which an accused is entitled at preliminary arraignment are afforded without unnecessary delay.” 370 A.2d at 305. If an arrestee is not arraigned within six hours of arrest, Davenport held, any statement by the accused obtained between arrest and arraignment is not admissible at trial. Id. at 306. As the majority notes, Duncan then modified the six-hour rule, indicating that the “focus should be upon when the [defendant‘s] statement was obtained, i.e. within or beyond the six hour period.” 525 A.2d at 1181. Finding that the Duncan-Davenport rule has essentially become ineffectual, the majority now abandons the rule and instead adopts a “totality of the circumstances” approach to the question of when statements will be deemed admissible. My primary concern with this approach is simply that, in the absence of reasonable and clear time restraints in which police officers are allowed to question suspects, suspects are much
Applying the Duncan-Davenport rule to the instant case, however, I do agree that Appellant is ultimately not entitled to relief. As this Court stated in Commonwealth v. Washington, 547 Pa. 550, 692 A.2d 1018, 1023 (1998), and as I have reiterated above, the Duncan-Davenport rule is premised on a desire to avoid the coercive effect of prolonged police interrogation. Consistent with this principle, this Court has found that the Duncan-Davenport rule has not been violated when a statement was obtained within six hours of the start of questioning on the offense at issue, even if that statement was obtained after the defendant had been in police custody for more than six hours. See Washington, 692 A.2d at 1023 (no violation of Duncan-Davenport rule where period of pre-arraignment interrogation did not exceed six hours); Commonwealth v. Persiano, 555 Pa. 428, 725 A.2d 151, 153–54 (same). Here, Appellant was arrested at 6:30 p.m., but interrogation did not begin until approximately 11:15 p.m. The interrogation ended at 4:35 a.m., less than six hours after it began, and Appellant gave his statement. Under these facts, I would follow the reasoning of this Court in Washington and Persiano, and find that the Duncan-Davenport rule has not been violated. As such, I am able to concur in the majority opinion‘s denial of relief to Appellant.
Justice SAYLOR, Concurring and Dissenting.
I concur in the Court‘s abandonment of the “six-hour rule” governing the admissibility of a pre-arraignment confession as developed in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), and Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987), in favor of a totality-of-the-circumstances
Nevertheless, I disagree with the majority‘s decision to abandon the six-hour rule retrospectively, as the general practice is to apply new procedural rules of non-constitutional dimension prospectively. See Commonwealth v. Freeman, 573 Pa. 532, 562, 827 A.2d 385, 403 (2003) (collecting cases); accord Davenport, 471 Pa. at 288, 370 A.2d at 307 (directing prospective application of the six-hour standard).2 As the Davenport/Duncan rule was in effect at the time of Appellant‘s confession, in light of the traditional non-retroactive approach to modification of non-constitutional rules, and since, as the majority acknowledges, the confession in this case was obtained more than six hours after Appellant‘s arrest but prior to his arraignment, see Majority Opinion, at 374-77, 845 A.2d at 788-89,3 I believe that Appellant‘s confession should have been suppressed.