J-A03036-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                             :           PENNSYLVANIA
                    Appellant                :
                                             :
                       v.                    :
                                             :
    ERNEST JAMES SNYDER,                     :
                                             :
                    Appellee                 :     No. 1069 WDA 2018

                   Appeal from the Order Entered July 5, 2018
                 in the Court of Common Pleas of Mercer County
              Criminal Division, at No(s): CP-43-CR-0001405-2017

BEFORE:       BOWES, J., SHOGAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                       FILED APRIL 12, 2019

        The Commonwealth of Pennsylvania appeals from the July 5, 2018 order

which granted the omnibus motion for pre-trial relief filed by Ernest James

Snyder (Snyder). Upon review, we affirm.

              On August 7, 2017, the complainant[, A.W.] provided a
        statement to Hermitage Police, accusing [Snyder] of various
        criminal acts. On August 9, 2017, Detective John Miller of the
        Hermitage Police conducted an interrogation of [Snyder] at the
        Meadows Mental Health Facility, where [Snyder] was residing.
        [Snyder] made incriminating statements during the interview.

              On August 10, 2017, charges were filed against [Snyder.1
        Snyder] requested the appointment of the Mercer County Public
        Defender’s Office to represent him. On August 23, 2017, the [trial]
        court appointed the Public Defender to represent [Snyder] in this
        matter.

             At [Snyder’s] preliminary hearing on August 29, 2017,
        counsel for the parties discussed conducting a polygraph test. The

1
 Specifically, Snyder was charged with several sexual offenses including, inter
alia, rape of a child and aggravated indecent assault.

*Retired Senior Judge assigned to the Superior Court.
J-A03036-19


        polygraph interview was subsequently scheduled for October 5,
        2017. Prior to the scheduled interview, defense counsel contacted
        the District Attorney’s office and requested that the interview be
        postponed because there was a question as to [Snyder’s]
        competency to stand trial and/or make knowing and voluntary
        statements. Defense counsel wanted to obtain discovery and
        conduct an investigation into the competency issue prior to any
        further interviews by the Commonwealth.

              The Commonwealth agreed to defense counsel’s request.
        However, despite the District Attorney’s attempt to postpone the
        interview, Scott Patterson conducted the polygraph test and
        interview of [Snyder] at the Mercer County Jail on October 5, 2017
        [without defense counsel present.        Snyder] made further
        incriminating statements at that time.

Opinion, 7/5/2018, at 1-2. As a result of the foregoing, on April 25, 2018,

Snyder filed an “Omnibus Motion for Pre-trial Relief for Defendant’s Motion in

Limine to Suppress Statements” (Motion to Suppress).           Therein, Snyder

alleged, inter alia, that the statements made during the polygraph

examination should be suppressed because the statements were “not made

knowingly, intelligently, or voluntarily[,]” and were in violation of his

constitutional right to counsel.      Motion to Suppress, 4/25/2018, at 4

(unnumbered).

        The Commonwealth filed a response, in which it asserted that the

statements made during the polygraph examination should be admissible in

their case-in-chief because Snyder was read his Miranda2 rights before the

polygraph examination began and Snyder waived his right to counsel.


2
    Miranda v. Arizona, 384 U.S. 436 (1966).



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Response to Snyder’s Motion to Suppress, 7/2/2018, at 5-6 (unnumbered).

In the alternative, even if the trial court were to suppress the statements for

use at trial, the Commonwealth argued the court should permit the

Commonwealth and its expert to use Snyder’s statements when evaluating

Snyder’s competency. Id.

      No hearing was held on Snyder’s motion.        Instead, the parties, by

consent, agreed to have the trial court review and decide the matter on briefs.

Order, 5/10/2018. After consideration of the parties’ briefs, the trial court

granted Snyder’s motion, holding as follows.

            Ensuring that a defendant has the assistance of counsel is a
      hollow gesture if the defendant cannot rely on that assistance.
      Where, as here, a defendant has relied upon the assistance of
      counsel in his interactions with the Commonwealth, and the
      Commonwealth acts in a manner that specifically invalidates that
      reliance, it is reasonable to assume that the defendant’s faith in
      the judicial system will have been severely shaken. Under these
      circumstances, th[e trial court] cannot find that [Snyder] was able
      to make a knowing, intelligent, and voluntary waiver of his Sixth
      Amendment right to counsel.

Opinion, 7/5/2018, at 7-8.      Additionally, the trial court found that the

exclusionary rule prohibited the Commonwealth from using the statements to

help formulate its expert’s report on Snyder’s competency. Id. at 10 (“Where

the exclusionary rule applies, the Commonwealth may not use the evidence




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excluded or any other evidence tainted thereby.”). This timely-filed appeal

followed.3

      On appeal, the Commonwealth argues that the trial court erred in

granting Snyder’s Motion to Suppress. Commonwealth’s Brief at 4.

            When the Commonwealth appeals from a suppression order,
      this Court follows a clearly defined scope and standard of review.
      We consider only the evidence from the defendant’s witnesses
      together with the evidence of the prosecution that, when read in
      the context of the entire record, remains uncontradicted. This
      Court must first determine whether the record supports the factual
      findings of the suppression court and then determine the
      reasonableness of the inferences and legal conclusions drawn
      from those findings. In appeals where there is no meaningful
      dispute of fact, as in the case sub judice, our duty is to determine
      whether the suppression court properly applied the law to the
      facts of the case.

Commonwealth v. Arthur, 62 A.3d 424, 427 (Pa. Super. 2013) (quotation

marks and citations omitted).    With our well-settled standard of review in

mind, we examine the Commonwealth’s claim on appeal mindful of the

following legal principles.

            The Fifth and Sixth Amendments to the United States
      Constitution both provide criminal defendants with a right to
      counsel, though their protections differ in various respects.
      Although the Fifth Amendment does not expressly set forth a right
      to counsel, the Supreme Court inferred such a right in Miranda[,
      supra].     Under Miranda, any suspect subject to custodial
      interrogation, regardless of whether a crime has been charged,

3
 In its notice of appeal, the Commonwealth certified that the July 5, 2018
order handicapped its prosecution, thus permitting appeal pursuant to
Pa.R.A.P. 311(d). Notice of Appeal, 7/20/2018, at 1 (unnumbered). The
Commonwealth complied with Pa.R.A.P. 1925(b). In lieu of a Pa.R.A.P.
1925(a) opinion, the trial court issued an order relying on its July 6, 2018
opinion. Order, 8/28/2018.


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     has a right to have [an] attorney present during questioning if the
     suspect so requests. Once a defendant invokes his or her Fifth
     Amendment right to counsel, all questioning must cease. No
     subsequent interrogation may take place until counsel is present,
     whether or not the accused has consulted with his attorney.

            The Sixth Amendment to the United States Constitution
     states, in relevant part, that “[i]n all criminal prosecutions, the
     accused shall enjoy the right ... to have the Assistance of Counsel
     for his defence.” U.S. Const. Amend. VI. The Sixth Amendment
     guarantees a defendant the right to have counsel present at all
     critical stages of the criminal proceedings. Interrogation is a
     critical stage. The purpose of this right is to protec[t] the unaided
     layman at critical confrontations with his “expert adversary,” the
     government, after the adverse positions of government and
     defendant have solidified with respect to a particular alleged
     crime.      Because it does not attach until a prosecution is
     commenced, the Sixth Amendment right to counsel is offense-
     specific.

           In Kirby v. Illinois, [406 U.S. 682 (1972)], the United
     States Supreme Court explained when the Sixth Amendment right
     to counsel attaches:

           The initiation of judicial criminal proceedings is far
           from a mere formalism. It is the starting point of our
           whole system of adversary criminal justice. For it is
           only then that the government has committed itself to
           prosecute, and only then that the adverse positions of
           government and defendant have solidified. It is then
           that a defendant finds himself faced with the
           prosecutorial forces of organized society, and
           immersed in the intricacies of substantive and
           procedural criminal law. It is this point, therefore,
           that marks the commencement of the “criminal
           prosecutions” to which alone the explicit guarantees
           of the Sixth Amendment are applicable.

           As our Supreme Court has clarified, the “initiation of
     adversary proceedings” can be via “formal charge, preliminary
     hearing,    indictment,   information,   or    arraignment.”
     Commonwealth v. McCoy, [975 A.2d 586, 590 (Pa. 2009).] As
     our Supreme Court indicated in McCoy, one type of “formal



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     charge” initiating formal adversary proceedings is the filing of a
     criminal complaint.

            After the Sixth Amendment right to counsel attaches, it does
     not depend upon any further request by the defendant. In other
     words, the Sixth Amendment right to counsel is “self-
     effectuating,” in that the accused has no obligation to assert it.
     The triggering event for attachment of the Sixth Amendment right
     to counsel is not a defendant’s assertion of the right via a request
     for counsel, but is instead, as indicated, the initiation of the
     judicial proceedings.

            A defendant may waive his/her Sixth Amendment right to
     counsel so long as the waiver is voluntary, knowing, and
     intelligent. Although a defendant’s Miranda rights have their
     source in the Fifth Amendment, a defendant who is admonished
     with the warnings set forth in Miranda has been sufficiently
     apprised of the nature of his/her Sixth Amendment rights, and
     thus a waiver of his/her Miranda rights may constitute a waiver
     of both the Fifth and Sixth Amendment rights to counsel.

           The determination whether an accused has knowingly and
     voluntarily waived his constitutional rights depends on the facts of
     each particular case. These circumstances include the
     background, experience, and conduct of the accused.             The
     government has the burden to prove, by a preponderance of the
     evidence, that the waiver was the product of a free and deliberate
     choice rather than intimidation, coercion, or deception and was
     made with a full awareness both of the nature of the right being
     abandoned and the consequences of the decision to abandon it.
     Only if the totality of the circumstances surrounding the
     interrogation reveal both an uncoerced choice and the requisite
     level of comprehension may a court properly conclude that the
     constitutional rights to counsel have been waived. With respect
     to constitutional rights, courts should indulge every reasonable
     presumption against waiver.

Commonwealth v. Hill, 42 A.3d 1085, 1090–91 (Pa. Super. 2012), vacated

on other grounds, 104 A.3d 1220 (Pa. 2014) (footnote and some citations and

quotation marks omitted).




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      In this case, there is no dispute that Snyder’s right to counsel had

attached and that he was represented by the Public Defender’s office at the

time of the polygraph examination.      Likewise, it is clear that this type of

examination fell within the parameters of a “critical stage,” to which the Sixth

Amendment applies, as the polygraph served the Commonwealth’s efforts to

elicit information from Snyder. Moreover, and arguably most important, there

is no dispute that defense counsel requested, and the Commonwealth agreed,

to a postponement of the polygraph examination. Thus, what was left for the

trial court to decide when reviewing Snyder’s motion was whether Snyder’s

constitutional rights were violated when the Commonwealth conducted a

polygraph examination which was held despite counsel’s intervention.

      In his Motion to Suppress, Snyder argued that the Commonwealth was

prohibited “from initiating contact with [him] without the consent of his

counsel.” Memorandum in Support of Motion to Suppress, 4/25/2018, at 11

(unnumbered). Moreover, Snyder averred that any waiver made by Snyder

could not “be valid or deemed to be a knowing, intelligent, or voluntary waiver

when counsel expressly intervened to cancel the scheduled interrogation of

her client and [] Snyder did not reinitiate the questioning on his own behalf.”

Id. at 11-12. In response, the Commonwealth asserted Snyder’s waiver was

valid because it was made after he was informed of his Miranda rights by the

polygraph examiner. Response to Snyder’s Motion to Suppress, 7/2/2018, at

5 (unnumbered) (“[B]ased upon the ability of [Snyder] to waive his Sixth



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J-A03036-19


Amendment right to counsel, the interview conducted by [the polygraph

examiner], where [Snyder] admits to the acts alleged by [A.W.], should be

allowed in the Commonwealth’s case in chief.”).

      The trial court found that Snyder

      relied on [d]efense [c]ounsel to prevent the Commonwealth from
      conducting the polygraph on October 5, 2017. Despite [d]efense
      [c]ounsel’s efforts, the Commonwealth’s agent approached
      [Snyder] with the intent of conducting the polygraph test. From
      [Snyder’s] perspective, [d]efense [c]ounsel had both failed to
      prevent the Commonwealth from pushing forward with the
      polygraph and did not come to his aid during the interrogation.
      Thus, even when [the polygraph examiner] gave [Snyder] his
      Miranda warnings, [Snyder] had no reason to believe that an
      assertion of his right to counsel at that time would be honored by
      the Commonwealth.

Opinion, 7/5/2018, at 7-8. The court continued that the record in this case

reflected that

      the Commonwealth specifically contravened an agreement with
      [d]efense [c]ounsel to postpone the custodial interrogation.
      [Snyder] trusted his counsel to represent his interests with regard
      to the October 5, 2017[] interview, and the Commonwealth failed
      to respect that trust. Of course, the Commonwealth could have
      rejected [Snyder’s] request to postpone the polygraph test. In
      that case, [d]efense [c]ounsel would have informed [Snyder] of
      the same and presumably would have been available to assist him
      during the interrogation.        But, having agreed, to the
      postponement, the Commonwealth could not eviscerate
      [Snyder’s] reliance on [d]efense [c]ounsel by failing to honor that
      agreement.

Id.

      On appeal, the Commonwealth contends that the trial court’s finding

that Snyder would have no reason to believe any request for counsel would




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J-A03036-19


be honored when defense counsel failed to postpone the polygraph

examination was “not based upon any fact contained in the record. [Snyder]

never presented testimony regarding his knowledge that [defense counsel]

was attempting to postpone the polygraph examination and the trial court[’s]

considering [Snyder’s] ‘perspective’ [was] improper conjecture unsupported

by any fact.” Commonwealth’s Brief at 16. Additionally, the Commonwealth

avers that there was no evidence to suggest that it “willfully breached the

agreement in order to obtain incriminating statements from” Snyder. Id.

      Upon review of the record, while we agree with the Commonwealth that

the record is devoid of any evidence to suggest that Snyder was aware that

defense counsel had requested to postpone the polygraph examination, we

nonetheless conclude that the suppression of the statements made by Snyder

under the foregoing circumstances was warranted.4 In finding as such, we

agree with Snyder that once defense counsel had intervened regarding a

scheduled polygraph examination and expressly sought a continuance, upon

which the Commonwealth agreed, the Commonwealth was disallowed from

initiating   the   examination    without    counsel’s   knowledge.        See

Commonwealth v. Franciscus, 710 A.2d 1112, 1118 (Pa. 1998) (“The Sixth

Amendment also imposes on the State an affirmative obligation to respect or




4
  “[A]n appellate court is not bound by the rationale of the trial court and may
affirm on any basis if the record supports it.” Commonwealth v. Diaz, 183
A.3d 417, 421 (Pa. Super. 2018).


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preserve the accused’s choice to seek this assistance. We have on several

occasions been called upon to clarify the scope of the State’s obligation in this

regard, and have made clear that, at the very least, the prosecutor and

police have an affirmative obligation not to act in a manner that

circumvents and thereby dilutes the protection afforded by the right

to counsel.”) (emphasis added).         Specifically, with respect to defense

counsel’s actions, we note that

      [t]he Sixth Amendment guarantees the accused, at least after the
      initiation of formal charges, the right to rely on counsel as a
      “medium” between him and the State. … [T]his guarantee includes
      the State’s affirmative obligation not to act in a manner that
      circumvents the protections accorded the accused by invoking this
      right. The determination whether particular action by state agents
      violates the accused’s right to the assistance of counsel must be
      made in light of this obligation.

Maine v. Moulton, 474 U.S. 159, 176 (1985).

      In this case, defense counsel sought specifically a continuance of the

polygraph examination on behalf of her client after she became concerned

about Snyder’s competency. Counsel received an affirmative agreement from

the Commonwealth that the examination would be postponed. As such, the

Commonwealth was prohibited from circumventing the agreement, and its

failure to adhere to the agreement served only to upend the protections




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J-A03036-19


provided to Snyder by the Sixth Amendment.          Thus, suppression of these

statements for use at trial was proper.5

      Lastly, we address the Commonwealth’s argument that even if the trial

court did not err by suppressing Snyder’s statements from being used at trial,

the court erred by not allowing the Commonwealth to use these statements

“for purposes of a competency hearing.”          Commonwealth’s Brief at 19.

Specifically, the Commonwealth contends “that there is absolutely no evidence

that the Commonwealth willfully violated the agreement to postpone the

polygraph examination[,]”      and   as such, the “trial court’s preclusion of

[Snyder’s] statements from use by the Commonwealth in a competency

hearing fails to balance the deterrent effect of the exclusionary rule against the



5
 In concluding as such, we find the Commonwealth’s citation to Montejo v.
Louisiana, 566 U.S. 778 (2009) inapplicable in light of our disposition. In
Montejo, the United States Supreme Court expressly overruled Michigan v.
Jackson, 475 U.S. 625 (1986) and held that the appointment of counsel did
not serve as a presumption that a subsequent waiver of counsel by a
defendant at a later police-initiated interrogation was invalid. Of course,
“[t]he determination whether an accused has knowingly and voluntarily
waived his constitutional rights depends on the facts of each particular case.”
Hill, 42 A.3d at 1091.

      For the reasons cited supra, we need not engage in analysis of whether
Snyder made a knowing and voluntary waiver, as we find the Commonwealth’s
actions breached Snyder’s right to rely on counsel to make decisions on his
behalf. Regardless, we question whether Snyder, presumably without the
knowledge that defense counsel sought to continue the polygraph examination
after becoming concerned of Snyder’s competency, would have been capable
of making a knowing and voluntary waiver of counsel without this pertinent
information.




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societal costs[,]” since the exclusion of these statements “essentially stifles the

Commonwealth’s potential prosecution of a very serious sexual offense case.”

Id. at 24-25.

      We are cognizant that there is little in the record to suggest that the

Commonwealth      engaged     in   willful   misconduct6   when   the   polygraph

examination     was   administered     despite   an   agreement    to   postpone.

Nevertheless, it is well settled that “no good faith exception to the

exclusionary rule exists under Pennsylvania law.”           Commonwealth v.

Hopkins, 164 A.3d 1133, 1138 (Pa. 2017). See also Commonwealth v.

Edmunds, 586 A.2d 887, 899 (Pa. 1991) (rejecting the federal good faith

exception to the exclusionary rule as it would emasculate essential rights

guaranteed by the Pennsylvania Constitution). “Evidence constitutes fruit of

the poisonous tree, and must be suppressed, if it was obtained by

‘exploitation’ of the illegality … and so long as the taint of that illegality has

not been purged.” Commonwealth v. Shabezz, 166 A.3d 278, 290 (Pa.

2017).

      Here, the statements made by Snyder were “a direct and immediate

consequence” of the polygraph examination that was held without Snyder’s


6
  In Snyder’s Motion to Suppress, Snyder attached an email sent from the
Assistant District Attorney to an employee in the District Attorney’s office
requesting that the polygraph examination be continued. The employee
acknowledged receipt of the email by responding and stating that the
polygraph could be postponed to a later date. See Motion to Suppress,
4/25/2018, at Exhibit A.


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counsel present, and therefore, using the statements in the competency

hearing would constitute “an ‘exploitation’ of the constitutional violation.” Id.

Additionally, there is no indicia in the record to suggest that the taint of that

illegality could be purged. See id. (“None of the traditional circumstances

that have been found to purge the taint of an unconstitutional act, i.e.

attenuation, inevitable discovery, independent source, or some intervening

act or event, [] are present in this case.”). In light of the foregoing, because

the suppressed statements cannot be purged of taint, pursuant to the

exclusionary rule, they cannot be used as evidence against Snyder.

      In sum, because it was appropriate under the circumstances to suppress

Snyder’s statements, the trial court properly granted Snyder’s Motion to

Suppress. Thus, we affirm the trial court’s order.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2019




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