                                   [J-90-2014]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT

     CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.


COMMONWEALTH OF PENNSYLVANIA, :                No. 10 MAP 2014
                              :
               Appellee       :                Appeal from the Superior Court order dated
                              :                August 7, 2013 at No. 1588 MDA 2012
                              :                which Affirmed the judgment of sentence of
         v.                   :                the Berks County Court of Common Pleas,
                              :                Criminal Division, dated July 16, 2012 at
                              :                No. CP-06-CR-0003517-2011.
NATHAN COOLEY, III,           :
                              :                ARGUED: October 8, 2014
               Appellant      :


                                        OPINION


MR. JUSTICE EAKIN                                             DECIDED: June 15, 2015
        This Court granted review to consider whether appellant was subject to custodial

interrogation during an encounter with parole agents, such that their failure to issue

Miranda 1 warnings violated his Fifth Amendment rights. The courts below admitted

appellant’s statements at trial, concluding appellant was not in custody for Fifth

Amendment purposes and thus not entitled to Miranda warnings.              We conclude

appellant’s interaction with parole agents included custodial interrogation, making

admission of the statements error, which was not harmless. Thus, we are constrained to

vacate appellant’s convictions and remand for a new trial.

        On June 30, 2011, while appellant was on parole following a drug conviction, his

parole agent, Agent McCartin, received a voicemail from the father of appellant’s fiancée,


1   Miranda v. Arizona, 384 U.S. 436 (1966).
who stated appellant possessed and had been discharging firearms, and may have been

selling drugs at his home. Agent McCartin testified he found the voicemail reliable

because the caller identified himself and his relationship to appellant, and knew of

appellant’s recent approved vacation to Virginia.

       On July 6, 2011, appellant went to the parole office to meet with Agent McCartin.

Upon appellant’s arrival, Agent McCartin handcuffed him and searched him for weapons,

finding none. Agent McCartin informed appellant that he and other agents were going to

search his home for firearms and drugs based on a “course of action[.]” N.T. Trial,

5/10/12, at 96-97.   He asked appellant if contraband would be found in his home;

appellant became nervous and said he was unsure what agents would discover.

Another parole officer, Agent Heidlebaugh, asked him whether firearms would be found in

his home; appellant admitted a gun was in a drawer under the living-room couch. The

agents transported appellant, still in handcuffs, to his home.

       Four parole agents, including McCartin and Heidlebaugh, conducted the search.

They recovered a .40 caliber handgun from the drawer identified by appellant and an

empty .22 caliber handgun case from appellant’s bedroom. They also seized $3,200,

one pound of marijuana, and plastic baggies. When confronted with the drugs, appellant

admitted they were his. After completing the search, the agents asked where his vehicle

was; appellant gave a location, but when the agents drove there, his vehicle was not

there. Back at the parole office, agents saw a vehicle and asked appellant if it was his;

he confirmed it was. The agents asked appellant whether he had a firearm in the

vehicle; he admitted there was one under the passenger seat. The agents took his keys,

entered the car, and seized a .22 caliber handgun. From the time of his arrival at the

parole office, during the search of his home, and until he returned to the office with the

agents, appellant remained in handcuffs and was never given Miranda warnings.




                                      [J-90-2014] - 2
         Appellant was charged with two counts each of persons not to possess firearms,

18 Pa.C.S. § 6105(a)(1), and firearms not to be carried without a license, 2 id., §

6106(a)(1), and one count each of possession with intent to deliver a controlled

substance,      35   P.S.   § 780-113(a)(30),    and   possession   of   marijuana,   id.,   §

780-113(a)(31)(i). Appellant filed an omnibus pre-trial motion seeking to suppress the

statements made to the parole agents, which the suppression court denied.3 A jury

convicted appellant on all counts; he was sentenced to five to ten years imprisonment

followed by seven years’ probation. Appellant filed a post-sentence motion, which was

denied. He appealed, claiming his statements to the parole agents should have been

suppressed because he was never given Miranda warnings.

         In its Rule 1925(a) opinion, the trial court held Miranda warnings were not required

because appellant was neither in custody nor interrogated.4 The court determined that

appellant was detained at the parole office based on suspected parole violations, but was

not subject to an arrest or its functional equivalent. The court primarily relied on 61

Pa.C.S. § 6153(d)(5),5 which allows a parole agent to detain a parolee who is present

2   The Commonwealth later withdrew one firearms count.

3 Appellant also filed a motion to suppress the physical evidence, but for purposes of this
appeal, appellant only challenges admission of his statements.

4 The opinion denying appellant’s motion to suppress contains analysis substantially
similar to the Rule 1925(a) opinion. See Suppression Court Opinion, 3/26/12, at 5-6.

5   In its entirety, § 6153(d)(5) provides:

         (d) Grounds for personal search of offender.—

                                    *      *    *
            (5) The offender may be detained if he is present during a
            property search. If the offender is not present during a
            property search, the agent in charge of the search shall make
(continuedM)

                                         [J-90-2014] - 3
during a property search. The court noted appellant “was detained for the agents’ safety

before the subject of the informant’s tip has been broached.”         Trial Court Opinion,

12/3/12, at 11.      It concluded, “According to established safety protocols, [appellant]

remained detained while the parole agents conducted the approved residential search.

This detention and questioning by parole agents pursuant to their statutorily defined

authority is not the functional equivalent of an arrest that would require the agents to

administer Miranda warnings[.]” Id., at 11-12.

       The Superior Court affirmed, holding Miranda warnings were not required during

questioning by the parole agents because appellant’s statements were merely part of a

parole interview rather than a custodial interrogation. Commonwealth v. Cooley, No.

1588 MDA 2012, unpublished memorandum at 12 (Pa. Super. filed August 7, 2013).

The court stated Miranda warnings are only required when there is custodial

interrogation, which is defined as “‘questioning initiated by law enforcement officers after

a person has been taken into custody or otherwise deprived of his freedom of action in

any significant way.’” Id., at 11 (quoting Miranda, at 444). It noted custody is equivalent

to “a formal arrest or restraint on freedom of movement of the degree associated with a

formal arrest.” Id. (citation omitted). The court reviewed various factors and found the

mere fact appellant was handcuffed was insufficient to show he was arrested.

       The court also determined there was no custodial interrogation because appellant

“was not taken to an unfamiliar or coercive environment, there was no use of force or

threat of force, and the detention did not last for more than a few hours.” Id., at 12. It


(Mcontinued)
            a reasonable effort to provide the offender with notice of the
            search, including a list of the items seized, after the search is
            completed.

Id., § 6153(d)(5).



                                       [J-90-2014] - 4
concluded appellant’s interactions with the parole agents at the office merely constituted

a parole interview, during which Miranda warnings are not usually required. Id., at 12-13.

It also concluded detention in conformity with § 6153(d)(5) was not the functional

equivalent of an arrest. Id., at 11-13. Thus, the court held the suppression court did not

err in admitting appellant’s statements regarding the firearms and drugs. Id., at 13.

       We granted allocatur to determine “[w]hether there was custodial interrogation,

such that the failure to issue Miranda warnings violated [appellant]’s Fifth Amendment

rights, requiring suppression of statements made.” Commonwealth v. Cooley, 86 A.3d

230 (Pa. 2014) (per curiam). In reviewing a ruling on a suppression motion, our standard

of review is well settled: We are bound by the suppression court’s factual findings if

supported by the record; however, we review the suppression court’s legal rulings de

novo. Commonwealth v. James, 69 A.3d 180, 186 (Pa. 2013) (quoting Commonwealth

v. Briggs, 12 A.3d 291, 320-21 (Pa. 2011)).

       Appellant contends a parole agent must issue Miranda warnings to a parolee when

he is in custody and questioned about new crimes.6 He asserts his status as a parolee

does not limit his Fifth Amendment rights, and he retained such rights throughout.

Appellant asserts the use of restraints, coupled with the length of detention and the

accusations of new crimes, further establishes he was in custody. He argues the agents’

acts constituted custodial interrogation, and therefore he was entitled to Miranda

warnings at the parole office, his home, and in the agents’ vehicle.

6 Appellant notes this is an issue of first impression before this Court but points to other
jurisdictions that have held Miranda warnings are required during custodial interrogation
by a parole agent regarding new crimes. See Appellant’s Brief, at 13 (citing United
States v. Newton, 369 F.3d 659 (2d Cir. 2004); United States v. Bland, 908 F.2d 471,
472-74 (9th Cir. 1990); United States v. Deaton, 468 F.2d 541, 544 (5th Cir. 1972); United
States v. Steele, 419 F. Supp. 1385, 1386-87 (W.D. Pa. 1976); State v. Lekas, 442 P.2d
11, 16 (Kan. 1968); People v. Elliott, 815 N.W.2d 575 (Mich. Ct. App. 2012); and State v.
Davis, 337 A.2d 33, 35 (N.J. 1975)).



                                      [J-90-2014] - 5
       Appellant argues both the Superior Court and the trial court improperly relied on

United States v. Randolph, 210 F. Supp. 2d 586 (E.D. Pa. 2002), for the proposition that

“[p]arole agents in any event may without Miranda warnings question parolees.” Id., at

589 n.3. Appellant notes Randolph is not binding on this Court and claims the statement

relied on by the courts is dictum, as that case involved the Fourth Amendment, not the

Fifth Amendment. See id., at 589 & n.3 (quoting Minnesota v. Murphy, 465 U.S. 420,

435 n.7 (1984)). Alternatively, appellant alleges Randolph actually supports the notion

that Miranda warnings are required when a parolee is interrogated about new crimes.7

       Appellant contends Commonwealth v. Knoble, 42 A.3d 976 (Pa. 2012), indicated a

probationer may invoke Fifth Amendment rights in response to questions about new

crimes. See id., at 981-82. He asserts we opined in Knoble that statements made to

probation or parole agents concerning new crimes must be suppressed if such

statements were compelled by threat of probation or parole revocation.          Noting we

ultimately held Knoble was not in custody, appellant asserts there is custody in this case.

       Appellant also claims the Superior Court erred in relying on 61 Pa.C.S. §

6153(d)(5).   He asserts that section only involves the Fourth Amendment, and

lawfulness of detaining a parolee during a home search is immaterial to a Miranda

analysis. Lawfulness of custody neither determines the constitutionality of interrogation


7  Appellant proposes Steele is persuasive, as it “provides a cogent rule that clarifies how
Miranda applies to a custodial interrogation of a suspect on probation or parole about new
crimes.” Appellant’s Brief, at 18 (quoting Steele, at 1386-87) (“[T]he proper rule is that
while statements made to a probation or parole officer without the Miranda warnings
being given are properly admitted in a parole revocation hearing where various types of
hearsay may be used to inform the court as to the parole violation, [] when these
statements are used to prove an entirely separate offense against the defendant and he
is in custody and under the compulsion of discussing matters with his parole or probation
officer, Miranda warnings must be given before such testimony can be admitted M in the
trial involving the separate offense.”).



                                      [J-90-2014] - 6
nor the need to administer Miranda warnings. Appellant points out that police arrived

during the search but never spoke to him, though they filed the criminal charges; he posits

that had he been handcuffed by police, he would unarguably have been in custody and

entitled to Miranda warnings prior to interrogation. He argues the agents were required

to do the same because “[p]ermitting police officers to look the other way while a parole

agent conducts an unwarned custodial interrogation is unjust.” Appellant’s Brief, at 25.

        The Commonwealth concedes parolees and probationers do not lose Fifth

Amendment rights merely because of their status, but contends appellant was not in

custody for Fifth Amendment purposes. The Commonwealth notes appellant had been

on parole for 17 months without incident and was aware of the rules regarding his

supervision; no weapons or other show of force was utilized, and the search was

executed without undue delay.        The Commonwealth contends the totality of the

circumstances overcomes any inference of custody solely from the use of handcuffs.

        The Commonwealth claims 61 Pa.C.S. § 6153 detention does not rise to the level

of custody for Miranda purposes. The Commonwealth argues the detention of parolees

is important for agents’ safety during their supervisory process, asserting “[a] precedent

that the mere handcuffing of an individual elevates an interaction from detention into

custody, requiring the safeguards of Miranda, without other factors demonstrating either

force   or   compulsion,   would   severely   handicap    the   entire   parole   process.”

Commonwealth’s Brief, at 19.

        The Commonwealth claims this case is similar to Murphy, which held because a

probation interview is non-custodial, a probationer’s failure to invoke the Fifth

Amendment during a probation interview makes his statements admissible.                See

Murphy, at 429-34. The Commonwealth notes the apparent difference between Murphy

and this case — the fact appellant was handcuffed upon his arrival at the parole office —




                                     [J-90-2014] - 7
but argues such a distinction is not dispositive because: (1) the use of handcuffs alone is

not determinative of custody; (2) appellant was restrained for the agents’ safety based on

the tip received; and (3) appellant was detained for the limited purpose of verifying the

tip’s veracity. Thus, the Commonwealth asserts appellant’s detention — both at the

parole office and during the search — was not the functional equivalent of an arrest. As

the Fifth Amendment was not self-executing, appellant’s failure to invoke his rights

rendered his statements admissible.

       The Fifth Amendment provides “no person ... shall be compelled in any criminal

case to be a witness against himself[.]” U.S. Const. amend. V. This prohibition not only

permits an individual to refuse to testify against himself when he is a defendant but also

“‘privileges him not to answer official questions put to him in any other proceeding, civil or

criminal, formal or informal, where the answers might incriminate him in future criminal

proceedings.’” Murphy, at 426 (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)).8

The Fifth Amendment privilege against self-incrimination is generally not self-executing,

and ordinarily an individual must assert the privilege for subsequent statements to be

considered “compelled” within the meaning of the Fifth Amendment. Murphy, at 427;

Knoble, at 979. However, the Fifth Amendment is self-executing where an individual is

subject to custodial interrogation without being given Miranda warnings.9 Murphy, at

429-30; Miranda, at 467-69.



8 “We have held Article I, § 9 of the Pennsylvania Constitution affords no greater
protections against self-incrimination than the Fifth Amendment to the United States
Constitution.” Knoble, at 979 n.2 (citation omitted).

9 Another exception to the need to assert the privilege exists when “the government in
any way asserts that a probationer’s claiming of the privilege would lead to probation
revocation[.]” Knoble, at 982 (citing Murphy, at 435). Appellant does not allege this
exception here.



                                       [J-90-2014] - 8
       With these principles in mind, we turn to the issue presented. A parolee does not

lose the Fifth Amendment privilege against self-incrimination merely because of

conviction of a crime. Murphy, at 426. Parolees, like any other individual, must be

given Miranda warnings when subject to custodial interrogation. Custodial interrogation

is defined as “questioning initiated by law enforcement officers after a person has been

taken into custody or otherwise deprived of his freedom of action in any significant way[,]”

Miranda, at 444, and the Commonwealth does not contest that appellant was questioned

by law enforcement officers; the only dispute is whether he was in custody.

       An individual is in custody if he is “physically denied his freedom of action in any

significant way or is placed in a situation in which he reasonably believes that his freedom

of action or movement is restricted by the interrogation.” Commonwealth v. Johnson,

727 A.2d 1089, 1100 (Pa. 1999) (citations omitted). Regarding custody, the United

States Supreme Court has further held the “ultimate inquiry is ... whether there [was] a

‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal

arrest.”   Stansbury v. California, 511 U.S. 318, 322 (1994) (citation omitted).       The

standard for determining whether an encounter is custodial is an objective one, focusing

on the totality of the circumstances with due consideration given to the reasonable

impression conveyed to the individual being questioned. Commonwealth v. Gwynn, 723

A.2d 143, 148 (Pa. 1998) (Opinion Announcing Judgment of the Court) (citation omitted).

       In Murphy, the United States Supreme Court addressed whether “a statement

made by a probationer to his probation officer without prior warnings is admissible in a

subsequent criminal proceeding.” Murphy, at 425. As part of Murphy’s probation, he

was obligated to participate in a sex-offender treatment program, report to his probation

officer as required, and be completely honest with the officer. Id., at 422. The probation

officer was notified that during his treatment, Murphy admitted to a previous rape and




                                      [J-90-2014] - 9
murder. Id., at 423. The probation officer arranged a meeting with Murphy and told him

about the information she had received expressing the belief this information evinced a

need for further treatment. Id., at 423-24. During the meeting, Murphy admitted to the

rape and murder, for which he was eventually arrested. Id., at 424-25.

       The Supreme Court indicated the Fifth Amendment privilege against compulsory

self-incrimination does not preclude voluntary incriminatory statements, and a

probationer must claim the privilege if he desires its protection; otherwise, his statement

will not be considered “compelled.” Id., at 427 (quoting United States v. Monia, 317 U.S.

424, 427 (1943)).    The Court noted “the general obligation to appear and answer

questions truthfully did not in itself convert Murphy’s otherwise voluntary statements into

compelled ones M unless he invokes the privilege and shows that he faces a realistic

threat of self-incrimination.” Id. The Court pointed out that while there are well-known

exceptions to this general rule, such exceptions contain “some identifiable factor M

deny[ing] the individual a ‘free choice to admit, to deny, or to refuse to answer.’” Id., at

429 (quoting Garner v. United States, 424 U.S. 648, 657 (1976)).

       The Court concluded Murphy’s meeting with his probation officer did not amount to

custody for Miranda purposes, as there was no formal arrest or its functional equivalent.

Id., at 429-30. In finding no custody, the Court “emphasize[d] that Murphy was not under

arrest and that he was free to leave at the end of the meeting[,]” and opined that “[a]

different question would be presented if he had been interviewed by his probation officer

while being held in police custody or by the police themselves in a custodial setting.” Id.,

at 429 n.5. As Murphy was not in custody and did not assert the privilege, the Court held

his incriminating statements were admissible. Id., at 440.

       This Court addressed a factually similar case in Knoble. Knoble was on probation

and was required to complete a sex-offender program, but was terminated from the




                                     [J-90-2014] - 10
program for being dishonest during therapeutic polygraph tests;10 he was arrested for

violating probation. At Knoble’s probation-revocation hearing, a sex-offender counselor

testified Knoble, after failing the polygraph, admitted he had been dishonest about his

sexual history, victimized other minors, and was guilty of a sexual offense against a minor

for which he had been previously acquitted. Id. This Court granted review, and noted

“[t]he current situation appears to us even less imposing than that in Murphy[,]” holding

Knoble’s Fifth Amendment privilege was not self-executing because he was not subject to

custodial interrogation. Id., at 980-81. We found Knoble was not in custody because

there was no police supervision for his therapy, his treatment was out-patient, and he

attended independently. Id., at 981. We also concluded he was not “‘compelled’ within

the meaning of the Fifth Amendment, [because] he knew the terms of his probation, was

aware of his ability to challenge the terms prior to beginning his treatment, and failed to

raise any such challenge either before or during questioning.” Id.

      The trial court and the Superior Court relied on Randolph in holding a parole

interview is not the equivalent of custodial interrogation, such that agents may question

parolees without Miranda warnings. Cooley, at 12 (citing Randolph, at 589 n.3); Trial

Court Opinion, 12/3/12, at 11 (same); Suppression Court Opinion, 3/26/12, at 5 (same).

The opinion in Randolph only dealt with the Fourth Amendment and a motion to suppress

physical evidence; the opinion noted “[a]t the oral argument today, Randolph withdrew his

request to suppress statements[.]”      See Randolph, at 588 & 589 n.3.         Yet, after

determining the Fifth Amendment was not at issue, the court further opined that “[p]arole

agents in any event may without Miranda warnings question parolees.” Id. In support

of its determination, the court quoted a footnote from Murphy:

10 “[O]ne of the primary stages of sex offender treatment is for an individual to take a
sexual history therapeutic polygraph in order to objectively assess a participant’s
self-reported sexual history.” Knoble, at 978.



                                     [J-90-2014] - 11
       “Just as there is no right to a jury trial before probation may be revoked,
       neither is the privilege against compelled self-incrimination available to a
       probationer. It follows that whether or not the answer to a question about a
       residential requirement is compelled by the threat of revocation, there can
       be no valid claim of the privilege on the ground that the information sought
       can be used in revocation proceedings.
       Our cases indicate, moreover, that a State may validly insist on answers to
       even incriminating questions and hence sensibly administer its probation
       system, as long as it recognizes that the required answers may not be used
       in a criminal proceeding[] and thus eliminates the threat of incrimination.”
Id. (quoting Murphy, at 435 n.7).

       This quotation concerned the Supreme Court’s inquiry whether a probationer’s

failure to assert his privilege against self-incrimination would be excused when a

probation officer “either expressly or by implication, asserts that invocation of the privilege

would lead to revocation of probation[.]” Murphy, at 435. The footnote pertained to the

use of a probationer’s statements in revocation proceedings and addressed whether

Murphy was deterred from asserting the privilege by a reasonably perceived threat of

probation revocation. See id., at 435 & n.7; see also Randolph, at 589 n.3.

       Appellant’s challenges to application of Randolph are well taken. The case is not

binding precedent, the language was dictum, and the Fifth Amendment was not at issue

there. Further, Randolph involved a threat of parole revocation, which is not present

here. Thus, we find that both the trial court’s and the Superior Court’s reliance on

Randolph was misplaced.

       While Murphy and Knoble are factually distinguishable because neither involved

actual custody, we find portions of Murphy’s reasoning particularly instructive.          The

Murphy Court “emphasize[d] that Murphy was not under arrest and that he was free to

leave at the end of the [probation] meeting[,]” and it noted “[a] different question would be

presented if he had been interviewed by his probation officer while being held in police

custody[.]” Murphy, at 429 n.5. As quoted above, the Murphy Court determined a state

may insist on answers to incriminating questions “as long as it recognizes that the


                                      [J-90-2014] - 12
required answers may not be used in a criminal proceeding[.]” Id., at 435 n.7 (emphasis

added). The Murphy Court further explained:

      A state may require a probationer to appear and discuss matters that affect
      his probationary status; such a requirement, without more, does not give
      rise to a self-executing privilege. The result may be different if the
      questions put to the probationer, however relevant to his probationary
      status, call for answers that would incriminate him in a pending or later
      criminal prosecution.

Id., at 435 (emphasis added).

      The Murphy Court also addressed the difference between custodial interrogation

and a routine probation interview, determining a probationer must invoke his privilege

against self-incrimination when questioned during the latter, as the privilege is not

self-executing, and a probation requirement to appear at the meeting and be completely

honest does not violate a probationer’s Fifth Amendment rights. See id., at 429-37.

The Supreme Court noted a pre-arranged probation meeting in an atmosphere familiar to

the probationer does not involve the psychological ploys of custodial arrest. Id., at 433

(citing Miranda, at 456-57). The Court determined “Murphy was not physically restrained

and could have left the office,” and any compulsion he may have perceived from ending

the probation meeting “was not comparable to the pressure on a suspect who is painfully

aware that he literally cannot escape a persistent custodial interrogator.” Id.

      It is beyond cavil that no mere parole interview took place here. Appellant had

been on parole for 17 months without incident, and just returned from an approved

out-of-state vacation. There is no evidence any prior meeting involved handcuffing, but

appellant was immediately restrained upon arrival. This may be understandable and

legal, but that does not make it less custodial. Appellant was then accused of crimes for

which he was not on parole; there was no “interview” or dialogue related to the conditions

of his parole or parole violations. While the use of handcuffs is not dispositive of a



                                     [J-90-2014] - 13
custody analysis, and we still must conduct a totality-of-the-circumstances analysis, the

use of restraints is “generally recognized as a hallmark of a formal arrest.” United States

v. Newton, 369 F.3d 659, 676 (2d Cir. 2004) (citing New York v. Quarles, 467 U.S. 649,

655 (1984); Dunaway v. New York, 442 U.S. 200, 215 & n.17 (1979)). It is difficult to

credit any suggestion that appellant, or anyone else, would have felt free to leave here.

       After handcuffing, appellant was searched; nothing was found.          There is no

evidence the agents felt threatened after that, but the restraints were not removed. No

one told appellant he was not under arrest or that he was restrained pursuant to routine

policy. Instead, the parole agents stated he was being investigated for new crimes; their

interrogation and search was unquestionably aimed at crimes for which he was not on

parole. At that point, the parole agents’ conduct was the functional equivalent of that of

police officers.

       Based on the totality of the circumstances, we find a reasonable parolee would not

feel free to terminate the encounter and leave the parole office.11 Therefore, we hold

appellant was subject to custodial interrogation, and because the privilege was

self-executing, the parole agents’ failure to administer Miranda warnings violated

appellant’s Fifth Amendment rights.12 As a result, appellant’s statements should have

been suppressed, and it was error for the courts below to admit them.13

11 Parolees may not feel free to terminate a parole meeting and leave the parole office
before the meeting has ended; however, as Murphy noted, “any compulsion [a parolee]
might M fe[el] from the possibility that terminating the meeting would have led to
revocation of probation [is] not comparable to the pressure on a suspect who is painfully
aware that he literally cannot escape a persistent custodial interrogator.” Murphy, at
433; see also Howes v. Fields, 132 S. Ct. 1181, 1190 (2012) (“[T]he [] question [is]
whether the relevant environment presents the same inherently coercive pressures as
the type of station house questioning at issue in Miranda.”).
12 Handcuffing appellant was entirely reasonable under the Fourth Amendment, though it

resulted in custody for purposes of Miranda. Likewise, 61 Pa.C.S. § 6153 allows his
detention during the home search. However, the lawfulness of custody does not mean
(continuedM)

                                     [J-90-2014] - 14
       In determining whether this error requires the grant of a new trial, we must consider

whether the error was harmless. Appellant claims the admission of his incriminating

statements substantially prejudiced him because an essential element of his crimes was

possession, and his statements identified the location of the firearms and admitted

possession of the firearms and drugs.            “An error is harmless if it could not have

contributed to the verdict. In other words, an error cannot be harmless if there is a

reasonable    possibility   the   error     might   have     contributed   to   the   conviction.”

Commonwealth v. Wright, 961 A.2d 119, 143 (Pa. 2008) (citation omitted). It is the

Commonwealth’s burden to prove beyond a reasonable doubt that the error did not

contribute to the verdict. Id. (citation omitted). The Commonwealth does not argue the

physical evidence was sufficient to support the convictions or that the verdict would be the

same if appellant’s statements were suppressed.               The Commonwealth makes no

argument concerning harmless error; thus, it has failed to meet its burden. For these

reasons, we find this error was not harmless, as we cannot determine beyond a

reasonable doubt that it did not contribute to the verdict.

       In sum, we hold appellant was subject to custodial interrogation such that his

parole agents’ failure to issue Miranda warnings violated his Fifth Amendment rights, the

courts below erred in failing to suppress his incriminating statements, and such error was




(Mcontinued)
there was no custody, and as such does not preclude appellant’s Fifth Amendment claim.
We also observe the burden of reciting Miranda warnings is not an onerous one.

13 A court views the totality of circumstance in each case; we accordingly limit our holding
to the facts presented here and recognize the outcome might be different with factual
variations. We also express no opinion as to whether the privilege is self-executing
when, during a routine interview or home search, a probationer or parolee is required to
answer questions that may incriminate him in a future criminal prosecution.



                                          [J-90-2014] - 15
not harmless. Thus, appellant is entitled to a new trial consistent with the guidelines set

forth in this opinion.14

       Judgment of sentence vacated.        Case remanded for new trial.       Jurisdiction

relinquished.

       Former Chief Justice Castille and former Justice McCaffery did not participate in

the decision of this case.

       Mr. Chief Justice Saylor, Mr. Justice Baer and Madame Justice Todd join the

opinion.

       Mr. Justice Stevens files a dissenting opinion.




14 We acknowledge appellant, in his brief, argued in the alternative that his sentence was
unconstitutional pursuant to Alleyne v. United States, 133 S. Ct. 2151 (2013), as he was
sentenced to the mandatory minimum under 42 Pa.C.S. § 9712.1. See Appellant’s Brief,
at 9 n.1. Because we remand for a new trial, we need not address appellant’s claim and
do not express any opinion as to that issue.



                                     [J-90-2014] - 16
