J-E03005-16

                             2017 PA Super 128



COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellant

                   v.

RONALD GRANT CHAMPNEY

                        Appellee                   No. 714 MDA 2015


                   Appeal from the Order April 20, 2015
            In the Court of Common Pleas of Schuylkill County
           Criminal Division at No(s): CP-54-CR-0001243-1998


BEFORE: BENDER, P.J.E., BOWES, J., PANELLA, J., LAZARUS, J., OTT, J.,
        STABILE, J., DUBOW, J., MOULTON, J., and RANSOM, J.

OPINION BY MOULTON, J.:                            FILED APRIL 26, 2017

     The Commonwealth of Pennsylvania appeals from the April 20, 2015

order entered by the Schuylkill County Court of Common Pleas granting

Ronald Grant Champney’s motion to suppress statements made to police on

May 13, 1998.    The trial court concluded that Champney unambiguously

invoked his right to counsel during an interview with police on December 23,

1997 and that, as a result, the statements he made the next May were

obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436

(1966) and Edwards v. Arizona, 451 U.S. 477 (1981).         While we agree

that Champney successfully invoked his right to counsel, we conclude that,

pursuant to Maryland v. Shatzer, 559 U.S. 98 (2010), there was a

sufficient break in custody between the invocation and the later questioning

to permit the police to question Champney again after obtaining a proper
J-E03005-16



waiver of his Miranda rights.            Accordingly, we reverse the trial court’s

suppression of the May 13, 1998 statements.

       This case arises from the 1992 shooting death of Roy Bensinger.                A

jury convicted Champney of first-degree murder in 1999 and sentenced him

to death.     The Supreme Court of Pennsylvania affirmed his judgment of

sentence in 2003.        Commonwealth v. Champney, 832 A.2d 403 (Pa.

2003), cert. denied, Champney v. Pennsylvania, 542 U.S. 939 (2004).

       In 2005, Champney filed a timely Post Conviction Relief Act (“PCRA”)

petition. On June 3, 2008, the PCRA court granted Champney a new trial,

finding that trial counsel was ineffective for, among other things, failing to

seek suppression of statements Champney made to police on May 13, 1998,

and October 8, 1998.1        On April 24, 2013, an evenly divided Pennsylvania

Supreme      Court    affirmed     the   PCRA    court’s   grant   of   a   new   trial.

Commonwealth v. Champney, 65 A.3d 386 (Pa. 2013), cert. denied,

Pennsylvania v. Champney, 134 S.Ct. 1276 (2014).

       Following remand, on February 6, 2015, Champney filed a motion to

suppress statements he gave to Pennsylvania State Police (“PSP”) Sergeant

(“Sgt.”) David Shinskie on November 25, 1997, December 23, 1997, May

13, 1998, and October 8, 1998. On March 13, 2015, the trial court held a
____________________________________________


       1
        For a discussion of the other grounds on which the PCRA court
granted Champney post-conviction relief, see Commonwealth v.
Champney, 65 A.3d 386, 395-96 (Pa. 2013) (Eakin, J.) (opinion in support
of reversal).



                                           -2-
J-E03005-16



suppression hearing, after which it set forth the following factual history

regarding these statements:

              On October 23, 1997, Champney was arrested and
           placed in Schuylkill County Prison in lieu of bail on
           unrelated arson charges.[2] Between then and October 8,
           1998, Champney had four conversations regarding the
           Bensinger case with [Sgt.] Shinskie of the [PSP].

                                               ...

               On November 25, [1997], Sgt. Shinskie accompanied
           [Trooper (“Tpr.”) Denny] Grimm in transporting Champney
           from the county prison to his preliminary arraignment [on
           the unrelated charges at the Magisterial District Judge’s
           (“MDJ”) office.] Tpr. Grimm drove, and Sgt. Shinskie rode
           in the backseat with a cuffed Champney.

              At the hearing [on Champney’s motion to suppress],
           Sgt. Shinskie testified that he was seizing upon every
           opportunity to talk with Champney about the Bensinger
           case. Sgt. Shinskie allowed Champney to read the arson
           complaint[3] and then advised him of his Miranda rights.
____________________________________________


       2
        In his brief, Champney states that he was first detained in the
Schuylkill County Prison on October 23, 1997 pursuant to charges unrelated
to the Bensinger homicide. A review of the relevant docket – CP-54-CR-
0001206-1997 – shows that on October 23, 1997, Champney was
preliminarily arraigned on a number of charges, including burglary, robbery,
criminal attempt (theft by unlawful taking – moveable property), simple
assault, terroristic threats, recklessly endangering another person, and
criminal conspiracy, but not arson. The magisterial district judge set bail at
$100,000 cash, and based on the docket it does not appear that Champney
made bail on those charges.
       3
       While Champney was charged with additional offenses on November
25, 1997, those charges do not appear to have included arson. The docket
at CP-54-CR-0001277-1997 reveals that Champney was charged with theft
by unlawful taking, receiving stolen property, and conspiracy. He was not
charged with arson until June of 1998. See CP-54-CR-0000980-1998 and
CP-54-CR-0000981-1998. However, this discrepancy does not change our
(Footnote Continued Next Page)


                                           -3-
J-E03005-16


          [Sgt. Shinskie]’s approach to Champney was to engage in
          low key conversation, giving Champney information that
          he had received during the investigation, and inviting
          Champney to comment. On the way back from the MDJ
          office, Champney was asked to return with the officers to
          the police station to make a statement. Champney
          responded that he would have to speak to an attorney
          before doing so. Instead of taking him to the police
          station, he was returned to the prison. The Commonwealth
          has referenced . . . no incriminating statements during this
          conversation.

              Champney’s preliminary hearing on the arson charges
          occurred on December 23, 1997. He was again transported
          there by [Sgt.] Shinskie and [Tpr.] Grimm in the same
          manner as before. Sgt. Shinskie again advised Champney
          of his Miranda rights. After some light conversation,
          Champney said, “I see you caught David Blickley.” Sgt.
          Shinskie testified that Blickley was an associate of
          Champney and was suspected of committing burglaries
          and home invasions in the Philadelphia area. Blickley’s ex-
          girlfriend was married to Bensinger at the time he was
          shot.

             Sgt.    Shinskie   responded     to   Champney      by
          acknowledging that Blickley had been caught and telling
          Champney that Blickley was giving information regarding
          the homicide and Champney’s possible involvement.
          Champney said that he knew someone would have to take
          the blame. Shinskie asked if Beth Bensinger was involved,
          and Champney responded that there was no reason for her
          to be involved.

             On the return trip to the prison, about one hour later,
          Sgt. Shinskie asked Champney if he shot Bensinger.
          Champney responded, “Before I make any kind of
          statement, I think I should talk to Frank Cori.” Sgt.
          Shinskie knew that Frank Cori was an attorney who had
                       _______________________
(Footnote Continued)

analysis, as the timeline relevant to Champney’s statements remains the
same. While the charges may be different, Champney was still charged on
November 25, 1997, preliminarily arraigned that same day, and had a
preliminary hearing on December 23, 1997.



                                            -4-
J-E03005-16


       represented Champney. He was returned to the prison with
       no more conversation of note.

          The next contact by [Sgt.] Shinskie with Champney
       occurred on May 13, 1998. Sgt. Shinskie accompanied
       Detective Pummer of the Lehigh County District Attorney’s
       Office to see Champney at the prison. Detective Pummer
       wanted to question Champney about an arson in
       Allentown. They met with Champney in a prison
       conference room. Champney was advised of his Miranda
       rights and signed a waiver form.

          After some questions regarding arsons in Allentown and
       Tremont, Sgt. Shinskie told Champney that he believed he
       could put together probable cause for homicide charges
       against Champney. In response, Champney asked what he
       was looking at. When [Sgt.] Shinskie replied that he did
       not know, because he could not make deals, Champney
       told him to go get Cal Shields, who was then the
       [Schuylkill County] District Attorney. After an unsuccessful
       attempt to locate Mr. Shields, [Sgt.] Shinskie returned to
       the conversation with Champney.

          When Sgt. Shinskie noted that a .30 caliber firearm was
       used to kill Bensinger, Champney said “Yeah. The guns are
       kept in a locker in the basement of the home.” [Sgt.]
       Shinskie told Champney that he understood the gun was
       destroyed. Champney responded, “That’s a lie. The gun is
       not destroyed. I know who has the gun. And they might
       have sold it or have it somewhere. But that’s a lie. It was
       not destroyed.” When [Sgt.] Shinskie told Champney that
       Chris Reber was involved, Champney replied, “No he’s not
       involved. He only dropped me off.”

          The last conversation between Sgt. Shinskie and
       Champney occurred on October 8, 1998. On that date,
       Champney was arrested in the instant case. [Sgt.]
       Shinskie and [Tpr.] Grimm transported Champney from
       the county prison to their barracks. Along the way, [Sgt.]
       Shinskie commented that Beth Bensinger had made some
       interesting      statements     concerning    Champney’s
       involvement in the Roy Bensinger shooting. [Sgt.] Shinskie
       testified that his goal was to get Champney to comment.
       Champney replied that she probably got immunity.



                                  -5-
J-E03005-16


              Also on the way, [Champney] was given the affidavit of
           probable cause to read and thereafter stated that it did not
           matter because he was going to die anyway. When [Sgt.]
           Shinskie asked what Champney meant, he said he had
           tuberculosis and was going to tell his attorney not to
           appeal so his death would come sooner. Once they arrived
           at the barracks, Champney was read his Miranda rights
           and signed the waiver form.

Trial Ct. Op., 4/20/15, at 1-5.

       On April 20, 2015, the trial court entered an order granting the motion

to suppress in part.       It suppressed the statements made on May 13 and

October 8, 1998,4 but denied the motion with respect to the statements

made on December 23, 1997. On April 21, 2015, the Commonwealth filed a

timely notice of appeal, certifying that the suppression order “will terminate

or substantially handicap the prosecution.”5 See Pa.R.A.P. 311(d). On June

23, 2016, a panel of this Court affirmed the trial court. The Commonwealth

filed a petition for reargument en banc, which this Court granted on

September 2, 2016.

       The Commonwealth raises two6 issues on appeal:


____________________________________________


       4
         The trial court found that neither the Commonwealth nor Champney
identified a statement from the November 25, 1997 conversation that the
Commonwealth would want to offer as evidence. Trial Ct. Op. at 6.
       5
        In its Pennsylvania Rule of Appellate Procedure 1925(a) opinion, the
trial court adopted in full its April 20, 2015 opinion. See Opinion of Court
Pursuant to Pa.R.A.P. 1925, 5/28/15.
       6
       In its Rule 1925(b) statement, the Commonwealth also challenged
the suppression of Champney’s October 8, 1998 statements. However, the
(Footnote Continued Next Page)


                                           -6-
J-E03005-16


             1. Did the lower court err in granting the motion to
                suppress statements made to law enforcement
                authorities on May 13, 1998 where Champney failed
                to make a clear and unambiguous invocation of his
                right to counsel?

             2. Did the lower court err in granting the motion to
                suppress statements made to law enforcement
                authorities on May 13, 1998 when there was a
                sufficient break in Champney’s custody to end the
                presumption of involuntariness established in
                Edwards v. Arizona, 451 U.S. 477 (1981)?

Cmwlth.’s Br. at 4 (trial court answers omitted).   Both issues address the

suppression of Champney’s statements on May 13, 1998. Our standard of

review on such matters is well-settled:

          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) (internal

citations and quotation marks omitted).




                       _______________________
(Footnote Continued)

Commonwealth has voluntarily abandoned this issue. See Cmwlth.’s Br. at
4 n.1.



                                            -7-
J-E03005-16



Invocation of the Right to Counsel

       In its first issue, the Commonwealth argues that Champney did not

effectively invoke his Fifth Amendment right to counsel on December 23,

1997 and, therefore, the May 13, 1998 statements are admissible.

According to the Commonwealth, Champney’s statement, “Before I make

any kind of statement, I think I should talk to Frank Cori,” was equivocal and

ambiguous. Cmwlth.’s Br. at 23-24. The Commonwealth relies on Davis v.

United States, 512 U.S. 452 (1994), in which the United States Supreme

Court upheld the decision of lower courts that the suspect’s use of the

phrase, “Maybe I should talk to a lawyer,” was not sufficiently clear to

constitute an invocation of the right to counsel.7 Cmwlth.’s Br. at 23. The

Commonwealth asserts that Champney’s use of the words “think” and

“should” indicated that Champney was considering whether he should

discuss the matter with his attorney before making a statement, rather than

actually requesting to speak with his attorney.              Id.   Further, the

Commonwealth states “Champney’s words must be considered along with

the description of his body language, demeanor, and voice intonation,” id. at

25, suggesting implicitly that the trial court failed to do so.
____________________________________________


       7
        The issue before us concerns Champney’s Fifth Amendment right to
counsel under Miranda, as opposed to the Sixth Amendment right to
counsel that attaches when the Commonwealth initiates adversary judicial
proceedings. See, e.g., Commonwealth v Romine, 682 A.2d 1296, 1298-
99 (Pa.Super. 1996) (discussing differences between right to counsel under
Fifth and Sixth Amendments).



                                           -8-
J-E03005-16



        In Miranda, the United States Supreme Court established that an

accused has the right to have counsel present during custodial interrogations

under     the   Fifth   and    Fourteenth     Amendments       to   the    United   States

Constitution.     384 U.S. at 474.         This right to counsel is part of “a set of

prophylactic measures designed to safeguard the constitutional guarantee

against self-incrimination.”        J.D.B. v. North Carolina, 564 U.S. 261, 269

(2011).

        In   Edwards      v.    Arizona,     the     Supreme    Court      addressed     the

consequences of a suspect’s invocation of the right to counsel.                          The

Edwards court held that “when an accused has invoked his right to have

counsel present during custodial interrogation,” police may not conduct

further interrogations “until counsel has been made available to him, unless

the   accused     himself      initiates   further   communication,        exchanges,     or

conversations with the police.”            451 U.S. at 484-85.          If police conduct

further interrogations outside the presence of counsel, “the suspect’s

statements      are     presumed     involuntary     and    therefore     inadmissible    as

substantive evidence at trial, even where the suspect executes a waiver and

his statements would be considered voluntary under traditional standards.”

McNeil v. Wisconsin, 501 U.S. 171, 177 (1991).

        To trigger these protections, a defendant’s request for counsel must be

sufficiently clear “that a reasonable police officer would understand the

statement to be a request for an attorney.”                Davis, 512 U.S. at 459.        In

Davis, police officers were investigating a murder that occurred after the

                                            -9-
J-E03005-16



victim lost a pool-game bet and refused to pay. Id. at 454. Naval criminal

investigators focused on Davis when they discovered that he had been at the

bar on the evening in question and owned a pool cue that was stained with

blood. Id. Davis was brought in for questioning, provided his rights, 8 and

waived his rights to remain silent and to counsel. Id. at 454-55. During the

interview, Davis said, “Maybe I should talk to a lawyer.”    Id. at 455.   In

response, the criminal investigator reminded him of his right to counsel and

asked Davis to clarify whether he wanted a lawyer. Id. Davis responded

that he was not asking for a lawyer and did not want one. Id. However,

one hour later, Davis said, “I think I want a lawyer before I say anything

else,” at which point investigators ended the interrogation. Id.

       The Davis Court declined to disturb the conclusion of the lower courts

that Davis’s “maybe” statement was insufficiently clear to invoke his right to

counsel. Id. at 462. The Court rejected the argument that an equivocal or

ambiguous reference to counsel requires the police to stop questioning a

suspect:

              We decline petitioner’s invitation to extend Edwards
           and require law enforcement officers to cease questioning
           immediately upon the making of an ambiguous or
           equivocal reference to an attorney.         The rationale
           underlying Edwards is that the police must respect a
           suspect’s wishes regarding his right to have an attorney
____________________________________________


       8
        Because Davis was an active military service member and the killing
took place on a naval base, Davis was given his rights under Article 31 of the
Uniform Code of Military Justice. See 10 U.S.C. § 831.



                                          - 10 -
J-E03005-16


         present during custodial interrogation.     But when the
         officers conducting the questioning reasonably do not know
         whether or not the suspect wants a lawyer, a rule requiring
         the immediate cessation of questioning “would transform
         the Miranda safeguards into wholly irrational obstacles to
         legitimate police investigative activity,” Michigan v.
         Mosley, 423 U.S. 96, 102 . . . (1975), because it would
         needlessly prevent the police from questioning a suspect in
         the absence of counsel even if the suspect did not wish to
         have a lawyer present. Nothing in Edwards requires the
         provision of counsel to a suspect who consents to answer
         questions without the assistance of a lawyer.

Id. at 459-60 (some internal citations omitted).       The Court went on to

conclude that while “it will often be good police practice for the interviewing

officers to clarify whether or not [a suspect] actually wants an attorney,” the

officers need not do so; instead, they “may continue questioning until and

unless the suspect clearly requests an attorney.” Id. at 461.

      The inquiry into whether or not a suspect has invoked the right to

counsel is an objective one. Id. at 459. The Davis Court explained that a

suspect “must articulate his desire to have counsel present sufficiently

clearly that a reasonable police officer in the circumstances would

understand the statement be a request for an attorney.”                    Id.

(emphasis added). However, if the statement is “ambiguous or equivocal in

that a reasonable officer in light of the circumstances would have understood

only that the suspect might be invoking the right to counsel,” police are not

required to cease questioning. Id. (emphasis in original).

      Our task, then, is to determine whether Champney “articulate[d] his

desire to have counsel present sufficiently clearly that a reasonable police



                                    - 11 -
J-E03005-16



officer in [Sgt. Shinskie’s] circumstances would understand the statement be

a request for an attorney.” Id. In undertaking that task, we look not only

to the specific words used by Champney, but also at the surrounding

circumstances.9

       The first interaction between Champney and Sgt. Shinskie took place

on November 25, 1997, while Champney was detained in county prison on

unrelated charges. N.T., 3/13/15, at 3-4 (“N.T.”); see also note 2, supra.

In an effort to gain information about the Bensinger homicide, Sgt. Shinskie

went with another state trooper to the prison to serve Champney with a

warrant on other unrelated charges and then rode with Champney in a police

cruiser to his preliminary arraignment on those charges.10 N.T. at 4-5. Sgt.
____________________________________________


       9
         Because context matters, various federal and state appellate courts
have reached different results when analyzing language similar to that used
in Davis and here. Compare United States v. Mohr, 772 F.3d 1143, 1146
(8th Cir. 2014) (defendant’s statement “I think I should get [a lawyer]” was
not an unequivocal invocation of right to counsel) and State v. Carter, 172
So.3d 538, 539-40 (Fla. Dist. Ct. App. 2015) (defendant’s statement that “I
think I should wait to talk with my public defender,” followed by statement
that he wanted to tell “the whole truth” was not unambiguous invocation of
right to counsel) with People v. Romero, 953 P.2d 550, 557 (Colo. 1998)
(defendant’s statement that “I think I should talk to a lawyer” in response to
question about self-defense rationale was sufficient invocation) and Wood
v. Ercole, 644 F.3d 83, 87, 90-92 (2d Cir. 2011) (defendant’s statement “I
think I should get a lawyer,” made before giving videotaped statement was
sufficient to invoke right to counsel).
       10
         The Commonwealth does not dispute the trial court’s conclusion that
Champney was subject to custodial interrogation on November 25, 1997
during the rides from prison to the arraignment and back, as Champney was
questioned by Sgt. Shinskie while “[hand]cuffed, riding in a moving police
vehicle, and in the company of two armed officers.” Trial Ct. Op. at 7.



                                          - 12 -
J-E03005-16



Shinskie wanted Champney to confirm some statements that he had

received from other witnesses. Id. at 5-6. Eventually, Sgt. Shinskie asked

Champney if he would be willing to come to the PSP barracks and give a

statement, to which Champney responded that he would have to speak to an

attorney before going to the barracks. At that point the interrogation ended

and Champney was returned to prison. Id. at 6-7.

       On December 23, 1997, Tpr. Grimm and Sgt. Shinskie transported

Champney from the prison to his preliminary hearing on the charges filed in

November. Id. at 7-8. Sgt. Shinskie again sat in the backseat of the PSP

cruiser with Champney while Tpr. Grimm drove.              Id. at 8.     After Sgt.

Shinskie    gave    Champney       his   Miranda   warnings,   Sgt.   Shinskie   and

Champney engaged in small talk until Champney said, “I see you caught

Dave Blickley.”     Id. at 9.     Because Blickley was loosely connected to the

Bensinger investigation,11 Shinskie responded by acknowledging that Blickley

was in custody and that “he was giving information concerning the Roy

Bensinger homicide and also Mr. Champney’s possible involvement.” Id. at

9-10. Champney then said that “he knew somebody was going to have to

take the blame for this.” Id. at 10. When Sgt. Shinskie then asked whether




____________________________________________


       11
        Sgt. Shinskie testified that Blickley was a “friend or associate of . . .
Champney” who had prior contacts with law enforcement and whose “ex-
wife was married to . . . Bensinger, prior to his demise.” N.T. at 9.



                                          - 13 -
J-E03005-16



Beth Bensinger was involved, Champney said “that’s ridiculous” and/or

“there’s no reason for her to be involved in it.” Id.

       After reviewing the history of Champney’s relationship with Beth

Bensinger, Sgt. Shinskie told Champney that Dave Blickley appeared to be

“clearing . . . his slate by offering information concerning the Bensinger

homicide” and urged Champney to “step up” and discuss his involvement.

Id. at 12.       Sgt. Shinskie then asked Champney, “Did you shoot Roy

Bensinger?”     Id. at 14.     Champney “mumbled or stammered, hesitated a

little bit, and then said, ‘Before I make any kind of statement, I think I

should talk to Frank Cori.’”         Id.       Sgt. Shinskie, who knew Cori was an

attorney, then stopped the interrogation. Id. at 55.12
____________________________________________


       12
          Before the trial court, Champney argued that his statements on
December 23, 1997 should be suppressed because he invoked his right to
counsel on November 25, 1997, and, therefore, the Edwards presumption
applied to his December statements. The trial court rejected this argument,
finding that while Champney may have invoked his right to counsel on
November 25, 1997, on December 23, 1997 Champney initiated the
conversation about the homicide, thus eliminating, albeit temporarily, the
Edwards presumption. Trial Ct. Op. at 8-9. Because Champney re-initiated
the discussion of the homicide on December 23, any earlier invocation of his
right to counsel on November 25 no longer barred Sgt. Shinskie from further
interrogation. See Edwards, 451 U.S. at 485 (after the right to counsel
had been asserted by an accused, further interrogation of the accused
should not take place “unless the accused himself initiates further
communication, exchanges, or conversations with the police.”); see also
Commonwealth v. Poplawski, 130 A.3d 697, 712 (Pa. 2015) (quoting
Commonwealth v. Hubble, 504 A.2d 168, 175 (Pa. 1986)) (“[A]
confession given after a defendant invokes his right to counsel need not be
suppressed where the defendant: ‘(1) initiated further communication,
exchanges, or conversations with the police, and (2) knowingly and
intelligently waived the right to counsel.’”). As a result, the admissibility of
(Footnote Continued Next Page)


                                           - 14 -
J-E03005-16



      The trial court, noting that Sgt. Shinskie knew “Frank Cori was an

attorney,” concluded that “[t]his request by Champney for counsel before

giving any further statements was clear and unambiguous.” Trial Ct. Op. at

12.13 We agree with the trial court and conclude that Champney’s statement

was “sufficiently clear[] that a reasonable officer in the circumstances would

understand the statement to be a request for an attorney.” Davis, 512 U.S.

at 459.    In other words, Champney’s request to speak to Frank Cori, in

context, was sufficiently “unequivocal” and “unambiguous” to satisfy Davis

and secure the protections of Edwards.14

      At the time of Champney’s request, Sgt. Shinskie knew that Frank Cori

was an attorney.15 N.T. at 28, 38, 55. Sgt. Shinskie also knew that when
                       _______________________
(Footnote Continued)

Champney’s statements on May 13, 1998 turns first on whether Champney
effectively invoked his right to counsel later on December 23, 1997, after he
re-initiated his discussion with Sgt. Shinskie.
      13
         The court further observed that Champney’s statement was similar
to the defendant’s second reference to counsel in Davis, and “in both
instances, the agents in Davis and Sgt. Shinskie had no trouble construing
the suspect’s statement that he ‘thinks’ he wants to see an attorney as a
request for counsel.” Trial Ct. Op. at 11-12. We note that the Davis Court
did not discuss the second statement made by the defendant except to note
that it ended the interrogation. Rather, its analysis focused on Davis’s
equivocal “maybe” statement. See Davis, 512 U.S. at 462.
      14
          We agree with Champney and the Commonwealth that Sgt.
Shinskie’s questioning on December 23, 1997 was a “custodial interrogation”
under Miranda.
      15
      In its suppression ruling, the trial court found that “Sgt. Shinskie
was aware that Frank Cori was an attorney who was associated with
Champney.” Trial Ct. Op. at 12. However, Sgt. Shinskie only testified that
(Footnote Continued Next Page)


                                           - 15 -
J-E03005-16



he had earlier asked Champney to give a statement about the Bensinger

homicide on November 25, 1997, Champney stated that he would have to

speak to an attorney before going to the police barracks to do so. Id. at 6-

7. Under these circumstances, where Champney was in custody, was asked

directly whether he had committed a murder,16 and identified a particular

lawyer known to his interrogator, a reasonable officer would conclude that

Champney “actually invoked his right to counsel,” Davis at 458 (emphasis in

original) (quoting Smith v. Illinois, 469 U.S. 91, 95 (1984)), rather than

merely making what “might be a request for an attorney,” id. at 461

(emphasis in original).

      The Commonwealth emphasizes Champney’s use of the words “think”

and “should,” arguing that his statement was, as a result, “a communication

fraught with indetermination.”           Cmwlth.’s Br. at 24.        This focus is too

narrow.       Rather,      the    question       is   whether,   under   these   specific

circumstances, including his prior request for counsel and his reference to a

particular attorney with whom Sgt. Shinskie was familiar, Champney’s

                       _______________________
(Footnote Continued)

he knew that Frank Cori was an attorney.             When asked by the
Commonwealth if he knew “whether or not Mr. Cori was representing Mr.
Champney,” he said “No, I did not.” N.T. at 55.           Nevertheless, our
conclusion that Champney sufficiently invoked his right to counsel depends
only on Sgt. Shinskie’s knowledge that Cori was a lawyer, not on whether he
knew Cori’s relationship to Champney.
      16
        The Commonwealth does not dispute that Champney was subject to
custodial interrogation at the time he made the statement.



                                           - 16 -
J-E03005-16



statement “can reasonably be construed to be an expression of desire for

the assistance of an attorney.”         Davis, 512 U.S. at 459 (quoting McNeil,

501 U.S. at 178.)       Underscoring that “a suspect need not speak with the

discrimination of an Oxford don,” id. at 459 (internal quotation marks and

citation omitted), we have little trouble concluding that Champney, despite

his use of arguably qualifying language, “actually request[ed] an attorney.”

Id. at 462; see also id. at 459 (“a statement either is such an assertion of

the right to counsel or it is not”) (quotation omitted).17

       The Commonwealth’s suggestion that the trial court did not adequately

consider Champney’s “body language, demeanor and voice intonation,”

Cmwlth.’s Br. at 25, is unavailing. The trial court heard testimony about the

circumstances surrounding Champney’s statement, including body language,

demeanor, and tone. See N.T. at 14-15, 29-30. While the trial court may

not have mentioned these facts in its opinion, it was undoubtedly aware of
____________________________________________


       17
          The Commonwealth also asks us to consider Champney’s
statements in light of Commonwealth v. Kunkle, 79 A.3d 1173 (Pa.Super.
2013), in which a panel of this Court concluded that a defendant’s phone call
to her attorney’s office (her attorney was unavailable), made with the
assistance of her interrogator, was not a “sufficient articulation of her desire
to have counsel present for the interview such that her statements require
suppression.” Id. at 1185. Kunkle, however, is inapposite. There, when
the defendant was brought to the police barracks, “she asked if she could
contact an attorney” prior to being given her Miranda warnings. Id. at
1184. We concluded that the appellant’s statement was equivocal because it
was not a “sufficient articulation of her desire to have counsel present for
the interview such that her statements require suppression.” Id. at 1185
(emphasis added). In contrast, Champney’s request was to speak with an
attorney before answering any further questions.



                                          - 17 -
J-E03005-16



their possible relevance,18 and nothing in the record or the opinion suggests

that the trial court disregarded them in rendering its decision. We decline

the Commonwealth’s invitation to give more weight to these factors than did

the trial court.

       Alternatively,    the   Commonwealth        contends   that   the   trial   court

impermissibly relied on Sgt. Shinskie’s “elect[ion] to cease his questioning of

Champney,” arguing that “that fact is irrelevant to the analysis.” Cmwlth.’s

Br. at 28. The Commonwealth argues that Sgt. “Shinskie’s personal belief

as to the meaning of Champney’s ambiguous statement does not dictate the

outcome” and, were we to affirm the trial court, such a ruling would “operate

to punish those law enforcement officers who take a conservative approach

by ceasing further questioning when faced with an equivocal request for

counsel.” Id. at 30.

       While we agree with the Commonwealth that the Davis inquiry is

objective, see Davis, 512 U.S. at 459, the Commonwealth’s argument

appears to conflate Sgt. Shinskie’s knowledge of relevant facts with Sgt.

Shinskie’s subjective belief as to what Champney meant by his statement.

Davis requires us to make an objective determination as to whether a


____________________________________________


       18
         In a 2013 opinion in support of reversal of the grant of a new trial in
this case, three Justices suggested that examination of tone, demeanor,
emphasis, and body language would assist in assessing the ambiguity or
equivocality of Champney’s statements. See Champney, 65 A.3d at 404
(Eakin, J., joined by Castille, C.J., and McCaffery, J.).



                                          - 18 -
J-E03005-16



reasonable police officer, under the circumstances, would construe

Champney’s statement as a request for counsel.          While Sgt. Shinskie’s

subjective belief as to whether Champney’s statement was sufficiently clear

to invoke his right to counsel may not be relevant to that inquiry, his

knowledge of relevant facts, such as that Frank Cori was a lawyer possibly

associated with Champney, and that Champney had earlier invoked his right

to counsel,   plainly is relevant.   Those facts are part of the circumstances

under which Champney gave his statement.          The trial court’s observation

that Sgt. Shinskie “had no trouble construing [Champney’s] statement . . .

as a request for counsel,” Trial Ct. Op. at 12, was no more than a

confirmation of its appropriately objective analysis.

Break in Custody

      In its second issue, the Commonwealth argues that, even if Champney

had invoked his Fifth Amendment protection on December 23, 1997, by May

13, 1998 he had experienced a sufficient “break in custody” under

Maryland v. Shatzer, 559 U.S. 98 (2010), that the police were permitted

to approach him again despite that earlier invocation. In other words, the

Commonwealth contends that because Edwards operates as a bar to further

interrogation only so long as the suspect remains in Miranda custody, and

because Shatzer holds that ordinary incarceration is not the same as

Miranda custody, there was no constitutional bar to the May 13, 1997

interrogation.




                                      - 19 -
J-E03005-16



       The trial court rejected this argument and concluded that because

Champney was a pre-trial detainee and not serving a sentence for a prior

conviction, the rationale of Shatzer does not apply.             Surprisingly,

Champney’s brief does not address the Shatzer break-in-custody analysis,

or discuss or even cite Shatzer.19 Champney instead contends, in apparent

conflict with the time limit adopted in Shatzer, that “[t]here is no proper

length of time permitted to allow an officer to keep using tactics to elicit a

confession.” Champney’s Br. at 21. Champney concludes that the Edwards

presumption therefore applies to his May 13, 1998 statements. Id. at 18-

21.    Proper evaluation of these arguments requires a discussion of the

rationale for the rule in Edwards, the meaning of Miranda custody, and the

distinction between Miranda custody and ordinary incarceration.

       As noted above, the Edwards Court held that “when an accused has

invoked his right to have counsel present during custodial interrogation,”

police may not conduct further interrogations “until counsel has been made

available to him, unless the accused himself initiates further communication,

exchanges, or conversations with the police.”      451 U.S. at 484-85.    The

purpose of the Edwards rule is to prevent police from “tak[ing] advantage


____________________________________________


       19
           Champney’s lack of a response to the Commonwealth’s Shatzer
argument is particularly perplexing given the discussion of the issue by the
trial court and the emphasis placed on the case by the Commonwealth in its
initial brief as the appellant in this matter.




                                          - 20 -
J-E03005-16



of the mounting coercive pressures of prolonged police custody . . . by

repeatedly attempting to question a suspect who previously requested

counsel until the suspect is badgered into submission.” Shatzer, 559 U.S.

at 105 (internal quotations omitted).    In other words, Edwards and its

progeny are designed to protect against “the continued pressure that begins

when the individual is taken into custody as a suspect and sought to be

interrogated—pressure likely to ‘increase as custody is prolonged.’”      Id.

(quoting Minnick v. Mississippi, 498 U.S. 146, 153 (1990)).          In cases

following Edwards, the Court concluded that a police officer could not

question a suspect who had invoked his right to counsel and been held in

interrogative custody for three days, even though the re-interrogation

concerned a separate incident, see Arizona v. Roberson, 486 U.S. 675

(1988), and could not re-interrogate a custodial suspect without counsel two

days after the suspect had invoked his right to counsel, even though he had

consulted with counsel in the interim, see Minnick, 498 U.S. at 153.       In

both Roberson and Minnick, the Court concluded that the defendants were

still in Miranda custody because they were unable to “regain a sense of

control or normalcy after they were initially taken into custody for the crime

under investigation.” Shatzer, 559 U.S. at 107.

      In Shatzer, the Supreme Court directly addressed both the meaning

of “custody” for Miranda purposes and how long it would take a defendant

to “regain[] a sense of control or normalcy” after his initial custody.   Id.

Acting on allegations that Shatzer had sexually abused his three-year-old

                                    - 21 -
J-E03005-16



son, a police detective went to interview Shatzer at the prison where he was

serving a sentence on unrelated charges.      Id. at 100-01. Shatzer waived

his Miranda rights and the detective began to question him about the

allegations.   Id. at 101.   Once Shatzer understood that the detective was

asking about the sexual-abuse allegations, not the crime for which he was

already serving time, Shatzer invoked his right to counsel.        Id.   The

detective then ended the interview and Shatzer returned to general prison

population. Id.

      Two years and six months later, the police received more specific

allegations about the same sexual-abuse allegations and a different

detective went to re-interrogate Shatzer. Id. Shatzer waived his Miranda

rights and eventually made incriminating statements. Id. at 101-02. After

being charged with various sexual offenses, Shatzer filed a pre-trial motion

to suppress his statements to the police. Id. at 102. The trial court denied

Shatzer’s motion, reasoning that he “had experienced a break in custody for

Miranda purposes” between interrogations.       Id.   The Court of Appeals of

Maryland reversed and remanded, holding that there was no break-in-

custody exception to Edwards and, even if such an exception existed,

“Shatzer’s release back into the general prison population did not constitute

a break in custody.” Id. at 103.

      The Supreme Court reversed.       Id.    The Court first examined the

circumstances in the “paradigm Edwards case[,]” where a suspect is

“coerced or badgered into abandoning his earlier refusal to be questioned

                                    - 22 -
J-E03005-16



without counsel[,]” and “he remains cut off from his normal life and

companions, thrust into and isolated in an unfamiliar, police-dominated

atmosphere, . . . where his captors appear to control his fate.” Id. at 106

(internal citations and quotation marks omitted). Then the Court considered

a scenario where a suspect is released from pretrial custody and is “returned

to his normal life for some time before the later attempted interrogation.”

Id. at 107. In contrast to the situations presented by Edwards, Roberson,

and Minnick, where the suspects did not “regain[] a sense of control of

normalcy after they were initially taken into custody for the crime under

investigation,” id. at 107, the Court found that its hypothetical scenario did

not require the extension of the protections afforded by Edwards.          The

Court reasoned:

             When, unlike what happened in [Edwards, Roberson,
         and Minnick], a suspect has been released from his
         pretrial custody and has returned to his normal life for
         some time before the later attempted interrogation, there
         is little reason to think that his change of heart regarding
         interrogation without counsel has been coerced. He has no
         longer been isolated. He has likely been able to seek
         advice from an attorney, family members, and friends. And
         he knows from his earlier experience that he need only
         demand counsel to bring the interrogation to a halt; and
         that investigative custody does not last indefinitely. In
         these circumstances, it is far fetched to think that a police
         officer’s asking the suspect whether he would like to waive
         his Miranda rights will any more “wear down the
         accused,” Smith v. Illinois, 469 U.S. 91, 98 . . . (1984)
         (per curiam), than did the first such request at the original
         attempted interrogation—which is of course not deemed
         coercive. His change of heart is less likely attributable to
         “badgering” than it is to the fact that further deliberation in
         familiar surroundings has caused him to believe (rightly or

                                     - 23 -
J-E03005-16


         wrongly) that cooperating with the investigation is in his
         interest. Uncritical extension of Edwards to this situation
         would not significantly increase the number of genuinely
         coerced confessions excluded. The “justification for a
         conclusive presumption disappears when application of the
         presumption will not reach the correct result most of the
         time.” Coleman v. Thompson, 501 U.S. 722, 737 . . .
         (1991).

Id. at 107-08 (footnote omitted). Therefore, the Court determined that the

Miranda protections alone, without the conclusive Edwards presumption,

adequately protected the rights of a suspect who requested counsel but was

“reinterrogated after a break in custody . . . of sufficient duration to

dissipate its coercive effects.” Id. at 109.

      The Court then addressed the question of what constitutes a break in

custody of “sufficient duration” to permit the police to approach the suspect

again for further questioning.      Recognizing the risk of police abuse if

Edwards could be evaded by a brief release and prompt re-arrest, the Court

concluded that “14 days . . . provides plenty of time for the suspect to get

reacclimated to his normal life, to consult with friends and counsel, and to

shake off any residual coercive effects of his prior custody.” Id. at 110.

      The   Court   next   examined     whether   Shatzer’s   break    between

interrogations constituted a break in Miranda custody.           Shatzer was

incarcerated for the entire time between interrogations, so in one sense he

was plainly in “custody.” Id. at 112. The Court made clear, however, that

incarceration and Miranda custody are not one and the same:

            Interrogated suspects who have previously been
         convicted of crime live in prison. When they are released


                                     - 24 -
J-E03005-16


         back into the general prison population, they return to
         their accustomed surroundings and daily routine—they
         regain the degree of control they had over their lives prior
         to the interrogation. Sentenced prisoners, in contrast to
         the Miranda paradigm, are not isolated with their
         accusers. They live among other inmates, guards, and
         workers, and often can receive visitors and communicate
         with people on the outside by mail or telephone.

            Their detention, moreover, is relatively disconnected
         from their prior unwillingness to cooperate in an
         investigation. The former interrogator has no power to
         increase the duration of incarceration, which was
         determined at sentencing. And even where the possibility
         of parole exists, the former interrogator has no apparent
         power to decrease the time served. This is in stark
         contrast to the circumstances faced by the defendants in
         Edwards, Roberson, and Minnick, whose continued
         detention as suspects rested with those controlling their
         interrogation, and who confronted the uncertainties of
         what final charges they would face, whether they would be
         convicted, and what sentence they would receive.

Id. at 113-14 (footnote omitted). The Court went on to
         distinguish the duration of incarceration from the duration
         of what might be termed interrogative custody. When a
         prisoner is removed from the general prison population
         and taken to a separate location for questioning, the
         duration of that separation is assuredly dependent upon
         his interrogators. For which reason once he has asserted a
         refusal to speak without assistance of counsel Edwards
         prevents any efforts to get him to change his mind during
         that interrogative custody.

Id. at 113 n.8 (emphasis in original).

      Based on the foregoing, the Court found that although Shatzer was

incarcerated for the entire period between his invocation of the right to

counsel and the later re-interrogation on the same subject, he nonetheless

experienced a sufficient break in Miranda (or interrogative) custody that the



                                    - 25 -
J-E03005-16



Edwards presumption no longer applied.                Id. at 112-14.   His later

incriminating statements, obtained after fresh Miranda warnings and an

appropriate waiver, were therefore admissible.        Id. at 116-17.

       Two years after Shatzer, the Supreme Court provided more guidance

on the differences between incarceration on the one hand and Miranda or

interrogative custody on the other.            In Howes v. Fields, 565 U.S. 499

(2012), the Court addressed the question whether a prisoner, taken out of

the general prison population for questioning, was in Miranda custody while

being questioned. Id. at 517.20 The Court explained that “[a]s used in our

Miranda case law, ‘custody’ is a term of art that specifies circumstances

that are thought generally to present a serious danger of coercion,” id. at

508-09, and that “[n]ot all restraints on freedom of movement amount to

custody for purposes of Miranda,” id. at 509. The Court further observed

that “[w]e have decline[d] to accord talismanic power to the freedom-of-

movement inquiry and have instead asked the additional question whether

the relevant environment presents the same inherently coercive pressures

as the type of station house questioning at issue in Miranda.” Id. (internal

quotation marks and citations omitted). After concluding, based in part on


____________________________________________


       20
         The Supreme Court uses the term “custody” in conjunction with
Miranda to “specif[y] circumstances that are thought generally to present a
serious danger of coercion.” Fields, 565 U.S. at 508-09. It has also used
the term “interrogative custody” as a synonym for Miranda custody. See,
e.g., Shatzer, 559 U.S. at 113 n.8.



                                          - 26 -
J-E03005-16



Shatzer, that a “prisoner is [not] always in custody for purposes of

Miranda whenever [he] is isolated from the general prison population and

questioned about conduct outside the prison,” id. at 508, the Court

examined “all of the circumstances of the questioning” of Fields and held

that he was “not in custody within the meaning of Miranda,” id. at 517.

     Along the way, the Court further explained why “imprisonment alone is

not enough to create a custodial situation within the meaning of Miranda.”

Id. at 511.

        First, questioning a person who is already serving a prison
        term does not generally involve the shock that very often
        accompanies arrest. In the paradigmatic Miranda
        situation—a person is arrested in his home or on the street
        and whisked to a police station for questioning—detention
        represents a sharp and ominous change, and the shock
        may give rise to coercive pressures. A person who is “cut
        off from his normal life and companions,” Shatzer, [559
        U.S. at 106], and abruptly transported from the street into
        a “police-dominated atmosphere,” Miranda, 384 U.S. at
        456, may feel coerced into answering questions.

            By contrast, when a person who is already serving a
        term of imprisonment is questioned, there is usually no
        such change. “Interrogated suspects who have previously
        been convicted of crime live in prison.” Shatzer, [559 U.S.
        at 113]. For a person serving a term of incarceration, we
        reasoned in Shatzer, the ordinary restrictions of prison
        life, while no doubt unpleasant, are expected and familiar
        and thus do not involve the same “inherently compelling
        pressures” that are often present when a suspect is
        yanked from familiar surroundings in the outside world and
        subjected to interrogation in a police station. Id. [at 103].

           Second, a prisoner, unlike a person who has not been
        sentenced to a term of incarceration, is unlikely to be lured
        into speaking by a longing for prompt release. When a
        person is arrested and taken to a station house for


                                   - 27 -
J-E03005-16


           interrogation, the person who is questioned may be
           pressured to speak by the hope that, after doing so, he will
           be allowed to leave and go home. On the other hand,
           when a prisoner is questioned, he knows that when the
           questioning ceases, he will remain under confinement. Id.
           [at 113 n.8].

               Third, a prisoner, unlike a person who has not been
           convicted and sentenced, knows that the law enforcement
           officers who question him probably lack the authority to
           affect the duration of his sentence. Id. [at 113-114]. And
           “where the possibility of parole exists,” the interrogating
           officers probably also lack the power to bring about an
           early release. [Id.] “When the suspect has no reason to
           think that the listeners have official power over him, it
           should not be assumed that his words are motivated by
           the reaction he expects from his listeners.” [Illinois v.]
           Perkins, 496 U.S. [292, 297 (1990)]. Under such
           circumstances, there is little “basis for the assumption that
           a suspect . . . will feel compelled to speak by the fear of
           reprisal for remaining silent or in the hope of [a] more
           lenient treatment should he confess.” Id. at [296-97].

              In short, standard conditions of confinement and
           associated restrictions on freedom will not necessarily
           implicate the same interests that the Court sought to
           protect when it afforded special safeguards to persons
           subjected to custodial interrogation. Thus, service of a
           term of imprisonment, without more, is not enough to
           constitute Miranda custody.

Id. at 511-12.

      Both Shatzer and Fields were serving prison sentences at the time

they were questioned. Champney was not serving a sentence but instead

was being held in county prison while awaiting trial on a host of separate

charges.    The question for us is whether this factual distinction makes a

legal difference.   We conclude that, under the circumstances before us, it

does not.


                                      - 28 -
J-E03005-16



     In 2012, our Supreme Court observed that, in light of Fields, the

question whether an unsentenced county prisoner may experience a

Shatzer break in custody is an open one. Commonwealth v. Keaton, 45

A.3d 1050, 1068 n.9 (2012).       Our research has uncovered very little

decisional law on point. One notable exception is United States v. Ellison,

632 F.3d 727 (1st Cir. 2010), which like Fields involved the issue whether

an inmate questioned in prison was in Miranda custody at the time. Unlike

Fields and Shatzer, however, and like the case before us, the inmate in

Ellison was not a sentenced convict but rather was awaiting trial on

unrelated charges. Writing for a unanimous panel of the United States Court

of Appeals for the First Circuit, retired Justice Souter concluded that the

Shatzer analysis applied and the inmate in question, though not serving a

sentence, was not in Miranda custody. Id. at 730.

     Here, in contrast, the trial court concluded that Shatzer was

inapplicable, reasoning that because Champney was a pre-trial detainee, he

was continuously in Miranda custody and the conclusive            Edwards

presumption applied.   Trial Ct. Op. at 15-16.   The trial court stated that

“Champney’s situation was akin to that of the defendant in Roberson,” in

that “Champney was not a sentenced felon serving time[,] . . . was in jail

only because he was awaiting trial on [unrelated] charges, and it was Sgt.

Shinskie to whom Champney had invoked his right to have counsel present.”

Id. According to the trial court, because “Champney had no opportunity to

return to the normalcy of the life he had before being arrested on the

                                  - 29 -
J-E03005-16



[unrelated] charges,” the Edwards presumption still applied when Sgt.

Shinskie interrogated Champney on May 13, 1998. Id. at 15-16. The trial

court’s position, embraced by the panel decision in this case, is that the

Shatzer break-in-custody analysis applies only to prisoners who are serving

a sentence upon conviction, and never to prisoners not serving a sentence.

We disagree.

      Preliminarily, we note that the question required by Shatzer is not, as

the trial court suggested, whether Champney had the chance to return to

the normalcy of his pre-arrest life outside of prison. Rather, we must ask

whether Champney’s return to prison following the initial interrogation on

December 23, 1997 represented the same sort of “return to normalcy”

experienced by Shatzer after his initial interrogation, when he too was

returned to the general prison population. In other words, when Champney

was in county prison from December 23, 1997 until his re-interrogation on

May 13, 1998, was he continuously subject to the same “inherently

compelling pressures” contemplated by Miranda, or was he instead subject

simply to “the ordinary restrictions of prison life.” If the former, then Sgt.

Shinskie was barred from re-approaching Champney until such time as he

was either released from prison or convicted and sentenced on the pending

charges.   If the latter, then Champney experienced the sort of break in




                                    - 30 -
J-E03005-16



Miranda custody, well longer than the 14-day minimum, that made the May

13, 1998 re-interrogation entirely lawful.21

        After a careful review of Shatzer and Fields, we find no material

difference for purposes of the break-in-custody analysis between the

incarceration described in those cases and that experienced by Champney.

Champney was not detained on the murder charge, but rather on separate

offenses for which he had been held in the Schuylkill County Prison for

failure to post bond or in lieu of bail. Champney’s daily life in county prison

between December 23, 1997 and May 13, 1998, so far as the record reveals,

did not include the sort of coercive pressures inherent in “interrogative

custody,” Shatzer, 559 U.S. at 113 n.8, that Miranda and Edwards are

meant to deflect.

        First, Champney had been held in the prison since at least October 23,

1997.        Thus, on May 13, 1998, Champney was not “abruptly transported

from the street into a police-dominated atmosphere.” Fields, 565 U.S. at

511 (internal quotation omitted).          Rather, Champney had already been in

the county prison for nearly six months, “liv[ing] among other inmates,
____________________________________________


        21
         One longstanding criticism of an expansive reading of Edwards,
addressed by the Supreme Court’s decision in Shatzer, was that it created
the “question-proof inmate,” meaning that suspects who remained
incarcerated after invoking their Miranda rights would be permanently
immune from re-interrogation by authorities as long as they remained
incarcerated.   See, e.g., Laurie Magid, Questioning the Question-Proof
Inmate: Defining Miranda Custody for Incarcerated Suspects, 58 Ohio. St.
L.J. 883, 895 (1997).



                                          - 31 -
J-E03005-16



guards, and workers,” and presumably provided the opportunity to “receive

visitors and communicate with people on the outside by mail or telephone.”

Shatzer, 559 U.S. at 113. Although we recognize that the “harsh realities”

of prison life may be unpleasant, id. at 113, Champney, much like the

prisoners in Shatzer and Fields, had ample opportunity to adjust to “the

ordinary restrictions of prison life, [which] are expected and familiar.”

Fields, 565 U.S. at 511.22
____________________________________________


       22
          In concluding that Champney was in interrogative custody from
December 23, 1997 through May 13, 1998, the trial court relied principally
on the Supreme Court’s decision in Arizona v. Roberson, 486 U.S. 675
(1988).     There, the Court addressed the applicability of Edwards to
statements made by a burglary suspect who invoked his right to counsel on
arrest and then, after being held in police custody for three days, was
approached by another police officer about a different burglary. Id. at 687-
88. The Roberson court suppressed the resulting statements, declining the
state’s request that it create an exception to Edwards when officers
question a suspect about a crime other than that of arrest. Here, the trial
court found that because Champney was, like the suspect in Roberson, in
custody but not serving a sentence upon conviction, Shatzer was
distinguishable and the Edwards presumption applied to Champney’s May
13, 1998 statements. Trial Ct. Op. at 12-16. We disagree.

       While Champney was not serving a sentence, his custody in the county
prison was fundamentally different from the interrogative detention of the
burglary suspect in Roberson, who was in the continuous custody of his
interrogators for three days. Indeed, in Roberson no one argued that the
suspect was not in Miranda custody; instead, the government was asking
for an exception to Edwards that would have permitted re-interrogation of a
suspect still subject to such custody. Champney, in contrast, was awaiting
trial in the county prison for over four months between interrogations, far
removed from Sgt. Shinskie. Roberson, read in light of Shatzer and
Fields, plainly does not cloak every incarcerated suspect with immunity
from questioning simply because the suspect was not serving a sentence
upon conviction.



                                          - 32 -
J-E03005-16



       Second, nothing in the record suggests that Sgt. Shinskie had the

ability to free Champney from his incarceration on unrelated charges if he

were to talk about the Bensinger homicide, or that Champney believed Sgt.

Shinskie had that ability. Champney was awaiting prosecution on multiple

charges from multiple incidents unrelated to Bensinger’s death, which were

proceeding through the court system. There was little risk that Champney,

unlike a suspect in interrogative custody, felt “pressured to speak by the

hope that, after doing so, he [would] be allowed to leave and go home.”

Fields, 559 U.S. at 511.23           Champney could not rationally expect that

answering questions or giving a statement about Bensinger’s death would

secure his freedom from the multitude of charges pending against him. Like

the sentenced prisoners in Shatzer and Fields, Champney must have

known “that when the questioning cease[d], he [would] remain under

confinement.” Fields, 559 U.S. at 511; see also Ellison, 632 F.3d at 730.

____________________________________________


       23
         Justice Souter’s analysis for the First Circuit in Ellison applies with
equal force here:

            It is true that the condition of someone being held awaiting
            trial, like Ellison, is not exactly the same as the convict’s
            position, since the suspect might reasonably perceive that
            the authorities have a degree of discretion over pretrial
            conditions, at least from the point of making
            recommendations to a court. But we see nothing in the
            facts of this case that would be likely to create the
            atmosphere of coercion subject to Miranda concern.

Ellison, 632 F.3d at 730.



                                          - 33 -
J-E03005-16



       Third, the duration of Champney’s pre-trial detention was based on the

unrelated charges pending against him, for which he either failed to make

bail or was held in lieu of bail. Each time Champney ended a conversation

with Sgt. Shinskie, he returned to the general prison population; nothing in

the record suggests that police possessed the ability to reward Champney

for cooperating in the Bensinger investigation or punish him for exercising

his rights. Because Champney could not rationally believe that Sgt. Shinskie

had power over his detention on the pending charges, he could not be

“motivated by the reaction he expects from his listeners” and thus compelled

to avoid “reprisal from remaining silent” or, conversely, “hope [for] more

lenient treatment should he confess.” Fields, 559 U.S. at 512. Under these

circumstances, we conclude that Champney’s incarceration was not the

equivalent of Miranda custody and, therefore, that he experienced a break

in such custody between December 23, 1997 and May 13, 1998.24

       Finally, pursuant to Shatzer, we conclude that the nearly five-month

break between Champney’s invocation of his right to counsel and the prison

interrogation removed the Edwards presumption of involuntariness and

permitted Sgt. Shinskie to re-approach Champney, re-read him his rights,


____________________________________________


       24
        We do not intend to suggest that pre-conviction incarceration can
never be the functional equivalent of Miranda custody. Rather, trial courts
should examine, in light of Shatzer and Fields, the circumstances under
which an unsentenced inmate is being held to determine whether that
detainee is under Miranda custody.



                                          - 34 -
J-E03005-16



and secure a valid waiver of those rights.         Nothing in the record suggests

that, between December 23, 1997 and May 13, 1998, police attempted to

interrogate or even contact Champney about the Bensinger homicide or any

other crime. This break between interrogations clearly exceeds the 14-day

time bar established in Shatzer. Thus, Champney had ample time “to get

reacclimated to his normal life, to consult with friends and counsel, and to

shake off any residual coercive effects of his prior [Miranda] custody.”

Shatzer, 559 U.S. at 110.

       As noted above, in his brief Champney does not address the

applicability of Shatzer.        He does, however, argue that his May 13, 1998

Miranda waiver was not knowing, intelligent, or voluntary.25              As the
____________________________________________


       25
         In addition to this general assertion, Champney contends in his brief
to this Court that his May 13, 1998 Miranda waiver was not knowing,
intelligent or voluntary because he waived his Miranda rights only in
relation to the arson investigations in Lehigh and Schuylkill counties and not
with respect to the Bensinger homicide investigation. Champney’s Br. at 15-
18. However, we conclude that Champney has waived this argument, as he
failed to develop it by discussion or analysis of relevant legal authority. See
Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa.Super. 2006) (“[A]rguments
which are not appropriately developed are waived . . . includ[ing] those
where the party has failed to cite any authority in support of a contention”).
Further, Champney did not raise this specific argument either in his
suppression motion or before the trial court at the suppression hearing, and
elected not to file a brief in support of his suppression motion.

      Even had Champney preserved this argument, we would conclude that
it does not merit relief. First, “a suspect’s awareness of all the possible
subjects of questioning in advance of interrogation is not relevant to
determining whether the suspect voluntarily, knowingly, and intelligently
waived his Fifth Amendment privilege.” Colorado v. Spring, 479 U.S. 564,
577 (1987). Second, Champney cites neither relevant legal authority in
(Footnote Continued Next Page)


                                          - 35 -
J-E03005-16



Commonwealth accurately observes, however, “the record is devoid of any

evidence that Champney’s will was overborne, that Shinskie was acting

aggressively or relentlessly in order to secure a Miranda waiver, or, that

Champney was threatened in any fashion.” Cmwlth.’s Reply Br. at 7-8. We

agree with the Commonwealth that this alternative argument for affirmance

is without merit.

      In sum, we conclude that while Champney invoked his right to counsel

on December 23, 1997, there was a sufficient break in custody between then

and May 13, 1998 that Champney’s May 13, 1998 statements are not

subject to the Edwards presumption, and his Miranda waiver was valid.

Therefore, the trial court erred as a matter of law in suppressing

Champney’s May 13, 1998 statements.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/26/2017

                       _______________________
(Footnote Continued)

support of this argument nor evidence of record that his waiver was in fact
so limited. We note that the standard waiver form signed by Champney and
Sgt. Shinskie referenced no particular offense. Moreover, given that Sgt.
Shinskie had questioned Champney about the Bensinger homicide during
each of their two previous interactions, Champney could hardly have been
surprised that he would raise the same subject on the third occasion.



                                           - 36 -
