                          [J-48-2013][M.O. – Castille, C.J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                 :   No. 99 MAP 2012
                                              :
                   Appellant                  :   Appeal from the Order of the Superior
                                              :   Court entered on 3/1/12 at No. 646
                                              :   MDA 2011 which reversed and
             v.                               :   remanded the PCRA Order of the
                                              :   Dauphin County Court of Common
                                              :   Pleas, Criminal Division, entered on
                                              :   12/27/06 at No. CP-22-CR-0001407-
                                              :   1998
ELTON EUGENE HILL,                            :
                                              :
                   Appellee                   :   SUBMITTED: May 3, 2013




                                CONCURRING OPINION



MR. JUSTICE SAYLOR                                DECIDED: November 21, 2014

      I believe that the trial and post-conviction records raise many questions

concerning the stewardship of Appellee’s trial counsel. Within days of the attorney’s

retention, and absent any evidence of an independent investigation on the lawyer’s part,

he recommended that Appellee submit to a polygraph examination.                 Counsel’s

explanation was that, because his “heart and everything [Appellee] said to me, I

believed that this would be a very positive thing[.]” N.T., April 25, 2006, at 50; see also

id. at 14 (“I thought that this could possibly be an outstanding result for us.”). Although

the attorney would have been permitted at least to watch (albeit without hearing) the

polygraph examination from another room, N.T., July 26, 2006, at 22, he nonetheless

returned to his office to address another matter, see id. at 15. This left an uncounseled
seventeen-year-old client to make a written statement to the polygraph examiner, then

to be turned over to the investigating officer for what can only be reasonably described

as an ensuing full-scale interrogation. See N.T., April 25, 2006, at 15, 106.

       Of course, the result of the polygraph examination was anything but positive for

Appellee, as he made key damaging admissions, which were used very effectively by

the Commonwealth at trial. In this regard, Appellee indicated that he said to his co-

perpetrator that he “wouldn’t mind beating [a member of the victims’ family’s] ass” and

that he was present on the victims’ property close in time to the ensuing crimes. N.T.,

November 18, 1998, at 285. Indeed, from all appearances, the animus which Appellee

admitted – for the first time to the polygraph examiner – appears to have been the

impetus for the home invasion that followed.1

       One constraint counsel did impose, however, was to expressly accede only to a

waiver of his client’s constitutional rights relative to the polygraph examination, as

conducted by the certified polygraph examiner. See Majority Opinion, slip op. at 9-10

(reflecting that Appellee’s waiver embodied “consent to talk with me[, i.e., Detective

Steenson, the certified polygraph examiner,] without the presence of an attorney”

(emphasis added)).     Counsel explained, in this regard, that he considered Detective

Steenson to be a “very fair” person. N.T. April 25, 2006, at 13-14, quoted in Majority

Opinion, slip op. at 7. Having agreed to a waiver incorporating such constraint, the



1
  Despite the obvious damage to the defense caused by such admission, even at the
post-conviction stage and after his client had been sentenced to serve 15 to 84 years in
prison, trial counsel continued to attempt to cast the best light on his own performance.
In this regard, the lawyer maintain that the polygraph proceedings to which he had
consented yielded “helpful” results, as Appellee had maintained that he never entered
the victims’ house, and his admissions therefore merely reflected “a young man who
finally fessed up[.]” N.T., April 25, 2006, at 22; id. (“[T]he statement, in my mind, I still
feel that way, was helpful to [Appellee].”).


                           [J-48-2013][M.O. – Castille, C.J.] - 2
attorney was obviously surprised to learn that an aggressive interrogation had been

conducted by another detective. See N.T., April 25, 2006, at 52.2

       In this landscape, I would answer the question presented on a narrower basis

than the majority opinion reflects.     Because Appellee’s express written waiver, as

approved by his counsel before the lawyer surrendered his client to police, was limited

to examination by the polygraph examiner, I would hold that a distinct waiver was

required to support subsequent interrogation by a different officer.3              In such

circumstances, whether or not counsel should have anticipated a factor-based approach

such as the First Circuit adopted in United States v. Leon-Delfis, 203 F.3d 103 (1st Cir.

2000), I believe he should at least have been aware of the express scope of the written



2
  These circumstances presented also raise questions concerning the legitimate scope
of a post-polygraph examination, in particular, when its umbrella is large enough to
extend from an exploration by the examiner of the reasons for indications of deception
during actual testing, into a full-scale interrogation by a different detective. The present
record, however, is not developed in a manner which would permit further elaboration
on such questions. For example, beyond anecdotal explanations by the detectives
involved in the present case, no evidence was presented concerning whether there are
accepted parameters or guidelines relative to post-polygraph interviews (e.g., whether
they are to be conducted by a certified examiner, whether they are to proceed in a
dispassionate fashion, etc.).

3
  In this regard, I differ with Mr. Justice Eakin’s suggestion that we are addressing a
“general unrestricted waiver.” Concurring Opinion, slip op. at 5. In point of fact, as
noted in the text above, Appellee’s actual express waiver is specific in its terms to
questioning by a specific certified polygraph examiner. I know of no authority to support
the notion that it is impossible to construct a limited waiver of the Sixth Amendment right
to counsel for the conduct of a polygraph examination entirely by an identified, certified
polygraph examiner. Moreover, what the concurrence dismisses as a “precise
limitation,” see id. at 7, is simply the limitation appearing in the waiver’s text. To the
extent the concurrence suggests the waiver should not be enforced on its terms
because there is no independent evidence to believe the parties meant for such
limitation to apply as written, this appears to represent a novel approach to the
interpretation of express waivers.


                           [J-48-2013][M.O. – Castille, C.J.] - 3
waiver executed by his client.4 Moreover, counsel’s explanations for failing to seek

suppression (i.e., that the post-polygraph interviews actually were helpful) are

exceptionally weak when read against the impact of Detective Kelly’s extensive trial

testimony recounting the interrogation, which culminated with Appellee’s breaking down,

crying, and protesting that he did not want to go to jail. See N.T., November 18, 1998,

at 286-98.

      I realize that we are speaking in matters of degree, but I have previously

commented on the enforcement of a “strong presumption of effectiveness,” Majority


4
  Justice Eakin’s suggestion that Appellee implicitly waived his right to counsel in the
post-polygraph timeframe, see Concurring Opinion, slip op. at 7-8, overlooks that, once
an accused invokes that right, he cannot later waive it unless he initiates the dialogue
with police or counsel is present. See Edwards v. Arizona, 451 U.S. 477, 484-87, 101
S. Ct. 1880, 1884-86 (1981); Commonwealth v. Keaton, 615 Pa. 675, 701, 45 A.3d
1050, 1065 (2012). Although the concurrence indicates that prior decisions of this Court
have approved a finding of an implicit waiver under “similar circumstances” to those of
the present case, Concurring Opinion, slip op. at 8, the decisions it references are
inapposite because the defendants in those matters had not invoked their right to
counsel before making the statements at issue. Hence, those cases do not undermine
the concept that, to be admissible, any further communication with the police – most
notably here, with Detective Kelly – had to have been initiated by Appellee or
undertaken upon further waiver while counsel was present.

I recognize that Edwards was clarified relative to post-polygraph interviews in Wyrick v.
Fields, 459 U.S. 42, 103 S. Ct. 394 (1982). See Majority Opinion, slip op. at 21-22. In
that matter, the Supreme Court noted that merely disconnecting a polygraph machine
does not itself terminate a waiver that was executed for the purpose of permitting a lie-
detector test to be administered. See Wyrick, 459 U.S. at 47, 103 S. Ct. at 396.
However, Wyrick reaffirmed Edwards’ totality-of-the-circumstances standard for
determining whether the questioning was within the scope of the waiver, and the Court
did not indicate that such a waiver extends beyond its express terms or to questioning
by a police officer other than the one who administered the polygraph test. Additionally,
Wyrick stated that the right to have counsel present re-attaches upon a substantial
change in circumstances after the lie-detector test is administered. See id. In my view,
interrogation by a different law enforcement officer who is not subsumed by the written
wavier amounts to such a change in circumstances.


                          [J-48-2013][M.O. – Castille, C.J.] - 4
Opinion, slip op. at 35, in scenarios in which courts are seeing much the opposite. Cf.,

e.g., Commonwealth v. Elliot, ___ Pa. ___, ___, 80 A.3d 415, 452-53 (2013) (Saylor, J.,

concurring); Commonwealth v. Sepulveda, 618 Pa. 262, 344, 55 A.3d 1108, 1157

(2012) (Saylor, J., concurring). Here, I find the arguable merit and reasonable-basis

prongs of the ineffectiveness inquiry to be readily satisfied relative to trial counsel’s

failure to seek suppression -- at least of Appellee’s statements made to the investigating

officer -- after counsel’s apparent reliance on blind faith and heartstrings yielded

essentially the opposite of the desired “outstanding result,” N.T., April 25, 2006, at 14, in

a continuing course of interrogation beyond what the lawyer had anticipated, see id. at

52.   Nevertheless, I agree with the majority that the Superior Court’s prejudice

assessment was highly superficial and, accordingly, support the award of a remand for

additional consideration in such regard.




                           [J-48-2013][M.O. – Castille, C.J.] - 5
