J-S94026-16

                                  2017 PA Super 100



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

JOSHUA MICHAEL LUKACH

                                                       No. 693 MDA 2016


                       Appeal from the Order April 5, 2016
               in the Court of Common Pleas of Schuylkill County
              Criminal Division at No(s): CP-54-CR-0001710-2015


BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.*

OPINION BY RANSOM, J.:                                 FILED APRIL 11, 2017

        The Commonwealth of Pennsylvania appeals from the order of April 5,

2016, granting in part Appellee Joshua Michael Lukach’s suppression

motion.1 After careful review, we affirm.

        The relevant facts and procedural history of this case are as follows.

See Suppression Court Opinion (SCO), 4/2/16, at 2-18.2          On August 6,

____________________________________________


1
  The Commonwealth certifies that the order suppressing evidence in this
case substantially handicaps the prosecution of this case. See Pa.R.A.P.
311(d).
2
  The interrogation of Appellee was videotaped, and a copy included in the
certified record. Due to the poor quality of the audio track, both Appellee
and the Commonwealth submitted a joint transcription which was included in
the certified record. We have reviewed both the tape and transcription. The
suppression court opinion relies heavily on, and incorporates, the
transcription.


*
    Former Justice specially assigned to the Superior Court.
J-S94026-16



2015, at approximately 5:00 a.m., Police Chief Richard Wojciechowsky of

the Pottsville Bureau of Police was called to a crime scene at South 12th

Street in Pottsville. Upon arriving, he discovered that John Brock’s body had

been found in the street. Police recovered a pair of white gloves from the

alley behind Mr. Brock’s home, a wallet from Mr. Brock’s dresser, and a bank

card on the bedroom floor.       Chief Wojciechowsky received information

indicating that Appellee and Shavinskin Thomas were persons of interest in

the homicide and that they had previously been involved in a crime at Mr.

Brock’s home.    Two officers reported seeing Appellee and Mr. Thomas

walking near the crime scene at approximately 6:00 a.m. that morning.

      At 11:00 a.m., Chief Wojciechowsky observed Appellee and Mr.

Thomas near the crime scene. He asked Appellee what he was doing in the

area, and Appellee responded that he was checking what was going on.

Appellee claimed that on the preceding evening, he and Mr. Thomas walked

around the city together, stopping at an A-Plus store around 5:00 a.m. A

Pottsville police officer went to the store and reviewed security footage from

the relevant time.    Still photographs were taken of the two customers

present in the store; however, neither was Appellee.

      Around 5:00 p.m. that evening, Appellee’s mother consented to a

search of her home. Police recovered box cutters from Appellee’s bedroom,

aware that box cutters had been used in the murder. Police also recovered

a pair of white work gloves which were similar to gloves found in the alley

behind Mr. Brock’s home.

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J-S94026-16



        On August 7, 2015, Appellee was arrested on two outstanding

summary offense warrants and brought to City Hall for questioning. Chief

Wojciechowsky advised Appellee of his Miranda3 rights, and Appellee

acknowledged he understood them.                 Chief Wojciechowsky questioned

Appellee about his whereabouts on the night of the murder. At 1:25 p.m.,

Appellee informed Chief Wojciechowsky, “I don’t know, just, I’m done

talking. I don’t have nothing to talk about.” See TCO at 12.

        Instead of taking this as a request to end the conversation, Chief

Wojciechowsky advised Appellee that he did not have to speak to police,

stating, “You don’t have to say anything, I told you that you could stop.”

However, Chief Wojciechowsky continued to ask questions, told Appellee

that he did not believe his story, and informed Appellee that police officers

had collected evidence from the crime scene for processing. At 1:36 p.m.,

police officers confiscated Appellee’s shoes. Chief Wojciechowsky continued

to pepper Appellee with questions.

        At 1:52 p.m., Appellee requested that Chief Wojciechowsky stop the

video tape. At 1:57 p.m., Chief Wojciechowsky turned the videotape back

on and asked Appellee whether he had been threatened, yelled at, or

promised anything while the tape was off. Appellee responded that he had

not.    Appellee then requested to speak to a representative of the District


____________________________________________


3
    Miranda v. Arizona, 86 S. Ct. 1602 (1966).



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J-S94026-16



Attorney’s Office in exchange for a potential “deal.” The video stopped again

at 2:00 p.m., and the prosecutor arrived at 2:23 p.m., at which time the

video was turned on again.4          Appellee was again advised of his Miranda

rights by Chief Wojciechowsky.

       Subsequently, Appellee gave a detailed statement to police, confessing

his involvement in the murder. As a result of Appellee’s statement, police

obtained video surveillance of Appellee accessing an ATM on the morning of

the homicide.       Police also recovered from a storm drain the following

evidence: the victim’s credit card, hat, shirt, and sunglasses.

       Appellee was charged with murder. Prior to trial, he filed an omnibus

pre-trial motion, seeking to suppress statements made to police after he

stated that he “[did not] want to talk” and was “done talking.” The motion

also sought to suppress evidence recovered as a result of Appellee’s

statements, including Appellee’s shoes.

       Hearings were held January 12, 2016, and January 13, 2016.        Chief

Wojciechowsky testified that he did not interpret Appellee’s statements as an

immediate invocation of the right to remain silent and wanted to “be

absolutely certain that [Appellee] was still aware of that right.”   Detective

Kirk Becker testified that if the credit card had not been recovered from the


____________________________________________


4
  The record is silent as to what occurred during that time. In contrast to
the earlier break, Chief Wojciechowsky did not question Appellee about the
intervening time upon restarting the tape at 2:23 p.m.



                                           -4-
J-S94026-16



storm drain, police could have obtained the ATM footage regardless through

credit checks and by subpoenaing Mr. Brock’s account access records.

      On April 5, 2016, the court issued an order granting Appellee’s motion

in part.    The court suppressed statements made by Appellee following his

assertion that he was done talking; Appellee’s shoes and any evidence

obtained from them; and the items recovered from the storm drain.            The

court admitted all statements made prior to Appellee’s assertion that he was

done talking and surveillance video from the ATM machine.

      The    Commonwealth     timely   appealed   and   filed   a   court-ordered

Pa.R.A.P. 1925(b) statement of errors complained of on appeal.               The

suppression court issued a responsive opinion adopting its April 5, 2016

opinion and order.

      On appeal, the Commonwealth raises three issues for our review:

      1. Did the suppression court err in finding that the Appellee
      made a clear and unambiguous assertion of his right to remain
      silent during police questioning?

      2. Did the suppression court err in finding that the police violated
      Appellee[’s] Fifth Amendment privilege against self-incrimination
      and thus err in suppressing incriminating statements made to
      police?

      3. Did the suppression court err in suppressing certain physical
      evidence (credit card, hat, shirt, and sunglasses) as fruit of the
      poisonous tree?

Commonwealth’s Brief at 5.

      When the Commonwealth appeals from a suppression order:




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J-S94026-16


      we follow a clearly defined standard of review and 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. The suppression court’s
      findings of fact bind an appellate court if the record supports
      those findings. The suppression court’s conclusions of law,
      however, are not binding on an appellate court, whose duty is to
      determine if the suppression court properly applied the law to
      the facts.

Commonwealth v. Miller, 56 A.3d 1276, 1278–79 (Pa. Super. 2012).

      The   Commonwealth     first   claims   that   the   trial   court   erred   in

suppressing Appellee’s statement because his invocation of his right to

remain silent was not clear and unambiguous. See Commonwealth’s Brief at

9. The Commonwealth argues that the statement was wavering, qualified,

and left police unsure as to Appellee’s intentions. Id.

      A suspect is entitled to Miranda warnings prior to a custodial

interrogation. Commonwealth v. Boyer, 962 A.2d 1213, 1216 (Pa. Super.

2008) (noting that defendant’s statement “I don’t want to talk to you” was

an invocation of his Miranda rights). If a suspect “indicates, in any manner,

at any time prior to or during questioning, that he wishes to remain silent,

the interrogation must cease.” Commonwealth v. Henry, 599 A.2d 132,

1323 (Pa. Super. 1991) (internal citations omitted).        However, the United

States Supreme Court has held that the invocation of the right to remain

silent or request an attorney must be affirmative, clear, and unambiguous.

See Berghuis v. Thompkins, 130 S. Ct. 2250, 2259-60 (2010); see also

Commonwealth v. Briggs, 12 A.3d 291, 318 n.27 (Pa. 2011) (noting that


                                      -6-
J-S94026-16


the Supreme Court has held that an individual in police custody subject to

interrogation must affirmatively invoke his or her Miranda rights).

      In Berghuis, the defendant was silent during the first two hours and

forty-five minutes of a three-hour interrogation.    Berghuis, 130 S. Ct. at

2256-57. He did not state that he wished to remain silent, that he did not

want to talk to the police, or that he wanted an attorney.     Id.    However,

towards the end of the interrogation, a police officer asked defendant

whether he prayed to God to forgive him for the shooting, to which the

defendant responded, “Yes.” Berghuis, 130 S. Ct. at 2257. The defendant

refused to sign a written confession and argued that his statement to

detectives should have been suppressed because he had invoked his right to

remain silent. Id. The United States Supreme Court affirmed the denial of

defendant’s motion to suppress, holding that the invocation of the right to

remain silent must be affirmative, clear, and unambiguous. Berghuis, 130

S. Ct. at 2260. The defendant’s silence, without an affirmative invocation or

statement, did not suffice. Id.

      Pennsylvania courts have addressed Berghuis in passing but have not

directly discussed its applicability.   For example, in Briggs, the defendant

argued that the trial court should have suppressed his spontaneous

confession to police and averred he had not been given his Miranda

warnings. Briggs, 12 A.3d at 318-19. In a footnote, the Court referenced

the Berghuis holding and acknowledged the defendant’s request to speak to


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J-S94026-16


a lawyer was an invocation of those rights. Id. at n.27. However, the Court

concluded that the conversation with police officers had not constituted an

interrogation and accordingly, Miranda protections did not attach.     Id. at

323-24.    Similarly, Commonwealth v. Guess also cites Berghuis in a

footnote. See Commonwealth v. Guess, 53 A.3d 895, 901-02, n.15 (Pa.

Super. 2012).     There, the defendant argued that evidence should be

suppressed because he was unlawfully detained prior to his arrest.        Id.

Although the defendant did not challenge statements made to the police

during a mere encounter, the Court observed in a footnote that silence by

the accused does not provide an unambiguous signal to the police that the

accused has invoked Fifth Amendment protections. Guess, 53 A.3d at 902

n.15.

        The Commonwealth also directs our attention to Commonwealth v.

Champney, 65 A.3d 386 (Pa. 2013) (plurality). In that case, an evenly split

Pennsylvania Supreme Court affirmed the trial court’s grant of a suppression

motion. Id.    The defendant argued that the words, “I think I want to talk to

[my attorney] before I make a statement,” were a clear and unambiguous

invocation of his right to counsel. See Champney, 65 A.3d at 387-89. The

opinion in support of affirmance agreed, finding that the phrase, “I think,”

was colloquially used to express beliefs and did not render the request

ambiguous. Id. (citing United States v. Davis, 114 S. Ct. 2350 (1994)).

The opinion in support of reversal contended that Davis was inapposite as,


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J-S94026-16


in that case, the defendant had clarified that he did not really want an

attorney, and the Davis Court had merely deferred to the lower court’s

finding of ambiguity.       See Champney, 65 A.3d at 400.          The opinion in

support of reversal contended that Berghuis controlled and the defendant’s

statement was not unequivocal. Id.

       Here, there is no dispute that Appellee was advised of his Miranda

rights at the outset of questioning.           The question is whether or not his

statement, “I don’t know, just, I’m done talking. I don’t have nothing to talk

about” was a clear and unequivocal invocation of his right to remain silent,

pursuant to Berghuis. We hold, under the facts of the case, that it was.

       The Commonwealth relies upon a number of decisions from other state

and federal jurisdictions to support its contention that Appellee’s statement

was ambiguous.5        See United States v. Adams, 820 F.3d 317 (8th Cir.

2016) (finding that defendant’s statement “I don’t want to talk, man” was

ambiguous because of an immediate subsequent statement “I mean” was

meant to explain the previous statement); United States v. Havlik, 710

F.3d 818, 822 (8th Cir. 2013) (noting that statements “I guess you better

get me a lawyer” and “Could I call my lawyer” were ambiguous because a

____________________________________________


5
  This Court “is not bound by the decisions of federal courts, other than the
United States Supreme Court, or the decisions of other states’ courts . . .
[H]owever, we may use them for guidance to the degree we find them
useful and not incompatible with Pennsylvania law.” Eckman v. Erie Ins.
Exch., 21 A.3d 1203, 1207 (Pa. Super. 2011) (internal citation omitted).



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J-S94026-16


reasonable officer would have understood the suspect to be asking about the

right to call a lawyer.”); Owen v. Florida Dept. of Corrections, 686 F.3d

1181, 1194 (11th Cir. 2012) (finding that defendant’s statements “I’d rather

not talk about it” and “I don’t want to talk about it” in response to specific

questions were ambiguous where defendant continued to speak to police);

State v. Cummings, 850 N.W.2d 915 (Wis. 2014) (discussing the

difference between “I don’t want to talk about this” and “I don’t know

nothing about this”). As will be discussed below, none of these decisions are

binding precedent on this Court, nor do they implicate similar statements or

situations to the instant case.6

       For example, the Havlik Court found the defendant’s statement, “I

guess I need to get [a lawyer],” insufficient to trigger the obligation to cease

questioning, because a reasonable police officer could have understood the

suspect to be inquiring whether he had the right to call a lawyer.         See
____________________________________________


6
   In contrast, the Commonwealth also cites a number of cases as examples
of clear and unequivocal statements. We would note that they are more in
line with Appellee’s statement than with the previous examples.           See
Boyer, 962 A.2d at 1218 (holding that “I don’t want to talk to you” was an
invocation of the right to remain silent); see also Garcia v. Long, 808 F.3d
771 (9th Cir. 2015) (finding that “no” in response to question “do you wish
to talk to me” was a clear assertion of Miranda rights); United States v.
Lee, 413 F.3d 622 (7th Cir. 2005) (finding clear assertion of right to counsel
where defendant asked “Can I have a lawyer?”); Smith v. Illinois, 105 S.
Ct. 490, 495 (1984) (holding that an accused’s post-request responses to
further interrogation may not be used to cast retrospective doubt on the
clarity of the initial request itself).




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J-S94026-16


Havlik, 710 F.3d at 821. Here, Appellee made a clear statement that he did

not wish to talk anymore.     The Owen court found that defendants’ two

statements, “I’d rather not talk about it,” were made thirty minutes apart, in

responses to questions about very specific details and were not indications

that the defendant wished to stop talking, but did not want to provide details

on discrete issues, though the defendant was otherwise willing to talk and

continued talking after his first request. Owen, 686 F.3d at 1193-94. Here,

Appellee made the request in response to general questioning and indicated

his desire to cease speaking to Chief Wojciechowsky. That request was not

honored. Finally, Appellee cites to State v. Cummings, which noted that

the statement, “I don’t want to talk about this,” indicated a desire to cut off

questioning while “I don’t know nothing about this” was an exculpatory

statement proclaiming innocence, which the Cummings court found

incompatible with a desire to cut off questioning. Cummings, 850 N.W.2d

at 928. In that case, the defendant made both statements alternately while

continuing to respond to police questioning, unlike the instant case.

      The   Commonwealth     takes   issue    with   every   part   of   Appellee’s

statement, including the words, “I don’t know,” “I’m done talking,” and “I

don’t have anything to talk about.”     See Commonwealth’s Brief at 10-18.

The Commonwealth argues that the statement was not “clean and clear” and

suggests that Appellee should have said solely “I don’t want to talk to you.”

Id. at 13. This suggests a bright line rule that does not take into account


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J-S94026-16


the surrounding circumstances of the case, nor the entire context of

Appellee’s statement. Although ineloquently phrased, Appellee’s statements

were not qualified. They were not ambiguous. They were not equivocal. In

response to continued questioning, Appellee stated, “I don’t know, just, I’m

done talking. I don’t have nothing to talk about.” See TCO at 12. This was

the sort of statement that would lead a reasonable police officer, in those

circumstances, to understand the statement to be a request to remain silent.

See, e.g., Champney, 65 A.3d at 387.

      We decline to adopt the rigid, bright line rule for invocation suggested

by the Commonwealth. Accordingly, we conclude that Appellee invoked his

right to remain silent and the suppression court did not err in finding that he

had made a clear and unambiguous invocation. See Berghuis, 130 S. Ct.

at 2260.

      Next, the Commonwealth claims that the suppression court erred in

finding that police had violated Appellee’s Fifth Amendment privilege against

self-incrimination.   See Commonwealth’s Brief at 9.      The Commonwealth

contends that Appellee made a conscious and knowing decision to confess,

and that his confession was not coerced. Id.

      While Miranda protections prohibit the continued interrogation of an

interviewee in custody once he has invoked his right to remain silent, further

interrogation does not constitute a per se violation of that right.       See

Commonwealth v. Bess, 789 A.2d 757, 762 (Pa. Super. 2002); see also


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J-S94026-16


Commonwealth v. Russell, 938 A.2d 1082, 1090 (Pa. Super. 2007).            A

suppression court reviewing a statement made after the initial invocation of

the right to remain silent must consider:

      [t]he circumstances attending the defendant’s invocation of his
      or her right to silence, as well as the circumstances attending
      any further attempt at questioning. Hence, the test should ask
      whether the official purpose of resuming questioning was to
      entice the arrestee to abandon his right to remain silent, or
      simply to find out whether he or she had a change of mind. Only
      then can it be concluded whether, in fact, the defendant’s right
      to cut off questioning was scrupulously honored.

Henry, 599 A.2d at 1325.

      Henry adopted the requirement that police “scrupulously honor” a

defendant’s request from Michigan v. Mosley, 96 S. Ct. 321 (1975), which

held that law enforcement officials must respect a person’s exercise of the

option to terminate questioning in order to counteract the coercive pressure

of the custodial setting.   Mosley, 96 S. Ct. at 327   (finding that Mosley’s

right to cut off questioning was fully respected where police officers

immediately ceased interrogation and did not try to resume questioning or

persuade Mosley to reconsider his position). The analysis regarding whether

police scrupulously honored defendant’s request focuses on:

      (1) whether the defendant was advised of her Miranda rights
      before both interrogations; (2) whether the officer conducting
      the first interrogation immediately ceased the questioning when
      the defendant expressed his desire to remain silent; and (3)
      whether the second interrogation occurred after a significant
      time lapse, and whether it was conducted in another location by
      another officer.

Russell, 938 A.2d at 1090-91.

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J-S94026-16


       It is the Commonwealth’s burden to establish that a defendant

knowingly and voluntarily waived his Miranda rights. Commonwealth v.

Cohen, 53 A.3d 882, 885–86 (Pa. Super. 2012).              A defendant must

explicitly waive his Miranda rights by making an outward manifestation of

that waiver. Id. The determination of whether the waiver is valid depends

on:

       (1) whether the waiver was voluntary, in the sense that
       defendant’s choice was not the end result of governmental
       pressure, and (2) whether the waiver was knowing and
       intelligent, in the sense that it was made with full comprehension
       of both the nature of the right being abandoned and the
       consequence of that choice.

Commonwealth v. Mitchell, 902 A.2d 430, 451 (Pa. 2006).

       If the totality of the circumstances reveals an uncoerced choice and

the requisite level of comprehension, a court may properly find that

Miranda rights have been waived. See, e.g., Commonwealth v. Martin,

101 A.3d 706, 724 (Pa. 2014);7 Commonwealth v. Cephas, 522 A.2d 63,


____________________________________________


7
  Factors this Court may consider include: “the means and duration of the
interrogation, including whether questioning was repeated, prolonged, or
accompanied by physical abuse or threats thereof; the length of the
accused’s detention prior to the confession; whether the accused was
advised of his or her constitutional rights; the attitude exhibited by the
police during the interrogation; the accused's physical and psychological
state, including whether he or she was injured, ill, drugged, or intoxicated;
the conditions attendant to the detention, including whether the accused was
deprived of food, drink, sleep, or medical attention; the age, education, and
intelligence of the accused; the experience of the accused with law
enforcement and the criminal justice system; and any other factors which
(Footnote Continued Next Page)


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J-S94026-16


65 (Pa. Super. 1987) (finding that defendant’s schizophrenia rendered him

unable to knowingly and voluntarily waive his Miranda rights).

      Finally, when considering a confession obtained after illegal conduct by

police officers, the relevant factors the court considers when determining

whether the original taint has been sufficiently purged include: (1) whether

Miranda warnings were again administered; (2) the “temporal proximity” of

the illegal police conduct to the confession; (3) the presence of intervening

circumstances or events; and (4) the purpose and flagrancy of the official

misconduct. See Commonwealth v. Burno, --- A.3d ---, *16 (Pa. 2017)

(citing Commonwealth v. Green, 581 A.2d 544, 550-51 (Pa. 1990)).

      Further, the United States Supreme Court has held, in a companion

case to Miranda, that officials may not benefit from the coercive

interrogation of other officers, and that belated warnings are not sufficient to

protect a defendant.        Westover v. United States, 86 S. Ct. 1602, 1639

(1966). In Westover, the defendant was arrested and questioned through

the night and into the next morning without being apprised of his right to

remain silent and his right to counsel. Westover, 86 S. Ct. at 1639. The

next day, Federal Bureau of Investigation (“FBI”) agents took over the

interrogation, gave the defendant advisory warnings, and proceeded to

                       _______________________
(Footnote Continued)

might serve to drain one's powers of resistance to suggestion and coercion.”
See Martin, 101 A.3d at 724-25.




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question him regarding crimes committed in another state. Id. After two

hours of questioning, the defendant confessed to those crimes.       Id.   The

Westover Court held that the confession obtained by the FBI was

inadmissible, as the interrogation leading to that statement followed on the

heels of prolonged questioning commenced in violation of the defendant’s

rights, and that the defendant was unable to knowingly and intelligently

waive his rights. Id. The belated warnings were “not sufficient” to protect

the defendant, and the FBI could not benefit from the pressure applied

during the previous interrogation. Id.

     With these principles in mind, we first consider the period of time

between Appellee’s invocation of his right to remain silent and the point at

which he requested to speak to the district attorney.        As noted above,

continued interrogation does not constitute a per se violation of a

defendant’s Fifth Amendment right.       See Bess, 789 A.2d at 762.        We

consider the circumstances surrounding the invocation, the interrogation,

and whether the police officers scrupulously honored that request. Henry,

599 A.2d at 1325. In the instant case, Appellee stated that he was “done

talking,” but Chief Wojciechowsky continued to interrogate him for another

thirty minutes.   See TCO at 11-16.      This interrogation included informing

Appellee that police officers were recovering evidence from the scene as well

as pressuring him to confess. Id. During this time period, Appellee’s shoes




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J-S94026-16


were taken from him so that evidence could be gathered from them, further

heightening the coercive nature of this continued interaction. Id.

      From     these   circumstances,      we      cannot       conclude    that      police

scrupulously honored Appellee’s request to remain silent. Henry, 599 A.2d

at 1325. Further, there was no pause in the interrogation; it continued in

the same location, by the same police officer. Russell, 938 A.2d at 1091.

Accordingly, all statements made by Appellee and evidence recovered from

Appellee during this time period were properly suppressed.

      However, the Commonwealth argues that Appellee’s subsequent

inculpatory    statement   should   not    be     suppressed       because     his     Fifth

Amendment rights were not violated. See Commonwealth’s Brief at 9. The

Commonwealth asserts that because Appellee was read his Miranda rights

prior to speaking to the district attorney, he voluntarily waived them, curing

the taint of the previous illegal interrogation.          Id.    Appellee disputes this

assertion, suggesting that the interview conducted by Chief Wojciechowsky

was   overly   coercive    and   that   any      waiver    made     by     Appellee    was

presumptively invalid as a result.               See Appellee’s Brief at 15-25.

Accordingly, considering the totality of the circumstances, we must also

determine whether Appellee’s waiver was valid. Martin, 101 A.3d at 724-

25; Green, 581 A.2d at 51.

      First, we note the illegal conduct of the police. As discussed, supra,

Appellee invoked his right to remain silent, and this right was not


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scrupulously honored by police.    See Henry, 599 A.2d at 1325; Russell,

938 A.2d at 1090-91.      To the contrary, Chief Wojciechowsky continued to

pepper Appellee with accusations and questions, kept up without pause.

See TCO at 11-15 (continued questioning focused on evidence recovered

from the crime scene and Appellee’s mother’s home; Chief Wojciechowsky’s

questioning was focused on obtaining a confession from Appellee by telling

him that if he was truthful, people would want to help him).

      Next, we note the timing of Appellee’s interrogation. The interrogation

began at approximately 1:05 p.m. See TCO at 7. Appellee invoked his right

to remain silent twenty minutes later. See TCO at 12. Chief Wojciechowsky

continued to interrogate him for approximately thirty minutes prior to

Appellee’s request to speak to the district attorney.        See TCO at 12-15.

Chief Wojchiechowsky then turned off the camera for twenty minutes until

the prosecutor arrived.    See TCO at 17.      In total, only twenty minutes

passed between the illegal conduct and the confession, and as noted above,

the record is silent as to what occurred during that time.

      Thus, due to the coercive nature of the circumstances and the impact

of the continuous period of questioning, Appellee did not knowingly and

voluntarily waive his Miranda rights.    See Westover, 86 S. Ct. at 1639

(noting that despite warnings given at the outset of a continued interview,

from the defendant’s point of view, warnings were given at the end of the




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interrogation process).    Accordingly, the suppression court properly ruled

that Appellee’s statement was inadmissible.

        Finally, the Commonwealth argues that the suppression court erred in

suppressing physical evidence obtained as a result of Appellee’s confession

as fruit of the poisonous tree.       See Commonwealth’s Brief at 5.            The

Commonwealth avers that a violation of Appellee’s Fifth Amendment right is

not the same as a violation of Miranda.          Id. at 24.       Accordingly, the

Commonwealth argues that non-testimonial evidence derived from the

statement is still admissible. Id. at 24-26.

        “The ‘fruit of the poisonous tree’ doctrine excludes evidence obtained

from,    or   acquired    as   a   consequence   of,    lawless    official   acts.”

Commonwealth v. Brown, 700 A.2d 1310, 1318 (Pa. Super. 1997). Such

an argument requires an antecedent illegality.         See Commonwealth v.

Johnson, 68 A.3d 930, 946 (Pa. Super. 2013); see also Commonwealth

v. Abbas, 852 A.2d 606, 610 (Pa. Super. 2004). Further,

        [w]e need not hold that all evidence is “fruit of the poisonous
        tree” simply because it would not have come to light but for the
        illegal actions of the police. Rather, the more apt question in
        such a case is whether, granting establishment of the primary
        illegality, the evidence to which instant objection is made has
        been come at by exploitation of that illegality or instead by
        means sufficiently distinguishable to be purged of the primary
        taint.

Commonwealth v. Loughnane, 128 A.3d 806, 815 (Pa. Super. 2015)

(citation omitted).




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     As discussed above, Appellee’s inculpatory statements were not

voluntarily made and were properly suppressed.          Accordingly, evidence

obtained as a result of the statements, unless from a means sufficiently

distinguishable to be purged of the primary taint, was properly suppressed.

Loughnane, 128 A.3d at 815.      The suppression court held, based on the

record, that the Commonwealth had not provided sufficient grounds to

determine how the evidence at issue, including Appellee’s shoes and various

items recovered from a storm drain near the victim’s home, would have

been found absent Appellee’s statement. We see no error in this conclusion

and, accordingly, affirm. Miller, 56 A.3d at 1278–79.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/2017




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