                                   [J-48-2013]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT

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


COMMONWEALTH OF PENNSYLVANIA, :               No. 99 MAP 2012
                              :
               Appellant      :               Appeal from the order of Superior Court at
                              :               646 MDA 2011, dated March 1, 2012,
                              :               reversing the PCRA Order of the Dauphin
         v.                   :               County Court of Common Pleas at No.
                              :               CP-22-CR-0001407-1998, dated
                              :               December 27, 2006.
ELTON EUGENE HILL,            :
                              :               42 A.3d 1085 (Pa. Super. 2012)
               Appellee       :
                              :               SUBMITTED: May 3, 2013


                                          OPINION


MR. CHIEF JUSTICE CASTILLE                             DECIDED: November 21, 2014
        In this Post Conviction Relief Act (“PCRA”)1 appeal, we consider a claim of

ineffective assistance of counsel relative to counsel’s failure to seek suppression of an

inculpatory post-polygraph statement made subsequent to a pre-polygraph counseled

waiver of the federal constitutional rights afforded under Miranda v. Arizona, 384 U.S.

436 (1966). The PCRA court below denied relief. A divided Superior Court reversed

and remanded in a 2-1 decision, in the process adopting and applying a test for

measuring Miranda waivers devised by the U.S. Circuit Court of Appeals for the First

Circuit after the trial in this matter.   The panel majority held that: appellee’s pre-

polygraph Miranda waiver did not encompass the post-polygraph interview; the

1
    42 Pa.C.S. §§ 9541-9546.
Commonwealth failed to prove that appellee validly waived his Sixth Amendment right

to counsel for the post-polygraph interview; appellee’s trial counsel lacked a reasonable

basis for failing to seek suppression of the statement; and the admission of the

statement at trial was prejudicial. We accepted review because the Superior Court’s

approach led to an underlying merits holding – that federal law may require a second

set of Miranda warnings and a second Miranda waiver before police may conduct a

post-polygraph interview – that presents an important issue of first impression. For

reasons that follow, we hold that the Superior Court’s approach was flawed in multiple

respects, requiring a remand to that court to reconsider the ineffectiveness claim under

the proper review paradigm. Accordingly, we vacate the order of the Superior Court

and remand for reconsideration of the issue consistently with this Opinion, and for

consideration of appellee’s remaining appellate issue.

      Because the issue involves a failure to seek suppression, there is no pre-trial

suppression hearing record. The courts below focused on competing factual accounts,

including appellee’s testimony, offered at the PCRA hearing, without looking to the trial

record; the parties’ appellate presentation to this Court has a similar focus. However,

because appellee’s various statements to police were introduced at trial, the trial

transcript also includes substantial evidence relevant to the circumstances surrounding

those statements.    The failure to recognize relevant evidence in the trial record

contributed to the Superior Court’s ultimate legal error, as we will explain. Given these

circumstances, we must begin with a factual and procedural overview essential to

obtain an accurate understanding of the merits issue.

                                           I.

      The trial evidence, which included various statements appellee made to police

investigators as well as appellee’s own testimony, established that after leaving a party




                                     [J-48-2013] - 2
in the early morning hours of April 18, 1998, appellee and James Purcell engaged in a

pattern of destructive behavior which included Purcell using a baseball bat to smash

mailboxes while leaning from the front-passenger-side window of appellee’s vehicle, as

appellee drove the vehicle. At some point in their travels, appellee passed the home of

a family (the victims) in Dauphin County, and appellee told Purcell that he would not

mind assaulting the victims’ teenage son. Thereafter, appellee and Purcell returned to

the residence and stood outside of the victims’ home, appellee handed Purcell the

baseball bat, and Purcell proceeded to enter the home.

         At that time, the wife and two young children, 5 and 2 years of age, were asleep

in the master bedroom. The husband earlier had retired to sleep in another room.

Purcell eventually entered the master bedroom, where he awoke the wife and terrorized

her by threatening to assault her sleeping children. Purcell began to rape the wife as

she pleaded with him not to hurt her children.

         Awakened by the commotion and the sound of appellee’s car outside, the

husband came to his wife’s defense, attacking Purcell as he struggled to pull his pants

up. The husband beat Purcell into submission and dragged him from the bedroom, not

wanting to kill him in front of the children. The victims’ teenage son then assisted his

father, wielding a baseball bat of his own. As the son stood over Purcell, the husband

ran outside in search of other possible intruders, given the sound of appellee’s car and

the fact that the husband thought he had heard more than one strange voice in his

house. The husband then saw appellee, age 17 at the time,2 sitting in a car positioned

at the bottom of the driveway, with its engine running, and headlights turned off.

Appellee fled upon seeing the husband, who then pursued appellee in his own vehicle.

Appellee eluded the husband and then attempted to run him off the road by driving

2
    Appellee turned 18 four months later on August 15, 1998.



                                      [J-48-2013] - 3
head-on at the husband’s car at a high rate of speed. The husband then returned to his

home and the police arrived shortly thereafter and arrested Purcell.

      The following morning, based on information received from Purcell, Derry

Township police officers went to appellee’s home to interview him. According to the trial

testimony of Detective Daniel Kelly, the detective sergeant in charge of the criminal

investigation section of the Derry Township Police Department, appellee told police that

on his way home the night before, he dropped Purcell off in front of the victims’ home,

that appellee never saw Purcell with a bat, and that there was never any bat in

appellee’s car.

      Two days later, on April 21, 1998, detectives, including Detective Kelly again,

returned to appellee’s home. Detective Kelly asked appellee to meet him at the police

station and appellee agreed and followed the detectives in his own vehicle.        Upon

arrival, police escorted him to an interrogation room to wait for his parents, who were

not home when the detectives invited appellee to the station.

      The accounts concerning appellee’s ensuing interactions with, and statements to,

the police are found in both the trial record and the PCRA proceedings.         Appellee

testified at the PCRA hearing that, when he arrived at the police station, he was seated

in a small room with the door closed and was made to empty his pockets. He testified

to a subjective belief that he did not have the ability to leave, that he waited for “a

couple of hours” before his parents arrived, and that he was not questioned by police

prior to his parents’ arrival. Appellee conceded, however, that the room had two doors

and that when he had to use the bathroom he may have opened the door himself and,

upon leaving the bathroom, he walked directly back to the interview room. Appellee

also acknowledged that he was not handcuffed, shackled, or otherwise physically

restrained in any way. Appellee claimed that, before his parents arrived, he asked




                                     [J-48-2013] - 4
police, “Why are you keeping me here?” and police responded: “We’re holding you here

until your parents arrive so we can ask you some questions or question you.” N.T.,

4/25/06, at 63-65, 69.

       In his own PCRA testimony, Detective Kelly stated that the room in which

appellee waited had two doors: a door to the hallway which remained open, and a door

to the lock-up/booking area which remained closed to keep juveniles separate from

adult offenders. Detective Kelly explained that appellee was neither restrained nor kept

under guard, and that he was never told he was not free to leave, albeit police also did

not specifically inform appellee that he had the right to leave.

       After appellee’s parents arrived, Detective Kelly advised them and appellee of

appellee’s Miranda rights. At the PCRA hearing, appellee claimed that: “When he got to

the part about the attorney, we asked, I believe my father or my mother asked, and I

asked, both, for an attorney. . . . We specifically said if we have the right to one, we

would like one.” Appellee said that the police response was “No,” and “you don’t need

an attorney at this point.” Id. at 66-67. Appellee’s father, also testifying during PCRA

proceedings, confirmed: “I indicated we wanted a lawyer.” Id. at 94. Appellee further

testified that he did not sign the Miranda waiver form presented to him because: “Well, I

kind of thought I needed an attorney. They told me I had . . . the right to an attorney

and then they told me I couldn’t have one.” Id. at 67. Detective Kelly’s PCRA testimony

specifically contradicted appellee and his father, as he testified that appellee never

invoked his right to silence or his right to counsel.

       Appellee and his parents then spoke privately before appellee’s father invited the

detectives back into the room and, according to Detective Kelly, the parents indicated

that they understood the rights and were willing to allow police to speak to appellee

without the presence of an attorney.           Appellee’s father admitted to signing a




                                       [J-48-2013] - 5
“Constitutional Rights Notice” consenting to the interview, but stated that at some later

point, he refused to sign the Miranda Waiver form. Appellee’s father was present when

appellee was questioned and, he admitted, “the questions they asked him, I did consent

to.” Id. at 94-97. For his part, Detective Kelly testified that the Constitutional Rights

Notice and the “Waiver of Rights Miranda Warnings” form were actually two parts of the

same document; appellee’s parents signed the document where Detective Kelly

requested they sign; and the failure to have them sign a second time at the bottom of

the same form was merely his error and, in any event, the second part of the form is

redundant. Id. at 101-102.

      Detective Kelly proceeded to take a written statement from appellee, the contents

of which were introduced, through the testimony of the detective, at trial. Appellee

admitted to being at a party with Purcell on the evening of April 17, 1998, and then

driving home with Purcell in the early morning hours of April 18. According to appellee,

Purcell exited appellee’s vehicle with a baseball bat, which was the first time appellee

had seen the bat.    Purcell swung the bat against the windshield of appellee’s car,

cracking the windshield, then swung the bat at appellee and another individual, Wes

Sumner, who had also been in the car. Purcell then walked away carrying the bat, and

appellee entered his own house. Upon seeing police lights ten to fifteen minutes later,

appellee stated, he assumed Purcell had been taken into custody by the police, and the

next thing that he knew the police were at his door at 8:30 or 9 a.m. the next morning.

After reviewing his typewritten statement with his parents, appellee made and initialed

corrections, and signed the statement, with his parents present. Appellee was then

arrested and detained in the Dauphin County Prison.

      On April 24, 1998, Detective Kelly filed a criminal complaint charging appellee

with various criminal offenses, including burglary, rape and various categories of




                                     [J-48-2013] - 6
assault. Appellee’s parents retained trial counsel, who met with appellee and discussed

his April 21st statement. At the PCRA hearing, appellee said he did not think to inform

counsel that he had requested an attorney prior to the interview on the 21st.

      On April 25, 1998, Detective Kelly and another detective transported appellee

from the county prison to the police station and escorted him to the interview room

where trial counsel was waiting. Counsel informed appellee that appellee would be

given a polygraph examination to confirm the veracity of his April 21st statement. At the

PCRA hearing, appellee said counsel spoke to him about a polygraph examination and

told him: “Just tell the truth and you will be fine.” N.T., 7/27/06, at 32; see also N.T.,

4/25/06, at 71. According to trial counsel’s PCRA hearing testimony, appellee had told

counsel he was innocent, did not enter the victims’ house, and was “not involved at all.”

Explaining his reasoning respecting the polygraph, counsel stated:

             He [appellee] was going to take a polygraph test. We
             discussed that at length. I felt that since the District Attorney
             was willing to give him that polygraph test that they were
             attempting to determine that he was - - possibly he was not
             guilty of the burglary or anything that took place and that
             they wanted to do that.

             And I felt, if anything, the polygraph would be very, very
             helpful because I was convinced by what he said to me that
             he was telling the truth and a polygraph would only be good.

             I know the person who was going to take the polygraph test
             down there in Derry Township. He’s been doing it for a long
             time and very fair and very kind, a very good person. I felt
             that he would get along well with [appellee]. I also felt with
             [appellee] telling the truth, I thought this could possibly be an
             outstanding result for us.

N.T., 4/25/06, at 13-14.    Counsel also explained that in his nearly forty years of

experience, both as a prosecutor and a defense attorney, the polygraph process

included three phases: a pre-polygraph interview, the examination itself, and a post-


                                     [J-48-2013] - 7
polygraph interview. He explained that defense counsel is not permitted to be present

in the room for any portion of the polygraph testing process, and indeed, if the attorney

insisted on being present, no polygraph would be administered. Relying on appellee’s

account of his non-involvement, however, counsel “absolutely” believed the polygraph

would be “a very positive thing” for appellee. Id. at 49-50. The polygraph examiner,

Detective Joseph Steenson, confirmed the protocol that polygraph examinations are not

administered with attorneys present. N.T., 7/27/06, at 22.

        Prior to the polygraph, counsel met with a representative of the district attorney’s

office and Detective Steenson to review the questions to be asked.            According to

appellee’s trial testimony, counsel also consulted with appellee concerning his rights,

and was present when appellee executed a pre-polygraph written waiver of those rights.

N.T., 11/19/98, at 599-602. Counsel then waited outside of the examination room while

Detective Steenson proceeded with the polygraph, but counsel departed upon receiving

a call indicating he was needed in his office and counsel did not return.

        During the PCRA proceedings, Detective Steenson testified that he served the

Derry Township Police Department and surrounding areas as a polygraph examiner

from 1994 until his retirement in 2000, and he administered appellee’s polygraph

examination.    Detective Steenson testified that he routinely compiled and utilized a

polygraph packet that included a specific series of forms. He testified to a present

recollection of appellee’s polygraph examination and the forms used, including that he

read the Miranda waiver form to appellee verbatim prior to conducting the polygraph

exam, as part of his routine process. Detective Steenson said he was certain that he

read each of the questions aloud to appellee, and that appellee answered “yes” each

time.   He further testified that had appellee answered “no,” or had he given any




                                      [J-48-2013] - 8
equivocation, he would have stopped the polygraph. Additionally, Detective Steenson

testified that appellee signed the waiver after his affirmative answers.

       As noted by the Superior Court below, at some time between appellee’s trial in

1998 and his PCRA hearing in 2006, the actual waiver form he signed prior to the

polygraph examination was lost. However, the court and the parties apparently failed to

read the trial transcript, where the content of the form was memorialized because

Detective Kelly read it into the record, without objection, as Commonwealth’s Exhibit

Number 24:
              “You have a constitutional right to remain silent, and you do
              not have to talk to me or answer any of my questions. Do
              you understand this?”
                     And there is yes, no, after that question, and yes is
                     circled. And it is initialed E.H. for [appellee].
              “If you talk to me, anything you say can be used against you
              in a court of law. Do you understand this?”
                     Again, yes is circled and E.H. is beside it.
              “You have a right to have an attorney present to speak with
              before and during questioning if you so desire. Do you
              understand this?”
                     Yes is circled and E.H. is beside it.
              “If you cannot afford an attorney, the court will appoint one to
              you at no cost.” In parenthesis it says, (public defender).
              “Do you understand this?”
                     Again, yes is circled and E.H. is beside it.
              “You can decide at any time not to answer any questions or
              not to make any statements. Do you understand this?”
                     Yes is circled and E.H. is underneath of it.
               “Having been read and fully understanding these rights, do
              you consent to talk with me without the presence of an
              attorney, and will you answer my questions?”
                     Yes is circled, E.H. is under yes, and then it is signed
                     by [appellee]. It is dated 4/25/98, Saturday. And



                                      [J-48-2013] - 9
                    under that, it is signed by Detective Steenson, dated
                    4/25/98.

N.T., 11/18/98, at 337-39.3

      Appellee testified at the PCRA hearing that he did not recall whether Detective

Steenson read the constitutional rights waiver form to him.        However, during trial,

appellee authenticated the actual form used, as well as his initials and signature on it.

He also affirmed the contents of the waiver and that he decided to talk with the

detectives based on discussing his rights with trial counsel. N.T., 11/19/98, at 599-602.

Appellee further conceded during his PCRA testimony that he never requested a lawyer

on April 25, 1998; he did not invoke his right to silence; and he was familiar with his

Miranda rights, having already been advised of those rights four days earlier, on April

21st. N.T., 4/25/06, at 88-90. Detective Kelly corroborated these concessions, and

added that appellee never asked to end the questioning. Id. at 106.4



3
  In his PCRA testimony, Detective Steenson read into the record a blank waiver form
that he said was typical of the form read to potential polygraph test-takers. N.T.,
7/27/06, at 11–13. This form is nearly identical to the actual form signed by appellee
and read into the record during appellee’s trial. As noted by the panel majority,
Detective Kelly testified at the PCRA hearing that the waiver form itself was not
introduced at trial because the standard waiver form employed had the word
“polygraph” inserted in several locations. 42 A.3d at 1095-96, citing N.T. 4/25/06, at
119.

4
  Although appellee conceded that he did not request a lawyer on April 25, 1998, this
concession is in contradiction to other portions of his testimony as noted infra.
Elsewhere he insisted that he asked for his lawyer on that date, but only after failing the
polygraph examination and giving his post-polygraph statement to Detective Steenson.
Thus, appellee elsewhere claimed to have asked for his lawyer post-polygraph after
Detective Kelly entered the room where the polygraph was administered. Detective
Kelly maintained, however, that appellee made no such request. The PCRA court
credited Detective Kelly’s version of events, which corroborated appellee’s concessions,
specifically finding: “The Defendant never invoked his right to silence or to counsel
during the interview on April 25, 1998.” Order, 12/27/06, at ¶ 13.



                                     [J-48-2013] - 10
       At the conclusion of the polygraph examination, Detective Steenson informed

appellee that he had failed the exam, and the detective proceeded to take a written

statement from appellee which, Detective Steenson explained, was standard polygraph

procedure in every case. Id. at 23-24. Appellee’s written post-polygraph statement was

read into the record by both Detective Kelly and appellee during trial, and it contradicted

appellee’s written statement of April 21st in several respects. Specifically, appellee

related that: Upon arrival at appellee’s home, Purcell suggested that the group take

appellee’s dog for a walk. Appellee admitted that the baseball bat was in his car.

Appellee followed Purcell and the dog toward the victims’ home, and Sumner retrieved

the bat and joined them. Sumner stopped across the street from the victims’ house,

where Purcell dropped the dog’s leash and appellee picked it up. Appellee handed the

leash to Sumner, who handed him the bat. Appellee then continued to follow Purcell as

Sumner returned to appellee’s house with the dog. At some point, appellee said of the

victims’ son, “I think he’s a prick and I wouldn’t mind beating his ass.” N.T., 11/18/98, at

285.

       According to the statement, Purcell and appellee then proceeded to the victims’

home and walked to the back of the house, where Purcell pointed to the cellar window

and told appellee to enter. Appellee refused, and the duo proceeded to the side of the

house where appellee handed Purcell the bat. Appellee claimed that he did so in fear of

his own bodily injury. Appellee then told Purcell not to do anything stupid, and that he

would return with the car. Appellee returned to his house and asked Sumner to help

him get Purcell into the car, but Sumner refused. Appellee then drove back to the

victims’ home, where he saw in the window what looked like a struggle, and someone

being struck with a bat. Appellee then drove off upon seeing someone exiting the




                                     [J-48-2013] - 11
house. Appellee admitted signing the written post-polygraph statement. Id. at 285-86,

329.

       At the PCRA hearing, appellee testified that the polygraph process, including the

above interview, lasted about an hour, and that thereafter, Detective Steenson told

appellee that they were going to return him to the prison. Detective Steenson then left

the room for approximately fifteen minutes.       N.T., 4/25/06, at 90.     In the interim,

Detective Kelly reviewed the post-polygraph statement, and then entered the interview

room to confront appellee with discrepancies between his first statement to police on

April 18th, his written statement on April 21st, and his April 25th written post-polygraph

statement.     Detective Steenson remained in the room for part of Detective Kelly’s

interview, but left before it ended, an account corroborated by appellee’s trial testimony.

       At the PCRA hearing, appellee testified that when Detective Kelly began

questioning him no additional Miranda warnings were issued. Appellee further claimed

that when he asked where his attorney was, he “was told he was not there.” N.T.,

4/25/06, at 73. Appellee then claimed to have stated, while both Detectives Kelly and

Steenson were present, “Where is [trial counsel], I would like to speak to [trial counsel].”

According to appellee, the ensuing second post-polygraph interview lasted “[p]robably

more than an hour,” and he was given no opportunity to call his lawyer. Id. at 72-73, 89-

90. In his PCRA testimony, Detective Kelly testified that appellee was not specifically

informed post-polygraph that he could consult with trial counsel regarding follow-up

questioning.

       Notably, at trial, both Detective Kelly and appellee testified concerning the

second post-polygraph interview. Detective Kelly explained that, “When I sat down, I

indicated to [appellee] that I was aware he had his Miranda rights and he was aware of

his Miranda rights. He indicated that he was, and I conducted the interview at that




                                     [J-48-2013] - 12
point.” N.T., 11/18/98, at 324. Appellee’s trial account of the follow-up interrogation

confirmed that he was aware of his Miranda rights:

             Q       Did you say- - you have indicated you are an
             intelligent man. You got high SAT scores. You were going
             to drop out, go to college, get your GED. You are obviously
             bright.
                   You have called them Miranda rights. You already
             knew what they were before I showed you. You knew you
             had the right not to answer the questions, didn’t you?
             A      Yes, I did.
             Q     You knew you had the right, at any point, to say, Stop,
             I am done, didn’t you?
             A      Yes, I did.
             Q      So this part about being badgered and being
             threatened and Detective Kelly’s voice being raised, you
             knew you had the right, at any point during that questioning,
             to stop answering questions?
             A      Yes, I did.
             Q      It made no difference what Sergeant Kelly’s
             demeanor was or what you say it was, because you knew
             before you started, and you knew because you probably
             knew beforehand about Miranda, that you had the right not
             to answer the questions that the police officers were asking,
             right?
             A      Yes.

Id. at 608-09.

      The contents of appellee’s second post-polygraph statement were introduced at

trial through the testimony of Detective Kelly.      In addition to other inconsistencies,

appellee admitted to Detective Kelly that he had been drinking at the party as well as

smoking marijuana, and that he was playing “mailbox baseball,” i.e., driving his car

while Purcell swung the bat at random mailboxes. Appellee further admitted that he had

indicated the victims’ home to his passengers as he drove to his own home; that he and



                                   [J-48-2013] - 13
Purcell looked into the basement windows of the victims’ home together to see whether

anyone was present; and that the two discussed appellee entering through a basement

window, to then climb the stairs and admit Purcell through the kitchen door. However,

appellee claimed, he ultimately left to retrieve his car without entering the victims’ home,

telling Purcell, “Don’t do anything stupid until I get back.” Appellee returned with his car

and waited for five to ten minutes. When Detective Kelly asked appellee why he did not

call the police once he realized Purcell was in the victims’ home and saw what looked

like someone being struck with the bat, appellee cried uncontrollably for ten minutes,

saying he did not want to go to jail. Id. at 286-310.

       At the PCRA hearing, appellee testified that he alerted his trial counsel to the

existence of his second written statement, and also told counsel that he had requested

a lawyer on April 21st, and was told that he did not need one. When the April 21st and

25th statements were introduced during trial, appellee further claimed, he said to

counsel: “I thought they couldn’t use that statement,” but counsel responded, each time,

“they can” and “Don’t worry about them.” N.T., 4/25/06, at 80-81.

       Trial counsel did not move to suppress the statements appellee made on April

25, 1998. Counsel testified concerning this decision at the PCRA hearing. Counsel

stated that he could not recall whether Detective Kelly informed him ahead of time that

he would be taking a post-polygraph statement; that in his experience it was not

unusual for someone other than the examiner to conduct post-polygraph questioning;

and that in this case, counsel did not believe anyone other than the polygraph examiner

would question appellee. Id. at 17, 51. Counsel testified that he noticed inconsistencies

between appellee’s April 21st statement and his post-polygraph account, but he did not

believe the inconsistencies would hurt appellee’s case before a jury. Counsel explained

that, in his judgment, reasonable people would understand a scared seventeen-year-old




                                     [J-48-2013] - 14
giving accounts with some inconsistencies because, “now he feels, ‘I want to tell the

truth, I want to tell exactly what happened.’” Id. at 21. Asked whether he considered

filing a motion to suppress the April 25th statement, counsel responded,

              Absolutely not. I thought that second statement was very
              clear in terms of the fact that [appellee] never entered that
              house . . . . There were some inconsistencies, there was
              never any admission or anything like that, that he had done
              anything but try and help. So I don’t think the second
              statement was a negative. I think it was a young man who
              finally fessed up, indicated what happened and I thought the
              statement, in my mind, and I still feel that way, was helpful to
              him.

Id. at 22.

       On November 20, 1998, a jury convicted appellee of burglary, aggravated

assault, three counts of simple assault, multiple counts of criminal conspiracy,

possession of an instrument of crime, possession of a prohibited offensive weapon, and

recklessly endangering another person. On March 15, 1999, the trial court sentenced

appellee to an aggregate term of fifteen and one-half to eighty-four years in prison.

Represented by new counsel, appellee appealed to the Superior Court, challenging the

sufficiency of the evidence, and raising two claims of trial counsel ineffectiveness,

neither of which involved the failure to move to suppress his statements to police. The

Superior Court affirmed the judgment of sentence, and this Court denied allocatur.

Commonwealth v. Hill, 777 A.2d 503 (Pa. Super. 2001), appeal denied, 790 A.2d 1014

(Pa. 2001).

       The ensuing procedural history was protracted and complicated, including a

series of pro se filings, ultimately treated as a PCRA petition; the appointment of

counsel; a no-merit letter and motion to withdraw filed by counsel; a pro se response

and supplemental petition in which appellee, for the first time, identified a claim that his



                                     [J-48-2013] - 15
police statement should have been deemed inadmissible as coerced; an order granting

counsel’s motion to withdraw and dismissing the PCRA petition with the court finding,

inter alia, that appellee’s supplemental claims were time-barred; and a timely PCRA

appeal filed by privately-retained counsel. Counsel on that PCRA appeal pursued two

claims, neither of which involved the admissibility of appellee’s police statements. On

April 7, 2005, a Superior Court panel issued a memorandum and order vacating and

remanding to the PCRA court. Although the panel found no merit in the claims appellee

actually raised on appeal, the panel sua sponte determined that the PCRA court should

have considered appellee’s pro se supplemental PCRA petition because his initial pro

se filing was timely, and the supplemental PCRA petition was filed eleven months

before a final order by the PCRA court. The panel remanded the case and authorized

appellee to pursue claims concerning the circumstances of his statements to police and

expressly held that, in pursuing his PCRA petition, appellee would not be limited to the

claims raised before the Superior Court. The Commonwealth did not seek review of the

decision in this Court.5


5
  The propriety of the Superior Court’s initial remand is not before us; we comment on
the remand only because, in multiple cases post-dating that remand, this Court has
considered and disapproved various procedures adopted by the Superior Court in
addressing PCRA appeals, procedures that may explain the 2005 remand. See, e.g.,
Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009); Commonwealth v. Liston, 977 A.2d
1089 (Pa. 2009); id. at 1095-99 (Castille, C.J., concurring, joined by Saylor and Eakin,
JJ.) (discussing complications caused by Superior Court precedent, i.e.,
Commonwealth v. Miranda, 442 A.2d 1133 (Pa. Super. 1982) (en banc));
Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011) (discussing and disapproving
procedure set forth in Commonwealth v. Battle, 879 A.2d 266 (Pa. Super. 2005)). See
also Commonwealth v. Holmes, 79 A.3d 562, 565-67 (Pa. 2013) (discussing Liston).
Cf. Commonwealth v. Brown, 943 A.2d 264, 267-68 & n.3 (Pa. 2008) (collecting earlier
cases). To the extent the initial PCRA remand may be in tension with later decisional
law from this Court, our recitation of the procedural history in text does nothing to
undermine the controlling effect of our later decisions.



                                    [J-48-2013] - 16
       On June 6, 2005, appellee filed a new PCRA petition raising some sixteen

allegations of trial counsel ineffectiveness; he then supplemented or amended the

petition three different times. The PCRA court held evidentiary hearings on April 25,

2006 and July 27, 2006. In supplemental briefing, appellee narrowed his issues to

three, including, as pertinent here, whether trial counsel was ineffective for failing to: (1)

move to suppress his April 21, 1998 statement to police; and (2) move to suppress his

April 25, 1998 statement.      Supplemental Brief in Support of PCRA Petition, at 2-3

(“Supp. Br.”). Appellee argued that trial counsel was “incompetent” for failing to move to

suppress the “two statements” he provided police on April 21 and April 25, 1998 (in fact,

appellee gave one written statement on April 21st, and two statements on the 25th: a

written statement to Detective Steenson and an oral statement to Detective Kelly).

Appellee’s argument assumed the following as facts: that appellee and his parents

“specifically requested counsel” before the April 21st interview but they were told by

police that they would not need counsel; neither appellee nor his parents ever executed

the Miranda waiver provided by police; Detective Kelly did not advise appellee of his

right to counsel after the polygraph examination on April 25th; the polygraph examiner

was not present during Detective Kelly’s questioning that day; and appellee was not

questioned by Kelly in the same area where the polygraph had taken place. Appellee

then argued that “[t]he pivotal issue” concerning the April 25th statement was “whether

once counsel is waived and questioning begins anew, does that waiver of rights extend

to a separate distinct interrogation of which [appellee’s] counsel is not aware.” Supp.

Br. at 3-4, 6-7.

       The PCRA court dismissed the amended PCRA petition on December 27, 2006.

Respecting the April 21st interview, the court found that: Detective Kelly apprised

appellee of his Miranda rights in the presence of his parents; appellee consulted alone




                                      [J-48-2013] - 17
with his parents; appellee’s father summoned the police back into the room and his

parents indicated their consent to an interview of appellee; appellee orally indicated that

he understood his Miranda rights and was willing to submit to questioning; Detective

Kelly inadvertently failed to obtain a signed waiver; neither appellee nor his parents

invoked the right to silence or to the presence of an attorney during the April 21st

interview; and, until his subsequent arrest, appellee was not restrained in any way.

Order, 12/27/06, at ¶¶ 1-8.

       Respecting the April 25th interviews, the PCRA court found that: appellee

consulted in person with his counsel, an experienced practitioner, prior to the polygraph

examination; after that consultation, appellee agreed to submit to questioning by police

as part of the polygraph process; Detective Steenson advised appellee of his Miranda

rights prior to the exam; appellee executed a written waiver of his Miranda rights,

although that written waiver could not presently be located; after the examination,

Detective Steenson informed appellee that he had failed; thereafter, Detectives

Steenson and Kelly interviewed appellee and he made additional incriminating

statements; those statements were part of the interview to which appellee submitted as

part of the Miranda waiver and were part of the polygraph process; appellee never

invoked his right to silence or to counsel during the interview; and police made no

threats or promises before or during the interview. Id. at ¶¶ 9-17. The court also

credited trial counsel’s account that he anticipated that the polygraph process would

include a pre-test interview and a post-test interview, as was customary; counsel did not

insist on being present since he knew that if he had, the polygraph would not be

administered; and counsel believed that “taking the polygraph was in his client’s best

interests based on [appellee’s] assertion of innocence, and the facts of the case as

outlined by [appellee] to . . . counsel.” Id. at ¶¶ 15-16.




                                      [J-48-2013] - 18
       Based upon these factual findings, the court concluded that appellee was

properly informed of his rights by police and knowingly, intelligently and voluntarily

consented to making the statements he gave police on both April 21st and April 25th.

       PCRA counsel forwarded a notice of appeal to the PCRA judge, but evidently

failed to actually file the notice, leading to confusion and further delay. Ultimately, the

appeal was not processed for three years; eventually, on November 15, 2010, appellee

filed a pro se petition seeking reinstatement of his PCRA appeal rights nunc pro tunc.

On November 22, 2010, the PCRA court appointed current counsel, and on March 23,

2011, reinstated appellee’s PCRA appeal rights.6          The court later noted that its

December 27, 2006 order sufficiently set forth the basis for its decision.

       Before the Superior Court, appellee pursued both ineffectiveness claims, arguing

that (1) the April 21st statement was obtained in violation of Miranda, and (2) the April

25th post-polygraph statement was obtained in violation of his right to counsel,

notwithstanding his waiver of rights for purposes of the polygraph examination.7 A

divided Superior Court panel issued an opinion and order reversing the PCRA court’s

dismissal and remanding the matter for further proceedings – a new trial – holding that

trial counsel was ineffective in failing to move to suppress appellee’s post-polygraph




6
  The Commonwealth did not appeal from, and has not otherwise contested, the
propriety of this reinstatement.

7
  The Superior Court’s opinion indicates that appellee’s second issue added the notion
that appellee was deprived of effective assistance of counsel when his trial attorney
abandoned him at a critical stage in the proceedings. That distinct issue was not
addressed by the Superior Court on the merits, and it is not before this Court.




                                     [J-48-2013] - 19
statement to Detective Kelly. The panel declined to address appellee’s claim respecting

his April 21st statement.8

       The panel majority began by noting the judicially-settled performance and

prejudice test for assessing ineffectiveness claims, albeit the panel did not acknowledge

either the constitutional presumption of effectiveness, or the requirement of

contemporaneity, i.e., that counsel’s actions cannot be viewed through hindsight but

must be examined according to the law and circumstances at the time counsel acted.9

8
  As recited in the panel majority opinion below, appellee’s statement of the issue
referred to a post-polygraph “statement,” but in the very next paragraph of the opinion,
the majority characterized the issue as a challenge to both of appellee’s post-polygraph
“statements.” 42 A.3d at 1089. In any event, the panel’s analysis was limited to the
statement made to Detective Kelly, and its holding was tied to the circumstances
surrounding that statement (including that he was not the officer who had administered
the polygraph). See discussion infra. It is not clear whether the panel deemed the
challenge to the statement to Detective Steenson to be waived, or if the panel
determined that it did not need to reach the issue.

9
 The seminal decision concerning ineffective assistance of counsel is Strickland v.
Washington, 466 U.S. 668 (1984), which stressed:

                   Judicial scrutiny of counsel’s performance must be
            highly deferential. It is all too tempting for a defendant to
            second-guess counsel’s assistance after conviction or
            adverse sentence, and it is all too easy for a court,
            examining counsel’s defense after it has proved
            unsuccessful, to conclude that a particular act or omission of
            counsel was unreasonable. . . . A fair assessment of
            attorney performance requires that every effort be made to
            eliminate the distorting effects of hindsight, to reconstruct the
            circumstances of counsel’s challenged conduct, and to
            evaluate the conduct from counsel’s perspective at the time.
            Because of the difficulties inherent in making the evaluation,
            a court must indulge a strong presumption that counsel’s
            conduct falls within the wide range of reasonable
            professional assistance; that is, the defendant must
            overcome the presumption that, under the circumstances,
(Qcontinued)

                                     [J-48-2013] - 20
The court then noted that appellee’s Sixth Amendment right to counsel had attached

before the polygraph examination, and appellee’s waiver of his rights clearly

encompassed the right to counsel “for purposes of the polygraph.” In the court’s view,

then, the underlying issue turned on the “scope” of that waiver, that is, was the waiver

limited to the polygraph examination, or did it also encompass the post-polygraph

interview.

       Significantly, the panel majority recognized that the U.S. Supreme Court had

addressed the general issue in Wyrick v. Fields, 459 U.S. 42 (1982) (per curiam). In

Wyrick, the panel noted, the High Court had rejected a bright-line rule fashioned by the

Eighth Circuit that would have required re-advising suspects of their Miranda rights

before a post-polygraph interview commences, in favor of a rule, deriving from existing

High Court authority, requiring examination of the totality of the circumstances. The

panel continued by noting that the circumstances in Wyrick included that the defendant,

Fields, had requested the polygraph examination; the post-polygraph examination was

conducted by the polygraph examiner; and Fields’ written waiver included broader

language than a standard Miranda warning and waiver, in that it advised him that “If you

are now going to discuss the offense . . . without a lawyer present, you have a right to

stop answering questions at any time or speak to a lawyer before answering further,

even if you sign a waiver.” 42 A.3d at 1092-93, citing Wyrick, 459 U.S. at 43-47.

Further explaining its understanding of Wyrick, the panel then cited this portion of




(continuedQ)
            the challenged action “might be considered sound trial
            strategy.”

466 U.S. at 689 (citations omitted).




                                       [J-48-2013] - 21
Wyrick’s reasoning in rejecting the notion that police were obliged to re-warn Fields of

the rights he had just been apprised of:

              The Court of Appeals stated that there was no indication that
              Fields or his lawyer anticipated that Fields would be asked
              questions after the examination. But it would have been
              unreasonable for Fields and his attorneys to assume that
              Fields would not be informed of the polygraph readings and
              asked to explain any unfavorable result. Moreover, Fields
              had been informed that he could stop the questioning at any
              time, and could request at any time that his lawyer join him.
              Merely disconnecting the polygraph equipment could not
              remove this knowledge from Fields’ mind.
                     ....

              [The Eighth Circuit’s rule certainly finds no support in
              Edwards [v. Arizona, 451 U.S. 477 (1981)], which
              emphasizes that the totality of the circumstances, including
              the fact that the suspect initiated the questioning, is
              controlling. Nor is the rule logical;] the questions put to
              Fields after the examination would not have caused him to
              forget the rights of which he had been advised and which he
              had understood moments before. The rule is simply an
              unjustifiable restriction on reasonable police questioning.
42 A.3d at 1093, quoting Wyrick, 459 U.S. at 47-49.10

       The panel majority then reviewed decisions from the Ninth, Third, and First

Circuits involving application of Wyrick, while recognizing that, “[i]t does not appear that

any Pennsylvania appellate court has addressed the issue of waiver of the Sixth

Amendment right to counsel in connection with post-polygraph interrogations.” Id. at

1094-95. Deeming the First Circuit’s approach in U.S. v. Leon-Delfis, 203 F.3d 103 (1st



10
  The panel below did not quote the bracketed portion of the second paragraph we
have included in the text. We have inserted the bracketed material to provide the full
context, and content, of the controlling rule set forth by the High Court.




                                     [J-48-2013] - 22
Cir. 2000) – decided after the trial in this case – to be persuasive, the panel stated that it

would “apply the factors set forth” in Leon-Delfis to determine whether appellee had in

fact waived his right to counsel for purposes of a post-polygraph interview. The court

identified the four Leon-Delfis factors as: “‘who requested the polygraph examination;

who initiated the post-polygraph questioning; whether the signed waiver clearly

specifies that it applies to post-polygraph questioning or only to the polygraph test; and

whether the defendant has consulted with counsel.’” Hill, 42 A.3d at 1094, quoting

Leon-Delfis, 203 F.3d at 111. The panel noted, however, that because of subsequent

U.S. Supreme Court precedent, “the significance of the first two factors listed in Leon-

Delfis, has essentially been negated.” Id. at 1095 n.9 (citing Montejo v. Louisiana, 556

U.S. 778 (2009)). The panel then concluded, apparently as a matter of law based on its

application of the Leon-Delfis factors, that appellee did not waive his right to counsel for

purposes of the post-polygraph interview. 42 A.3d at 1095-97.

       More specifically, the panel majority emphasized that appellee’s written Miranda

waiver had been lost by the time of the PCRA hearing, and thus there was no

“conclusive answer” of whether that document addressed the post-polygraph period.

However, the court added, neither Detective Kelly nor Detective Steenson had

affirmatively testified at the PCRA hearing that appellee was “specifically advised that

the requested waiver also applied to post-polygraph examinations.” Id. at 1095. The

court next stressed that the post-polygraph interview by Detective Kelly was performed

by a different law enforcement officer than the officer who conducted the polygraph.

Finally, adverting to the final Leon-Delfis factor, the court noted that although appellee

had consulted with counsel prior to the polygraph, there was no additional consultation

prior to the post-polygraph interview. The panel also stressed that, although counsel




                                      [J-48-2013] - 23
understood that a post-polygraph interview could be part of the process, counsel did not

testify at the PCRA hearing that he conveyed this fact to appellee. Id. at 1096.

      The panel majority next dismissed as “error” the PCRA court’s finding that

Detective Kelly’s post-polygraph interview of appellee was “part of the polygraph

process.” The panel stated that counsel “established the scope of [appellee’s] waiver”

by participating in drafting the questions to be asked during the polygraph examination.

The panel further declared that: “In advising [appellee] to go downstairs with Detective

Steenson to take the polygraph examination and to tell the truth while doing so,

[counsel’s] clear message to [appellee] was that it was acceptable to answer the

polygraph questions without his lawyer present – in part because his lawyer had

approved the questions to be asked.” Id. at 1096-97.

      The panel majority then concluded that appellee did not waive counsel for

purposes of the post-polygraph interview, finding that the absence of a specific

explanation that his waiver embraced post-polygraph questioning rendered the waiver

invalid, apparently as a matter of law. The panel opined that the scope of a Miranda

waiver is based upon what the defendant understands at the time of his waiver.

According to the court, a valid Miranda waiver for a post-polygraph interview requires

proof that the defendant “was aware that he was waiving such a right and that he

understood the risks associated with its forfeiture.” In the panel’s view, the record

“contain[ed] no evidence” that appellee knew that post-polygraph questioning would

occur, or that his earlier waiver was “likewise” a waiver of counsel for post-polygraph

questioning. The panel then concluded its analysis of the underlying issue by declaring

that “the Commonwealth failed to satisfy its burden of proof that [appellee] knowingly

and intelligently waived his Sixth Amendment right to counsel.” Id. at 1097




                                    [J-48-2013] - 24
       The panel majority then turned to and disposed of the actual collateral claim

before it – counsel’s alleged ineffectiveness – in a single paragraph. Because the

waiver of counsel was invalid, the panel stated, appellee’s foregone suppression claim

concerning the statement to Detective Kelly had merit. The panel did not address trial

counsel’s proffered reasons for not moving to suppress. Instead, the court’s remaining

analysis consisted of a declaration that counsel acted unreasonably, followed by a non-

record-based assessment of prejudice:

              We likewise conclude that [trial counsel] had no reasonable
              basis for his actions, and that his failure to suppress [sic]
              [appellee]’s statement was highly prejudicial. In this regard,
              the PCRA court found [appellee]’s statements during the
              post-polygraph interrogation, when introduced by Lieutenant
              Kelly at trial, were incriminating. Trial Court Opinion, 1/2/07,
              at 4 (finding number 12). Echoing this position, at the
              conclusion of the PCRA evidentiary hearings, counsel for the
              Commonwealth conceded that the scope of [appellee]’s
              waiver of his constitutional right to counsel was the only
              genuine issue for the PCRA court’s resolution, since without
              [appellee]’s post-polygraph incriminating statement to
              Lieutenant Kelly “we are – we are basically out of court.
              [Appellee] would be entitled to a new trial which perhaps we
              couldn’t even give him.”

Id. at 1097 (PCRA transcript citation omitted).

       Although the panel majority had earlier recognized that appellee made two post-

polygraph statements – a written statement to Detective Steenson and an oral

statement to Detective Kelly – the panel did not separately analyze the statement to

Detective Steenson, and its holding was tied exclusively to the circumstances

surrounding the statement to Detective Kelly (including that he was not the officer who

had administered the polygraph).

       In a dissenting opinion, Judge Jack Panella disagreed with the panel majority’s

conclusion that the post-polygraph interview constituted a new interrogation that


                                     [J-48-2013] - 25
exceeded the scope of appellee’s explicit waiver of rights. In the dissent’s view (which

was consistent with the understanding of trial counsel), the post-polygraph interview

was part and parcel of the polygraph process, and appellee had knowingly and

voluntarily waived his right to counsel for strategic reasons. The dissent adverted to

Wyrick, noting that the High Court had held that a new set of Miranda warnings was not

required before a post-polygraph interview, as well as the Wyrick Court’s emphasis that

“‘it would have been unreasonable for Fields and his attorneys to assume that Fields

would not be informed of the polygraph readings and asked to explain any unfavorable

result.’” 42 A.3d at 1098 (Panella, J., dissenting) (emphasis supplied in dissenting

opinion), quoting Wyrick, 459 U.S. at 47. The dissent also stressed that appellee had

made no request for counsel after the polygraph examination and after being told he

had failed the test. In the dissent’s view, the case involved “an undisputed waiver

combined with actions of trial counsel that were knowledgeable, voluntary, and

performed for tactical reasons.” Id. at 1100. Hence, the dissent would have affirmed

the denial of relief on this claim. The panel majority did not respond to the dissent’s

focus upon trial counsel’s proffered explanation for his conduct.11




11
  The parties and the courts below appear not to have recognized the import of the fact
that appellee was represented by new counsel on direct appeal and raised claims of
ineffective assistance of counsel on that appeal, as was his right at that time. See
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). Thus, the proper cognizable claim
under the PCRA was a “layered” claim of ineffectiveness, focusing on appellate
counsel’s failure to allege trial counsel’s ineffectiveness for failing to move to suppress
appellee’s statement. See, e.g., Commonwealth v. McGill, 832 A.2d 1014 (Pa. 2003).
The Commonwealth has not pressed this point, it was not the PCRA court’s ground for
decision (had it been, appellee could have sought leave to amend his pleadings to
address appellate counsel’s performance), and in any event, the question of layering is
not encompassed in our grant of review.



                                     [J-48-2013] - 26
                                            II.

      The Commonwealth presents the following issue, which it identifies as one of first

impression in Pennsylvania:

             Is a second set of Miranda warnings and a second waiver
             required before questioning a criminal defendant
             immediately after he failed a polygraph examination and
             waived his right to remain silent after being read Miranda
             warnings right before the polygraph examination?

We note at the outset that the characterization of the issue as one of first impression is

overstated, since the claim arises under the PCRA and sounds in counsel

ineffectiveness under Strickland v. Washington, 466 U.S. 668 (1984). Thus, we do not

consider the unadorned question of where the U.S. Supreme Court might progress in

terms of Miranda waivers and post-polygraph interviews, for example, or trends and

decisions in this area post-dating appellee’s 1998 trial. Rather, the contemporaneous

assessment requirement of Strickland directs courts to focus on counsel’s conduct, as

measured by the governing law in existence in 1998. Commonwealth v. Colavita, 993

A.2d 874, 895 (Pa. 2010) (“The ultimate focus of an ineffectiveness inquiry is always

upon counsel, and not upon an alleged deficiency in the abstract.”). With this caveat,

we proceed to the parties’ arguments.

      The Commonwealth argues that appellee’s waiver of his Miranda rights allowed

police to conduct the polygraph examination appellee had requested through counsel,

including the questioning that immediately followed his failure of the examination. The

Commonwealth posits that the post-polygraph questioning was part of the same

interview as the polygraph examination to which appellee expressly assented, and

absent some substantial change in circumstances not present here, the police could

lawfully continue to question appellee without securing a second Miranda waiver –




                                    [J-48-2013] - 27
particularly because appellee did not invoke his right to silence or his right to counsel,

despite his awareness of those rights.

        The Commonwealth further claims that the U.S. Supreme Court analyzed “the

precise issue” in Wyrick v. Fields because in that case, as here, the dispute centered on

the admissibility of a statement given after a government polygraph examination

requested by the defendant’s attorney. The Commonwealth stresses that the Wyrick

Court held that a defense request for a polygraph examination amounts to the

defendant himself initiating interrogation: “‘That is, [the defendant] waived not only his

right to be free of contact with the authorities in the absence of an attorney, but also his

right to be free of interrogation about the crime for which he was suspected.’”

Commonwealth’s Brief at 14, quoting Wyrick, 459 U.S. at 47. Further quoting from

Wyrick, the Commonwealth states that, in circumstances like these, the defendant has

“‘validly waived his right to have counsel present at post-test questioning, unless the

circumstances changed so seriously that his answers no longer were voluntary, or

unless he no longer was making a knowing and intelligent relinquishment or

abandonment of his rights.’” Id., quoting Wyrick, 459 U.S. at 47 (internal quotation

marks omitted). The Commonwealth argues that because appellee was informed that

he could stop questioning at any time, and could request that his lawyer join him,

“‘[m]erely disconnecting the polygraph equipment could not remove this knowledge from

[appellee’s] mind.’” Id. at 15, quoting Wyrick at 47-48.         Thus, according to the

Commonwealth, because there was no significant intervening change in appellee’s

circumstances other than police disconnecting the polygraph equipment, this Court

should follow Wyrick and not adopt the analytical approach the First Circuit devised in

2000.




                                     [J-48-2013] - 28
         The Commonwealth also stresses that appellee’s suppression claim arises in the

context of ineffective assistance of counsel, and yet the Superior Court majority focused

on its view of the stand-alone merit of the suppression claim “de novo” without holding

appellee to his burden to prove counsel ineffective. The Commonwealth says that the

Superior Court overlooked that it was supposed to “‘begin with the presumption that

counsel rendered effective assistance,’” and indeed, failed to focus on counsel at all.

Commonwealth’s Brief at 18, quoting Commonwealth v. Dennis, 17 A.3d 297, 301 (Pa.

2011).     The Commonwealth notes that trial counsel was an experienced criminal

defense attorney; that he expected that post-polygraph questioning would occur; that

counsel reasonably relied upon his client’s insistence that he was not involved in the

home invasion in recommending that he agree to the polygraph interview; and that

appellee’s later inconsistent statements were a product of his misrepresentations to his

attorney, and not police misconduct. Id. at 16.

         The Commonwealth further notes that the panel majority failed to appreciate that

the First Circuit decision in Leon-Delfis that it adopted was not issued until February 16,

2000, eleven months after appellee was sentenced. The panel thereby engaged in the

sort of hindsight focus not permitted by the contemporaneous assessment required to

properly analyze a claim of ineffective assistance. “An attorney cannot be deemed

ineffective for failing to anticipate a change or development in the law.” Id. at 19,

quoting Commonwealth v. Carson, 913 A.2d 220, 274 (Pa. 2006). Because Wyrick was

the definitive law at the time of trial, the Commonwealth submits, counsel acted

reasonably in not seeking suppression of appellee’s April 25th statement to Detective

Kelly, particularly given appellee’s express waiver of his rights immediately prior to the

police questioning represented by the polygraph.          To make matters worse, the

Commonwealth continues, the court applied all four prongs of the Leon-Delfis test




                                     [J-48-2013] - 29
despite recognizing that two of the prongs were called into question by later decisional

law from the U.S. Supreme Court; and the court construed the absence of the waiver

form as a factor weighing against the Commonwealth as a failure of proof, even though

the burden was on appellee to prove counsel ineffective.

       Rather than applying the Leon-Delfis factors, the Commonwealth submits that

the “more significant question” is whether there was a substantial break in the

questioning between administration of the polygraph examination and the subsequent

questioning. This is so, the Commonwealth argues, because a repetition of Miranda

warnings is necessary only where initial warnings “have become stale or remote,” with

the “essential question” being whether there was a continuity of interrogation. Id. at 17,

citing, inter alia, Commonwealth v. Scott, 752 A.2d 871, 875 (Pa. 2000). Here, the

Commonwealth submits, the PCRA court found that the pre- and post-polygraph

interviews were part of the polygraph process; there plainly was a continuity of

questioning; and appellee never invoked his right to counsel or his right to silence.12

       In arguing for affirmance, appellee stresses the importance of the right to counsel

once adversarial proceedings have begun and the requirement of an express waiver

before questioning can be conducted without counsel. Appellee recognizes, however,

that he has the burden to rebut the presumption of counsel effectiveness and to prove

that counsel was constitutionally deficient in failing to move to suppress.       Appellee

submits that he has met this burden.

12
   The Pennsylvania District Attorneys Association has filed an Amicus Curiae brief in
support of the Commonwealth.           The Association echoes the Commonwealth’s
argument, stressing that Wyrick found, under similar circumstances, that a pre-
polygraph Miranda waiver extended to the post-polygraph interview, this Court has
never required that Miranda warnings be reissued every time questioning is renewed as
long as there is a clear continuity of interrogation, and there was a clear continuity of
interrogation in this case.




                                     [J-48-2013] - 30
      Arguing the three-prong rubric for assessing Strickland’s Sixth Amendment

performance and prejudice paradigm, as first announced by this Court in

Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987),13 appellee first argues that a

meritorious motion to suppress his April 25th statement was available because his

subjective understanding was that his waiver of counsel was limited to the polygraph

examination. Appellee claims that his attorney limited the scope of his waiver by jointly

drafting the polygraph questions. Appellee notes that Detective Kelly’s post-polygraph

interview did not proceed along the lines of the questioning agreed upon, but rather was

“an adversarial exchange aimed at gathering evidence” for a formal prosecution.

Appellee maintains that a valid waiver must reflect a full awareness of the nature of the

right being abandoned and the consequences of the waiver. Appellee then disputes the

Commonwealth’s assertion that the Wyrick decision is controlling, noting that the rule

emerging from that case requires consideration of the totality of the circumstances.14

      Appellee stresses that his attorney’s recognition that a post-polygraph interview

could occur does not define appellee’s waiver and understanding, and that the record

does not support that he waived his rights beyond the duration of the polygraph

examination itself. Appellee argues that Wyrick is distinguishable because there was a

break between his post-polygraph written statement to Detective Steenson, and his

post-polygraph interview with Detective Kelly. Although appellee does not address the

significance of his PCRA testimony that this break was only fifteen minutes in

13
  Under Pierce, the performance aspect of Strickland is broken into two parts, the first
examining whether the claim lodged against counsel possesses “arguable merit,” and
the second examining whether counsel’s actions were supported by a “reasonable
basis.” See, e.g., Commonwealth v. Robinson, 82 A.3d 998, 1005 (Pa. 2013).

14
  Appellee refers to Wyrick as a “plurality opinion.” In fact, Wyrick was a precedential
opinion, albeit an unsigned one, supported by eight of the nine members of the Court.




                                    [J-48-2013] - 31
approximate duration, N.T., 4/25/06, at 90, he does contend that during this time he was

not re-Mirandized and no spontaneous effort was made by police to contact his counsel.

Citing Leon-Delfis, appellee argues that police initiated the post-polygraph examination

without first securing an additional, explicit waiver of rights. Appellee also argues that

the failure of the Commonwealth to produce a signed waiver form that raised the

possibility of post-polygraph questioning “strongly supports” his claim. Appellee alleges

that the police took advantage of his youth and naiveté by questioning him, and took

advantage of his counsel’s distinct ineffectiveness in “abandoning” him.         Appellee

concludes that Detective Kelly’s post-polygraph interrogation violated his right to

counsel, providing a basis for forwarding a meritorious suppression claim.

      Appellee then argues that there was no reasonable basis to excuse his counsel’s

failure to move to suppress. First, appellee states that counsel’s lapse was a product of

an erroneous failure to perceive the merit in the motion. Appellee notes that counsel

had nothing to lose by moving for suppression, and states that counsel cannot have had

a reasonable basis for his action. In appellee’s view, “the Latin phrase res ipsa loquitur

is fitting” to describe why counsel “could not possibly have had” a reasonable basis for

his conduct.

      Turning to the Strickland requirement of actual prejudice, appellee contends that

his post-polygraph statement to Detective Kelly effectively conceded his involvement in

the crime and allowed the jury to see that he had contradicted himself numerous times.

Appellee, like the Superior Court panel majority, also cites to the Commonwealth’s

statement at the PCRA hearing which, he implies, conceded Strickland prejudice.

                                           III.

      The Superior Court’s task in reviewing the denial of PCRA relief was to

determine whether the PCRA court’s factual findings were supported by the record, and




                                    [J-48-2013] - 32
whether the court’s legal decision was free from error. Commonwealth v. Lesko, 15

A.3d 345 (Pa. 2011). In overturning the denial of PCRA relief here, the panel majority

essentially held, as a matter of law, that appellee’s explicit waiver of counsel was limited

to the questioning by the polygraph examiner, and that, for the subsequent questioning

of appellee by Detective Kelly to be valid, either the waiver had to explicitly disclose the

prospect of that questioning, or the detective had to secure a second express waiver of

counsel. The panel majority further held, in summary fashion, that trial counsel could

not possibly have had a reasonable basis for failing to file a motion to suppress –

indeed, the court did not even discuss counsel’s PCRA testimony – and that appellee

was prejudiced. Our review of the Superior Court’s legal conclusions is plenary and de

novo. See Commonwealth v. Mallory, 941 A.2d 686 (Pa. 2008), cert. denied, 555 U.S.

884 (2008).

       In our description of the procedural history and the parties’ arguments, we have

noted certain legal precepts governing review of Strickland claims. To properly frame

our discussion below, an emphasis on certain principles is appropriate. First, as the

U.S. Supreme Court has recently emphasized, Strickland establishes a “strong

presumption” that counsel was effective: “We have said that counsel should be ‘strongly

presumed to have rendered adequate assistance and made all significant decisions in

the exercise of reasonable professional judgment,’ Strickland, 466 U.S. at 690, and that

the burden to ‘show that counsel’s performance was deficient’ rests squarely on the

defendant, id., at 687.” Burt v. Titlow, ___ U.S. ___ , ___ 134 S.Ct. 10, 17 (2013).

Accord Cullen v. Pinholster, ___ U.S. ___, ___, 131 S.Ct. 1388, 1404, 1407 (2011). “It

should go without saying that the mere absence of evidence cannot overcome”

Strickland’s strong presumption. Burt, supra. The reasonableness of counsel’s conduct,

moreover, is objectively measured, Cullen, 131 S.Ct. at 1407, citing Harrington v.




                                     [J-48-2013] - 33
Richter, 562 U.S. 86, ___ , 131 S.Ct. 770, 791 (2011), and, the High Court has

repeatedly stressed, “‘[s]urmounting Strickland’s high bar is never an easy task.’”

Cullen, 131 S.Ct. at 1408, quoting Richter, 562 U.S. at ___, 131 S.Ct. at 788 (further

citation omitted).

          Second, review of counsel’s conduct cannot indulge “the distorting effects of

hindsight,” but instead, counsel’s performance must be judged in light of the

circumstances as they would have appeared to counsel at the time. Strickland, 466

U.S. at 689. See also Rompilla v. Beard, 545 U.S. 374, 381 (2005) (citation omitted);

Commonwealth v. Spotz, 896 A.2d 1191, 1238 (Pa. 2006) (“it is well established that

the effectiveness of counsel is examined under the standards existing at the time of

performance.”); Commonwealth v. Gribble, 863 A.2d 455, 464 (Pa. 2004) (“Counsel

cannot be deemed ineffective for failing to predict developments or changes in the

law.”).

          The Superior Court’s review in this case was deficient in several respects. The

first deficiency consisted of an apparent failure to consider the trial record. This lapse is

not entirely the fault of the panel, since the parties and the PCRA court likewise focused

on the PCRA hearing record.        Still, it is a curious collective lapse since appellee’s

statements obviously were introduced at trial, and it would be strange if there had been

no testimony concerning the circumstances surrounding the statements.             Moreover,

responsible appellate briefing and judging should include a mastery of all potentially

relevant parts of a record. In any event, the fact remains that the record contains the

trial transcript, and that transcript contains sworn testimony directly relevant to the claim

presented on collateral attack, including: (1) the precise language of appellee’s pre-

polygraph waiver; (2) testimony from Detective Kelly that, before conducting the post-

polygraph interview, he told appellee that he was aware that appellee had been




                                      [J-48-2013] - 34
apprised of his Miranda rights, and appellee indicated he indeed was aware of those

rights; and (3) appellee’s sworn testimony that, at the time Detective Kelly interviewed

him, he knew he had the right to stop the questioning at any time. Of course, appellee,

who bore the burden in forwarding his claim, could have disputed the trial account,

including his own testimony. But, the trial testimony should have been accounted for in

rendering a judgment here; instead, it appears, the testimony was not considered by

either court below.

      The second lapse concerns the panel majority’s failure to acknowledge the

strong presumption of effectiveness and, correspondingly, to hold appellee to his

burden of proving counsel ineffective. This lapse revealed itself in several respects,

including: the failure to consider trial counsel’s testimony and thus to assess the claim

from counsel’s perspective; and drawing an inference against the Commonwealth

based upon (an erroneously assumed) absence of evidence in the record concerning

the precise contours of appellee’s waiver of rights on April 25, 1998, and culminating in

the court’s erroneous legal conclusion that the Commonwealth “failed to satisfy its

burden of proof” respecting appellee’s waiver.

      Third, the panel majority failed to assess counsel’s performance based upon the

governing law in existence when counsel was alleged to have acted ineffectively – i.e.,

in 1998. The panel conducted a survey of how other courts – in particular, federal

courts of appeals – had approached the issue under what the panel correctly

recognized was the leading case, Wyrick v. Fields, and ultimately adopted a four-factor

test set forth by the First Circuit in its 2000 decision in U.S. v. Leon-Delfis

(notwithstanding that two of those factors were of questionable legitimacy). Of course,

such surveys of the legal landscape can be an appropriate way to assess what

arguments were reasonably available to diligent defense counsel. But, the panel went




                                    [J-48-2013] - 35
astray to the extent it measured counsel’s conduct according to a standard from a case

that did not exist at the time counsel acted.15 Whatever virtue the First Circuit case

might have as an abstract matter, it was an inappropriate measure of counsel’s conduct

in 1998. We specifically disapprove of the panel’s adoption of the Leon-Delfis test –

while offering no view on the best way to approach Wyrick waivers in a direct review

context – because this collateral review matter is an inappropriate vehicle to make that

determination. The focus is on counsel, in 1998.

       In addition to, or perhaps deriving from, these primary difficulties, it appears that

the panel majority gave insufficient heed to the High Court’s teaching in Wyrick. The

Commonwealth highlights the Wyrick Court’s emphasis on the significance of a

defense-initiated request for a polygraph examination, which waives “not only his right

to be free of contact with the authorities in the absence of an attorney, but also his right

to be free of interrogation about the crime for which he was suspected,” as well as the

Court’s teaching that the waiver remains valid “unless the circumstances changed so

seriously that his answers no longer were voluntary, or unless he no longer was making

a knowing and intelligent relinquishment or abandonment of his rights.” Wyrick, 459

U.S. at 47.16 The Wyrick Court also stressed: (1) that it would be unreasonable for a

15
   The panel majority noted that it was “persuaded” to adopt the reasoning in Leon-
Delfis “particularly” because the First Circuit had surveyed cases in other Circuits
construing Wyrick v. Fields. 42 A.3d at 1095 n.8. To be sure, certain of the decisions
surveyed in Leon-Delfis were in existence in 1998. See, e.g., U.S. v. Johnson, 816 F.2d
918 (3d Cir. 1987); U.S. v. Gillyard, 726 F.2d 1426 (9th Cir. 1984). However, no
suggestion was made in the panel majority opinion below, or in the presentations here,
that the Leon-Delfis test itself represented the prevailing approach to cases implicating
Wyrick v. Fields in the federal or Pennsylvania legal community in 1998.

16
   The panel majority below noted that it was unclear whether the defense had
requested the polygraph and the PCRA court had made no specific finding on the point.
42 A.3d at 1095. But, as the Commonwealth noted in its brief, the burden was on
appellee to prove his claim, and the absence of proof does not suffice.
(Qcontinued)

                                     [J-48-2013] - 36
defendant and his attorney to assume that there would be no questioning after a

polygraph examination; (2) the significance of a defendant acknowledging that he

understood his rights, which include the right to end police questioning and to request

the presence of a lawyer (“Merely disconnecting the polygraph equipment could not

remove this knowledge,” id. at 47); and (3) that it is illogical to assume that questioning

after a polygraph examination will cause a defendant to forget rights he acknowledged

and understood a short time before.

      Thus, there is force in the Commonwealth’s argument that the panel should have

focused on factors such as the continuity of the interrogation on April 25th, a

circumstance dispelling concerns of the staleness of the warnings, and the fact that,

despite being expressly made aware of his rights (including the “right to have an

attorney present to speak with before and during questioning if you so desire” (supra, at

9)), and acknowledging that he understood those rights, appellee never invoked them.

      The panel’s assessment of Strickland prejudice also was problematic. The court

had before it a PCRA court judgment denying relief on the claim without reaching

prejudice, which was an acceptable manner of resolving a Strickland claim. Lesko, 15

A.3d 345, 374 (Pa. 2011) (“Both the U.S. Supreme Court and this Court have made

clear that a court is not required to analyze the elements of an ineffectiveness claim in

any particular order of priority; instead, if a claim fails under any necessary element of

the Strickland test, the court may proceed to that element first.”) (citing Strickland and

(continuedQ)
Commonwealth’s Brief at 18-19. Moreover, from trial counsel’s PCRA testimony, it is
evident that counsel thought the Commonwealth’s willingness to administer the
polygraph was a positive development, and he encouraged appellee to submit to the
examination. Regardless of which side first mentioned the test, the record proves
appellee’s express agreement to a procedure that necessarily waived both his right to
silence and to counsel.




                                      [J-48-2013] - 37
Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998)). To overturn that judgment,

however, the panel had to make a finding of prejudice, since the Commonwealth had

prevailed below. Under Strickland, the defendant has to show a reasonable probability

that, but for counsel’s deficient performance, the outcome of the proceeding would have

been different. See, e.g., Strickland, 466 U.S. at 694; Commonwealth v. Sepulveda, 55

A.3d 1108 (Pa. 2012). “[A] reasonable probability is a probability that is sufficient to

undermine confidence in the outcome of the proceeding.” Commonwealth v. Spotz, 84

A.3d 294, 312 (Pa. 2014) (citations omitted); see also Strickland, 466 U.S. at 694. This

Court has cautioned that, in cases where prejudice is not self-evident, and the PCRA

court did not pass upon the prejudice element, a remand may be appropriate.

Sepulveda, 55 A.3d at 1131; accord Hinton v. Alabama, ___ U.S. ___, 134 S.Ct. 1081

(2014) (remanding for reconsideration of whether a deficient performance of counsel

was prejudicial under Strickland, where no court had evaluated prejudice by applying

proper inquiry to the relevant facts).

       The panel majority below did not look to the trial evidence and assess the actual

harmful effect of the introduction of appellee’s post-polygraph statement to Detective

Kelly. In this regard, we note that the matter does not appear to be so simple, given

that appellee’s other statements to police (including his first post-polygraph statement to

Detective Steenson) became evidence, and appellee himself testified, and in a manner

that was not inconsistent, at its core, with his accounts to police.       The issue also

appears to implicate trial counsel’s PCRA testimony that he did not view appellee’s

statements, as a whole, to be particularly harmful to appellee’s case.17



17
   There is some superficial force to appellee’s argument that counsel had nothing to
lose in filing a motion to suppress, but decisions along these lines can include strategic
elements, particularly in a case where counsel believes that his client is credible and
(Qcontinued)

                                         [J-48-2013] - 38
       Rather than assess the actual trial circumstances, and counsel’s explanation, the

panel majority simply adverted to what it deemed to be an apparent PCRA hearing

concession by the Commonwealth.           Of course, it is up to the Commonwealth to

determine its appropriate litigation stance.      But, in this case, the Commonwealth

prevailed at the hearing level, it was the PCRA court’s judgment that was under review

in the Superior Court, and appellee bore the burden. The panel majority’s approach,

under the circumstances, was too facile.

       For all of these reasons, it is obvious that the Superior Court’s decision cannot

stand on its terms.      What remains to determine is whether appellee’s claim of

ineffectiveness, properly assessed, entitles him to relief on grounds that trial counsel

was ineffective in failing to file a motion to suppress. In our view, this is a matter better

determined by the Superior Court in the first instance, following relevant additional

briefing. The claim as presented in this Court has complications not appreciated by the

parties or the courts below – specifically, the relevant trial evidence concerning

appellee’s waiver and his post-polygraph interview with Detective Kelly.                The

interrelationship of that evidence with the PCRA hearing testimony is a matter that

should be addressed prior to an ultimate decision. We recognize that we could simply

ignore the trial testimony, as the lower courts and the parties have, and assess

appellee’s claim upon a diminished record. But, we do not regard this as the optimal

practice, particularly where it appears that central points appellee testified to under oath,

at different proceedings, are in tension, and no factual finding has been made to resolve

the tension. In addition, we note, the Superior Court did not address appellee’s second

claim, involving his April 21st statement, nor did it assess his post-polygraph statement

(continuedQ)
should testify. We offer no ultimate view on the notion here; the point is that the case
presents apparent nuances not appreciated by the panel majority.



                                      [J-48-2013] - 39
to Detective Steenson; the content and admissibility of those statements could affect an

appropriate prejudice assessment. Accordingly, we will vacate the order and judgment

of the Superior Court and remand to that court to consider appellee’s claim anew,

consistently with the guidance in this Opinion, and to pass upon appellee’s remaining

claim.

         Vacated and remanded to the Superior Court for further consideration

consistently with this Opinion. Jurisdiction is relinquished.




         Mr. Justice Baer, Madame Justice Todd and Mr. Justice Stevens join the opinion.



         Mr. Justice Saylor files a concurring opinion.



         Mr. Justice Eakin files a concurring opinion.




                                       [J-48-2013] - 40
