                                 [J-66-2014]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                              EASTERN DISTRICT

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


COMMONWEALTH OF PENNSYLVANIA,                  :   No. 33 EAP 2013
                                               :
              Appellant                        :   Appeal from the Order of the Superior
                                               :   Court entered on 2/5/13 at 1174 EDA
                                               :   2011 affirming the order dated 5/2/11 in
              v.                               :   the Court of Common Pleas,
                                               :   Philadelphia County, Criminal Division,
                                               :   CP-51-CR-0012459-2008
DENNIS BLAND,                                  :
                                               :
              Appellee                         :   ARGUED: September 10, 2014


                                         OPINION


MR. CHIEF JUSTICE SAYLOR                                        DECIDED: MAY 26, 2015



       Presently, we consider the effectiveness of an anticipatory invocation of the

Miranda-based right to counsel.

       To provide context, we begin with a brief summary of settled legal principles.

The text of the Sixth Amendment to the United States Constitution expressly establishes

a right to counsel pertaining in the criminal-law context. See U.S. CONST. amend. VI (“In

all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of

Counsel for his defense.”). This prescribed entitlement, however, attaches at critical

stages only after the government initiates adversarial judicial proceedings. See, e.g.,

Rothgery v. Gillespie Cnty., Tex., 554 U.S. 191, 198, 128 S. Ct. 2578, 2583 (2008).

       Nevertheless, federal constitutional law recognizes a distinct right to counsel

which may inure prior to the commencement of a criminal prosecution. Although such
entitlement is not expressly indicated in the Constitution, in Miranda v. Arizona, 384

U.S. 436, 86 S. Ct. 1602 (1966), the Supreme Court found that it derived from the right

against compelled self-incrimination under the Fifth Amendment. Id. at 444, 86 S. Ct. at

1612. See generally Montejo v. Louisiana, 556 U.S. 778, 794, 129 S. Ct. 2079, 2089

(2009) (commenting on the non-textual, prophylactic character of the Miranda-based

right to counsel). Furthermore, under Edwards v. Arizona, 451 U.S. 477, 101 S. Ct.

1880 (1981), once a defendant has validly invoked this Miranda-based right to have

counsel present during questioning, interrogation must be suspended. See id. at 484-

85, 101 S. Ct. at 1885.

       This appeal centers on the nature of a valid invocation of the Miranda-based right

to counsel, specifically, in terms of whether the right must be asserted in close temporal

proximity to custodial interrogation or may be effectively invoked remotely from such

questioning.

       Appellee, Dennis Bland, Jr., allegedly shot and killed Keron Remberan in

Philadelphia, then fled to his mother’s house in Florida. After learning of Appellee’s

whereabouts, police obtained an arrest warrant and notified Florida law enforcement.

Federal authorities in Florida detained Appellee, who was seventeen years old at the

time, and he was placed in a juvenile facility to await extradition to Pennsylvania.

       The day after Appellee’s arrest, his father contacted the Defender Association of

Philadelphia and apprised an attorney of his son’s circumstances. The lawyer sent a

form letter via facsimile to Florida counsel representing Appellee in connection with the

extradition proceedings, asking that Appellee sign and return the document. The letter

reflected a very clear putative invocation of the Miranda-based right to counsel, as

follows:
               PLEASE BE ADVISED THAT I . . . DO NOT WISH TO
               SPEAK WITHOUT AN ATTORNEY PRESENT.


                                      [J-66-2014] - 2
              I WISH TO BE REPRESENTED BY A LAWYER. UNTIL
              SUCH TIME AS I HAVE AN OPPORTUNITY TO FULLY
              DISCUSS THE DETAILS OF MY CASE WITH MY LAWYER
              . . ., I STATE THE FOLLOWING TO YOU:

                     I DO NOT WISH TO BE QUESTIONED OR HAVE ANY
                     DISCUSSION WITH THE POLICE.

                     I DO NOT WISH TO SPEAK TO YOU WITHOUT MY
                     ATTORNEY PRESENT.

                            *              *             *

              I WILL NOT WAIVE OR GIVE UP ANY OF MY RIGHTS
              UNDER MIRANDA V. ARIZONA, NOR WILL I GIVE UP
              ANY    OF   MY   PENNSYLVANIA   OR   FEDERAL
              CONSTITUTIONAL RIGHTS EITHER ORALLY OR IN
              WRITING WITHOUT THE PRESENCE OF MY LAWYER.
Commonwealth v. Bland, No. CP-51-CR-0012459-2008, slip op. at attachment C (C.P.

Phila. Aug. 22, 2011) (capitalization and additional emphasis in original).         Appellee

signed the letter, and it was returned to the Defender Association, which forwarded

copies to the Philadelphia Police Department’s homicide unit and the Office of the

District Attorney.

       Subsequently, Appellee waived extradition and was escorted to Philadelphia,

where he remained in police custody. Six days after Appellee had signed the form sent

by the Defender Association while he was in Florida, a detective provided him with

Miranda warnings.       During ensuing questioning, Appellee ultimately confessed to

perpetration of the killing, and, after later consultation with his father, he also provided a

written confession.

       Appellee was charged with murder, firearms violations, and several related

offenses, and the Defender Association was formally appointed as counsel. Appellee

filed a pre-trial motion to suppress his written statement, claiming that police violated his

rights under Miranda, as well as under Article 1, Section 9 of the Pennsylvania

                                       [J-66-2014] - 3
Constitution, which, like the Fifth Amendment, protects against self-incrimination. See

PA. CONST. art. 1, §9. Thus, Appellee sought an exclusionary remedy. See generally

Commonwealth v. DeJesus, 567 Pa. 415, 434-35, 787 A.2d 394, 405 (2001) (explaining

that suppression is appropriate to redress Miranda violations). After a hearing, the

suppression court awarded relief and foreclosed the admission of Appellee’s

confessions into evidence at his forthcoming trial, without any independent treatment of

state constitutional considerations.

       In its opinion, the suppression court explained that Miranda’s prophylactic

measures -- including its affordance of a right to counsel relative to in-custody

interrogation -- were intended to protect a suspect’s Fifth Amendment rights from the

“inherently compelling pressures” of the custodial environment. Bland, No. CP-51-CR-

0012459-2008, slip op. at 6 (quoting Maryland v. Shatzer, 559 U.S. 98, 104-05, 130 S.

Ct. 1213, 1219 (2010) (citation omitted)). Additionally, the court referred to the Edwards

requirement that, once a detainee has invoked his Miranda based right to counsel

during custodial interrogation, questioning must be suspended. See id. at 7-8 (citing

Edwards, 451 U.S. at 484-85, 101 S. Ct. at 1885).

       In terms of the timing of Appellee’s invocation, the suppression court relied on

broad language from Miranda specifying that, if an individual “indicates in any manner

and at any stage of the process that he wishes to consult with an attorney before

speaking[,] there can be no questioning.” Id. at 8 (quoting Miranda, 384 U.S. at 444-45,

86 S. Ct. at 1612 (emphasis added)).              Applying this principle to Appellee’s

circumstances, the court determined that -- because he had personally asserted his

rights by signing the non-waiver letter -- Appellee had made an effective invocation, and

uncounseled interrogation was proscribed even six days later.




                                       [J-66-2014] - 4
       The suppression court recognized that, in McNeil v. Wisconsin, 501 U.S. 171,

111 S. Ct. 2204 (1991), the Supreme Court of the United States had expressed some

reservation about an expansive approach to when the right to counsel may be

effectively asserted, explaining that it had “in fact never held that a person can invoke

his Miranda rights anticipatorily, in a context other than ‘custodial interrogation.’” Id. at

182 n.3, 111 S. Ct. at 2211 n.3; cf. Montejo, 556 U.S. at 795, 129 S. Ct. at 2090

(“[N]oninterrogative interactions with the State do not involve the ‘inherently compelling

pressures,’ that one might reasonably fear could lead to involuntary waivers.” (citation

omitted)); Rhode Island v. Innis, 446 U.S. 291, 300, 100 S. Ct. 1682, 1689 (1980)

(“[T]he special procedural safeguards outlined in Miranda are required not where a

suspect is simply taken into custody, but rather where a suspect in custody is subjected

to interrogation.”).   The court was persuaded, however, that, in the absence of a

definitive, binding holding to the contrary, an anticipatory invocation should be honored.

       The Commonwealth lodged an interlocutory appeal in the Superior Court, 1 and a

divided, three-judge panel affirmed via memorandum decision, essentially applying the

reasoning of the suppression court. See Commonwealth v. Bland, 1174 EDA 2011, slip

op. (Pa. Super. Feb. 5, 2013).           The majority acknowledged the opinions in

Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d 483 (2009), and Commonwealth v.

Romine, 453 Pa. Super. 42, 682 A.2d 1296 (1996) (en banc), both of which recognized

that Miranda-based rights cannot be invoked anticipatorily. See Sherwood, 603 Pa. at

119-20, 982 A.2d at 500; Romine, 453 Pa. Super. at 54-55, 682 A.2d at 1302.

According to the majority, however, Sherwood is consistent with the view that custody,

rather than custodial interrogation, serves as the appropriate litmus for a valid

1
  As the basis for interlocutory appellate review, the Commonwealth certified in its
notice of appeal that the suppression of Appellee’s inculpatory statement would
terminate or substantially handicap the prosecution. See Pa.R.A.P. 311(d).


                                      [J-66-2014] - 5
invocation. See Bland, 1174 EDA 2011, slip op. at 11-12 (citing Sherwood, 603 Pa. at

119-20, 982 A.2d at 500 (“Since [the defendant] was not in custody when he made his

statement about a lawyer, his alleged invocation of his right to counsel had no Fifth

Amendment effect[.]”)).     Moreover, the majority appeared to disregard Romine’s

rejection of anticipatory invocations, merely because the decision had been referenced

in Sherwood, see id. at 10, albeit that Romine, unlike Sherwood, did involve post-arrest

statements. See Romine, 453 Pa. Super. at 46, 682 A.2d at 1298.

       Then-President Judge Stevens authored the dissent. Initially, he recognized that

custody is a necessary prerequisite to a valid assertion of Miranda rights. See Bland,

1174 EDA 2011, slip op. at 1 (Stevens, P.J., dissenting). Nevertheless, his reasoning

followed a line of decisions from other jurisdictions holding that custody is not, in and of

itself, a sufficient condition, since actual or imminent interrogation is also required. See

id. at 8-9 (quoting Alston v. Redman, 34 F.3d 1237, 1244-45, 1251 (3d Cir. 1994) (“If a

suspect does not wish to communicate with the police except through an attorney, he

can simply tell them that when they give him the Miranda warnings.” (quoting McNeil,

501 U.S. at 180, 111 S. Ct. at 2210))). 2

2
  See also United States v. Grimes, 142 F.3d 1342, 1348 (11th Cir. 1998) (“We find the
reasoning of our fellow circuits persuasive and hold that Miranda rights may be invoked
only during custodial interrogation or when interrogation is imminent.”); United States v.
LaGrone, 43 F.3d 332, 338 (7th Cir. 1994) (taking the view that there are certain
“windows of opportunity” within which a defendant must assert his Miranda right to
counsel); United States v. Wright, 962 F.2d 953, 955 (9th Cir. 1992) (declining to
sanction anticipatory invocations outside the context of custodial interrogation); People
v. Villalobos, 737 N.E.2d 639, 642-45 (Ill. 2000) (“[A] majority of state courts have relied
on the language in McNeil to hold that one cannot anticipatorily invoke the right to
counsel prior to custodial interrogation.” (citations omitted)); Sapp v. State, 690 So. 2d
581, 586 (Fla. 1997) (explaining that “requiring the invocation to occur either during
custodial interrogation or when it is imminent strikes a healthier balance between the
protections of the individual from police coercion . . . and the State’s need to conduct
criminal investigations”); Hoerauf v. State, 941 A.2d 1161, 1173-76 & n.13 (Md. Ct.
(continued…)
                                      [J-66-2014] - 6
       According to the dissent, this requirement flows directly from the justification for

implementing special safeguards in the first instance, which traces to Supreme Court of

the United States’ concern with the inherently coercive effects of custodial interrogation.

Accord Alston, 34 F.3d at 1246 (“The antipathy expressed in McNeil towards the

anticipatory invocation of the Miranda rights is consistent with Miranda’s underlying

principles. The Miranda right to counsel is a prophylactic rule that does not operate

independent from the danger it seeks to protect against[.]”); State v. Warness, 893 P.2d

665, 668 (Wash. Ct. App. 1995) (“The need for Miranda protection does not exist except

in a custodial interrogation situation. The right cannot be invoked before it exists.”).

Thus, President Judge Stevens concluded that, “[w]ithout the compelling pressures of

interrogation imminent, Appellee’s invocation of Fifth Amendment rights were merely

anticipatory of custodial interrogation and, accordingly, not a valid exercise of

constitutional rights.”   Bland, 1174 EDA 2011, slip op. at 9-10 (Stevens, P.J.,

dissenting).

       The Commonwealth petitioned for allowance of appeal, and we accepted review

of the following issue:

               Did Superior Court err by suppressing a confession that
               respondent gave after receiving Miranda v. Arizona, 384
               U.S. 436 (1964), warnings because, six days prior to any
               police questioning, while in custody in another jurisdiction,


(…continued)
Spec. App. 2008) (applying the suggestion from McNeil that “custody, absent
interrogation, is insufficient” (citation omitted)); State v. Relford, 623 N.W.2d 343, 347
(Neb. Ct. App. 2001) (collecting cases for the proposition that “[m]any state courts which
have considered the issue have relied on the language in McNeil v. Wisconsin to hold
that one cannot anticipatorily invoke the Miranda right to counsel prior to custodial
interrogation” (citation omitted)). See generally 2 W AYNE R. LAFAVE, JEROLD H. ISRAEL,
NANCY J. KING & ORIN S. KERR, CRIMINAL PROCEDURE §6.9(g) & n. 200 (3d ed. 2014)
(collecting cases).


                                      [J-66-2014] - 7
             he had signed a form anticipatorily declining to be
             interviewed?
Commonwealth v. Bland, 620 Pa. 583, 72 A.3d 263 (2013) (per curiam).               As the

question presented is solely one of law, our review is plenary.

      In its arguments to this Court, the Commonwealth maintains the position taken by

President Judge Stevens, contending that it is consistent with recent majority

expressions of the Supreme Court of the United States, see, e.g., Montejo, 556 U.S. at

797, 129 S. Ct. at 2091 (explaining that “[w]hat matters for Miranda and Edwards is

what happens when the defendant is approached for interrogation, and (if he consents)

what happens during the interrogation”), as well as with the approach of a majority of

federal and state jurisdictions refusing to validate anticipatory invocations of the

Miranda-based right to counsel. See Alston, 34 F.3d at 1243-49; see also supra note 2.

The Commonwealth also complains that the Superior Court majority ignored the

express and controlling precedent established by the en banc panel of the intermediate

court in Romine, without supplying any substantive justification for such deviation.

      Throughout its brief, the Commonwealth places main points of emphasis on

McNeil’s apparent disapproval of anticipatory invocations, as well as the direct

derivation of the Miranda-based right to counsel from a specific concern with the

coercive aspects of custodial interrogation.      See, e.g., Brief for Appellant at 18

(“Miranda was intended [to] protect against ‘the compelling atmosphere inherent in the

process of in-custody interrogation[;]’ in the absence of imminent questioning, applying

special prophylactic rules designed to counteract that specific danger makes little

sense.” (quoting Alston, 34 F.3d at 1246) (emphasis omitted; alterations added)). Also

criticizing the reliance on broad language taken from Miranda itself, the Commonwealth

urges that such decision should be read according to its context.          See id. at 21




                                     [J-66-2014] - 8
(asserting that Miranda’s allusion to the appropriate invocation of a right to counsel “at

any stage of the process” refers only to the process of custodial interrogation).

       Additionally, according to the Commonwealth, the approach of rejecting

anticipatory invocations maintains an appropriate balance between the rights of the

accused and the compelling state interest in effective police investigations.       In this

regard, the Commonwealth posits that there is little harm in requiring that a suspect

should await interrogation before asserting Miranda rights, since a detainee who “does

not wish to communicate with the police except through an attorney . . . can simply tell

them that when they give him the Miranda warnings.” Brief for Appellant at 18 (quoting

McNeil, 501 U.S. at 180, 111 S. Ct. at 2210). On the other hand, the Commonwealth

asserts, a permissive view of anticipatory invocation would hamper effective law

enforcement, particularly since the entitlement to counsel during questioning is not

offense specific. 3   In this regard, the Commonwealth repeatedly highlights the

substantial value of confessions to enforcement. See, e.g., Brief for Appellant at 18

(citing McNeil, 501 U.S. at 181, 111 S. Ct. at 2210 (explaining that “the ready ability to

obtain uncoerced confessions is not an evil but an unmitigated good”)).

       In terms of Appellee’s state constitutional claim, the Commonwealth observes

that he has never claimed that there is any difference in the scope or applicability of the

3
  See generally Shatzer, 559 U.S. at 109, 130 S. Ct. at 1222 (explaining that, once a
valid invocation of the Miranda-based right to counsel has occurred, “[t]he [Edwards]
prohibition applies . . . when the subsequent interrogation pertains to a different crime,
when it is conducted by a different law enforcement authority, and even when the
suspect has met with an attorney after [a prior] interrogation.” (citations omitted)).

Parenthetically, such rationale from Shatzer reflects another aspect in which the
jurisprudence deriving from the Fifth Amendment differs from the right to counsel under
the Sixth Amendment, since the latter is offense specific. See McNeil, 501 U.S. at 175,
111 S. Ct. at 2207.



                                      [J-66-2014] - 9
Pennsylvania and United States Constitutions relative to preemptive requests for

counsel, thus resulting in waiver. Alternatively, the Commonwealth posits that there is

nothing in the text or history of Article 1, Section 9 of the Pennsylvania Constitution

which would justify the suppression of Appellee’s statements or to otherwise sanction

anticipatory invocations of counsel.

      In response, Appellee initially focuses on various factual circumstances which

are collateral matters relative to the general rule of law which he advocates. 4 Upon

proceeding to the essential point, Appellee urges that, once a suspect in custody

asserts the Miranda right to counsel, law enforcement officials should be prohibited from

approaching and interrogating the accused.         Consistent with the reasoning of the

suppression court, Appellee circles back to the broad language employed by the

Supreme Court in Miranda. See Miranda, 384 U.S. at 444-45, 86 S. Ct. at 1612 (“If,

however, [the detainee] indicates in any manner and at any stage of the process that he

wishes to consult with an attorney before speaking there can be no questioning.”

(emphasis added)). Appellee downplays McNeil and Montejo as expressing dictum,

since the cases were resolved on unrelated grounds, and, similarly, categorizes the en

banc Superior Court’s Romine decision as being solely a Sixth-Amendment case.

Appellee also refutes the Commonwealth’s contention that a majority of jurisdictions

decline to recognize anticipatory invocations of the right to counsel.     See Brief for

Appellee at 16-17. In this regard, Appellee presents his own collection of decisions,

most relevantly, State v. Rose, 604 A.2d 24, 26-28 (Me. 1992) (holding that a written


4
  For example, Appellee discusses the circumstances that he was a juvenile at all
relevant times; his letter-invocation was provided to the homicide unit of the
Philadelphia police department; and an unknown employee of that unit apparently
responded to Appellee’s attempted assertion of his rights with the notation: “Ha, ha,
ha.” Brief for Appellee at 8.


                                       [J-66-2014] - 10
request for counsel presented remote from interrogation represented a valid invocation

of the Miranda-based right to counsel).

      Alternatively, Appellee argues that, even if Miranda does not encompass

anticipatory invocations, Article 1, Section 9 of the Pennsylvania Constitution should be

read as more broadly sanctioning them.        In furtherance of this position, Appellee

observes that, although Pennsylvania’s right against self-incrimination previously has

not been interpreted as extending beyond the bounds of its federal analogue (with the

exception of reputation, see Commonwealth v. Gibbs, 4 U.S. 253, 3 Yeates 429 (Pa.

1802)), the decisional law has not touched upon the discrete issue in this case. Given

the evolving Miranda analyses proffered by the United States Supreme Court over the

years, Appellee asserts that Pennsylvania has a strong interest in maintaining a

coherent and stable body of law that reflects Miranda’s ostensible dictate to respect pre-

interrogation demands for counsel. Cf. Theodore v. Del. Valley Sch. Dist., 575 Pa. 321,

342-43, 836 A.2d 76, 89 (2003) (“[T]he fact that the U.S. Supreme Court relaxed its

scrutiny in this area . . . is no reason for this Court to reconsider [our own

jurisprudence].”). Accordingly, Appellee concludes that the Pennsylvania Constitution

provides an independent source for suppression in this matter.

      Upon our review, we agree with the essential position of the Commonwealth and

then-President Judge, now-Justice, Stevens. As related above, recent complements of

Justices of the Supreme Court of the United States have sent a plain signal that the

Miranda-based right to counsel should be constrained according to its express

justifications, namely, to counterbalance the coercive environment of custodial

interrogation which had been emphasized in Miranda, 384 U.S. at 456-58, 86 S. Ct. at

1618-19. See Montejo, 556 U.S. at 795, 129 S. Ct. at 2090; McNeil, 501 U.S. at 182

n.3, 111 S. Ct. at 2211 n.3. Accordingly, our assessment, consistent with the weight of


                                    [J-66-2014] - 11
the authority, is that valid invocations of this Miranda right should be made in close

temporal proximity to the circumstances giving rise to the relevant concern. Accord

McNeil, 501 U.S. at 182 n.3, 111 S. Ct. at 2211 n.3 (“Most rights must be asserted

when the government seeks to take the action they protect against.”). We find further

support for this determination in the observation that the Fifth Amendment does not

prohibit voluntary self-incrimination, but rather, only compelled self-incrimination. See

Alston, 34 F.3d at 1244 n.3 (explaining that “it is only compelled self-incrimination, not

self-incrimination per se, that is forbidden by the Fifth Amendment” (citing, inter alia,

Miranda, 384 U.S. at 478, 86 S. Ct. at 1630) (emphasis omitted)).

      To the degree that a further cost-benefit assessment on our part is appropriate

for purposes of federal constitutional law, we agree with the Commonwealth that the

burden of invoking the right to counsel in close proximity to custodial interrogation is

outweighed by legitimate law-enforcement objectives. See generally Herring v. United

States, 555 U.S. 135, 141, 129 S. Ct. 695, 701 (2009) (explaining that “[t]he principal

cost of applying [a new] rule is, of course, letting guilty and possibly dangerous

defendants go free -- something that offends basic concepts of the criminal justice

system,” and thus, such a position “presents a high obstacle for those urging [the new

rule’s] application” (citation and quotes omitted; alterations added)). In weighing the

competing considerations of extended preemptive Fifth Amendment protections versus

effective law enforcement, it is our conclusion that the widely-prevailing Miranda regime

strikes an appropriate balance, and there is no presently apparent reason to expand it

to encompass all custodial situations.

      We acknowledge that there is some force to the argument that, when

interrogation appears to be inevitable -- such as in the present circumstances in which

Appellee was accused of murder -- custody should be the only prerequisite to invocation


                                    [J-66-2014] - 12
of Miranda counsel. However, Miranda and its progeny have been repeatedly extolled

for the virtue in providing “bright-line” rules to both suspects and police in the custodial

interrogation context. See, e.g., Arizona v. Roberson, 486 U.S. 675, 682, 108 S. Ct.

2093, 2098 (1988) (praising the “clear and unequivocal” guidelines Miranda provides to

the law enforcement profession); Smith v. Illinois, 469 U.S. 91, 98, 105 S. Ct. 490, 494

(1984) (commending the bright-line rule of Edwards). Obviously, this advantage would

be seriously undermined by individualized and varying analyses as to which crimes or

factual circumstances would justify the belief that questioning is inevitable.

       We also recognize Appellee’s argument that his approach is supported by the

broader language employed by the Supreme Court of the United States in Miranda. We

cannot overlook, however, that the direction set by Miranda has been altered over the

ensuing decades, apparently in light of the predominance of different approaches to the

balancing of individual rights with effective law enforcement. See generally Thomas P.

Windom, The Writing on the Wall: Miranda’s “Prior Criminal Experience” Exception, 92

VA. L. REV. 327, 335-37 (2006) (positing that “[t]hough Miranda has been upheld –

indeed, even constitutionalized – its numerous refinements have strayed from the

original idealistic creation of the Warren Court”). In terms of federal constitutional law,

the direction, at this point, seems plain enough. Accord McNeil, 501 U.S. at 182 n.3,

111 S. Ct. at 2211 n.3; Alston, 34 F.3d at 1243-49; supra note 2.

       The present dissenting opinion regards the United States Supreme Court’s

decisions in Edwards and Minnick v. Mississippi, 498 U.S. 146, 111 S. Ct. 486 (1990),

as controlling. In both cases, however, the accused invoked his Miranda-based right to

counsel in close association with custodial interrogation. See id. at 148-49, 111 S. Ct.

at 488; Edwards, 451 U.S. at 479, 101 S. Ct. at 1882. Thus, Appellee is not “just like

the accused in Minnick,” Dissenting Opinion, slip op. at 9, or in Edwards for that matter,


                                     [J-66-2014] - 13
since Appellee simply did not invoke his rights in close association with custodial

interrogation; in point of fact, Appellee acceded to questioning at such time. For this

reason, the Edwards and Minnick decisions no more stand as precedent for the

proposition advanced by the dissent than McNeil does for the contrary proposition.

       Instead, per the express explanation of the Supreme Court of the United States

in McNeil, the issue remains one of first impression in that Court. See McNeil, 501 U.S.

at 182 n.3, 111 S. Ct. at 2211 n.3. Nevertheless, the dissenting opinion discounts the

McNeil Court’s explanation, based upon its own view that the McNeil Court meant to

say “custody” when it said “custodial interrogation.” See Dissenting Opinion, slip op. at

15.

       In our view, the dissent’s account of the discussion from McNeil is simply not

accurate. In addition to the facial discrepancies between the passage from McNeil and

the dissent’s recasting of it, the McNeil Court cited two previous opinions centered

squarely on “interrogation” (and not upon custody, since the fact of custody was

undisputed in both cases) in support of its observation that there is no precedent for a

valid invocation of Miranda rights anticipatorily outside the context of “custodial

interrogation.”   See McNeil, 501 U.S. at 182 n.3, 111 S. Ct. at 2211 n.3 (citing

Pennsylvania v. Muniz, 496 U.S. 582, 601-02, 110 S. Ct. 2638, 2650-51 (1990)

(plurality), and Rhode Island v. Innis, 446 U.S. 291, 298-303, 100 S. Ct. 1682, 1688-91

(1980)). It would seem evident, therefore, that the McNeil Court’s inclusion of the word

“interrogation” in “custodial interrogation” cannot be cast as a typographical or

conceptual error.

       We have acknowledged that our decision is not fully harmonious with the

ideological perspective conveyed in Miranda. In our view, however, the approach of the

dissent is as or more disharmonious with a number of more recent expressions by the


                                    [J-66-2014] - 14
Supreme Court of the United States, including the relevant expression from McNeil

(albeit its status as dicta). Indeed, even the commentary referenced in the dissent

confirms that an originalist approach to Miranda has been eschewed in subsequent

majority decisions of that Court.       See Marcy Strauss, The Sounds of Silence:

Reconsidering the Invocation of the Right to Remain Silent Under Miranda, 17 W M. &

MARY BILL RTS. J. 773, 803 (2009) (contending that Davis v. United States, 512 U.S.

452, 114 S. Ct. 2350 (1994), was wrongly decided, because it is “inconsistent with the

premise of Miranda”).

        In response to Appellee’s claim for approval of anticipatory invocations of a right

to counsel under Article 1, Section 9 of the Pennsylvania Constitution, on the arguments

presented, we find that the textual similarity between the United States and

Pennsylvania Constitutions, the history of our abiding by the United States Supreme

Court’s Miranda regime as it has evolved, and the approach of other jurisdictions and

salient policy considerations as reflected in our discussion above, favor continued

alignment of our jurisprudence with that of its federal counterpart on the relevant point.

        In summary, we hold that, to require a suspension of questioning by law

enforcement officials on pain of an exclusionary remedy, an invocation of the Miranda-

based right to counsel must be made upon or after actual or imminent commencement

of in-custody interrogation.

        The order of the Superior Court is reversed, and the case is remanded for further

proceedings in accordance with this opinion, presumably, for trial.



        Mr. Justice Stevens did not participate in the consideration or decision of the

case.




                                     [J-66-2014] - 15
       Former Chief Justice Castille and former Justice McCaffery did not participate in

the decision of this case.

       Messrs. Justice Eakin and Baer join the opinion.

       Mr. Justice Baer files a concurring opinion.

       Madame Justice Todd files a dissenting opinion.




                                     [J-66-2014] - 16
