                           [J-66-2014] [MO: Saylor, C.J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA, :                No. 33 EAP 2013
                              :
              Appellant       :                Appeal from the Order of Superior Court
                              :                entered February 5, 2013, at 1174 EDA
                              :                2011, affirming the order dated May 2,
          v.                  :                2011 in the Court of Common Pleas,
                              :                Philadelphia County, Criminal Division,
                              :                CP-51-CR-0012459-2008
DENNIS BLAND,                 :
                              :                ARGUED: September 10, 2014
              Appellee        :
                                                DECIDED: May 26, 2015

                                  CONCURRING OPINION


MR. JUSTICE BAER


       Notwithstanding the appeal of the well-reasoned and thoughtful dissenting

opinion of Madame Justice Todd, which outlines the opposing view, I join in full the

majority opinion of Chief Justice Saylor because I find that it is more persuasively

consistent with decisions of the United States Supreme Court, inferior federal courts,

and our sister states.

       I write further only to comment on the process that occurred here. While Dennis

Bland (Appellee) was in Florida awaiting extradition, his father contacted the Defender

Association   of   Philadelphia    (Defender   Association)   and   explained   his   son’s

circumstances to an attorney. The attorney faxed a form, which is set forth in the




                             [J-66-2014][MO: Saylor, C.J.] 1
Majority Opinion and tracks the classic Miranda1 protections, to Appellee’s Florida

counsel, who was representing him in conjunction with extradition proceedings.

Appellee signed the form, which his Florida counsel apparently returned to the Defender

Association’s attorney, who then faxed copies of it to the Philadelphia police

department’s homicide unit and the Office of the Philadelphia District Attorney, in an

obvious attempt to invoke Appellee’s Miranda rights.2 It is this purported anticipatory

invocation of his right to counsel by fax which leads to this case.

       Neither the investigation of the homicide Appellee was charged with committing

nor the attempted invocation of his constitutional rights should be trivialized by

gamesmanship. In this respect, I find the anticipatory faxing of an alleged Miranda

invocation prior to indicia of interrogation from an unknown lawyer to a police

department of more than 7,000 (see www.phillypolice.com/about) and a District

Attorney’s Office with more than 600 (see www.phila.gov/districtattorney/about) to at

least approach such gamesmanship.            I recognize that the form of Appellee’s

anticipatory invocation is not at issue in this case and, under different facts, a different

result could be warranted. I therefore write to express my obvious distaste for the

invocation-by-fax made in this case, and my observation that at best courts should look

with skepticism at attempts to invoke constitutional rights by fax from counsel to police.




1
       See Miranda v. Arizona, 386 U.S. 436 (1966).
2
       In response, the homicide unit inscribed “ha, ha, ha” on the form and returned it
to the Defender Association’s lawyer. I do not condone such conduct.

                             [J-66-2014][MO: Saylor, C.J.] 2
