                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-10-2004

Reinert v. Larkins
Precedential or Non-Precedential: Precedential

Docket No. 02-3184




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"Reinert v. Larkins" (2004). 2004 Decisions. Paper 374.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/374


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                   PRECEDENTIAL
                                        THEODORE SIMON, ESQ. (ARGUED)
                                        Fifth Floor
IN THE UNITED STATES COURT OF           1600 Market Street
            APPEALS                     Philadelphia, PA 19103
     FOR THE THIRD CIRCUIT
        _________________               Attorney for Appellant

           NO. 02-3184
        _________________               JAMES B. M ARTIN, ESQ.
                                        District Attorney of Lehigh County
                                        JOAN L. REINSMITH, ESQ.
        SCOT A. REINERT,                (ARGUED)
                                        Deputy District Attorney
                  Appellant             KELLY B. WALDRON, ESQ.
                                        Office of District Attorney
                   v.                   455 West Hamilton Street
                                        Lehigh County Courthouse
       DAVID H. LARKINS,                Allentown, PA 18101
       SUPERINTENDENT;
DISTRICT ATTORNEY OF LEHIGH             Attorneys for Appellees
             COUNTY,
JAMES MARTIN; *THE ATTORNEY                       _________________
          GENERAL OF
    PENNSYLVANIA, GERALD                      OPINION OF THE COURT
            PAPPERT                              _________________
  *(Pursuant to Rule 43(c) F.R.A.P)
        _________________
                                        BECKER, Circuit Judge.
  On Appeal from the United States          This appeal by Scot A. Reinert
           District Court For           (“Reinert”), a state prisoner serving a
 The Eastern District of Pennsylvania   sentence of life imprisonment for first
        (D.C. No. 98-cv-05257)          degree murder, from an order of the
District Judge: Honorable Anita Brody   District Court denying his petition for a
      ______________________            writ of habeas corpus, presents two
                                        congeries of issues, one dealing with
        Argued May 3, 2004              Miranda rights, and the other with
                                        ineffective assistance of counsel.
 Before: SLOVITER, FUENTES and          Considering the Miranda issues first, we
      BECKER, Circuit Judges            must evaluate the admissibility of three
                                        statements made by Reinert when he was
      (Filed: August 10, 2004)          being transported to the hospital by
emergency medical technicians (“EM Ts”),               Reinert was in custody and that his pre-
accompanied by police officers. The                    Miranda statement should not have been
admissibility of the first two statements—             admitted. Deference is not due to the state
one to an EMT and the other to an officer,             trial judge’s finding and conclusion to the
both of which were given prior to the                  contrary because she mistakenly stated that
a d m i n i s t r at i o n of an y M i r a n d a       the second statement was post-Miranda
warnings—turns on whether Reinert was                  warning. However, due to the fact that the
in custody at the time he made the                     statement was duplicative of others
statements. The admissibility of the third             properly received after appropriate
statement, made to a police officer after a            Miranda warnings were administered, we
Miranda warning had been given, depends                conclude that the error was harmless.
on Reinert’s competence at the time to
                                                           Additionally, we are satisfied that when
waive his Miranda rights. Then we must
                                                       the post-Miranda statement in the
determine whether Reinert was competent
                                                       ambulance and the subsequent (post-
to waive his Miranda rights when he made
                                                       surgery) statement was made at the
a statement to two detectives at the
                                                       hospital, Reinert was alert and oriented
hospital following surgery. We do not, of
                                                       and that his waiver of Miranda rights was
course, either write or decide on a blank
                                                       voluntary. The state trial court decision, in
slate. The record contains fact findings by
                                                       accord with these conclusions, was not
the state trial judge following a
                                                       based on an unreasonable determination of
suppression hearing, and our decision
                                                       the facts in light of the evidence presented
making is constrained by the rigorous
                                                       in the state court proceedings, nor was it
standard of review under the Antiterrorism
                                                       contrary to or an unreasonable application
and Effective Death Penalty Act of 1996
                                                       of clearly established federal law as
(“AEDPA”), codified in relevant part at 28
                                                       determined by the United States Supreme
U.S.C. §§ 2241-2255.
                                                       Court.
    We are satisfied that, at the time of
                                                           The second set of issues before us
Reinert’s first statement, made to an EMT
                                                       stems from Reinert’s claims of ineffective
when he was being transported to the
                                                       assistance of counsel allegedly in violation
hospital for treatment (at which time he
                                                       of his Sixth Amendment rights. First, he
was not a crime suspect and indeed was
                                                       complains of his state trial counsel’s
considered a possible victim), he was not
                                                       failure to call a medical expert to testify at
in custody, even though a police officer
                                                       the suppression hearing as to his alleged
was present in the ambulance. However,
                                                       mental and physical inability to voluntarily
with respect to the second statement made
                                                       and knowingly waive his Miranda rights.
in the ambulance to a police officer to
                                                       However, our analysis of the record will
whom Reinert was “turned over” by the
                                                       show that the expert testimony that Reinert
E M T a f t e r h is f ir s t se e m i n g ly
                                                       believed would have helped him would
incriminating statement, we conclude that
                                                       have made no difference to the merits of

                                                   2
his Miranda claim. He also scores his                   Shortly after Mertz’s arrival, three
counsel’s failure to inform him of his right        more Allentown police officers, Bruce
to testify at the suppression hearing, but          Zimmerman (“Zimmerman”), Robert
we conclude that this claim too lacks               Lembach (“Lembach”), and Brian Brader
merit.     Reinert has thus failed to               (“Brader”), arrived at Reinert’s home,
demonstrate that he was prejudiced by his           followed by the EMTs. Law enforcement
counsel’s actions; moreover the state               officers secured the home. The EMTs
court’s conclusions on the issue were not           examined Reinert; his blood pressure was
contrary to or an unreasonable application          down and his pulse rate was up. The
of clearly established federal law as               EMTs helped Reinert to his feet and he
determined by the United States Supreme             then walked to the ambulance. At this
Court.                                              juncture, Zimmerman was ordered by his
                                                    superiors to remain with Reinert and told
    We will therefore affirm the order of
                                                    “not to let him leave your custody.”
the District Court denying the petition.
                                                        Reinert was laid on a stretcher inside
                                                    the ambulance, had an oxygen mask placed
           I. Background Facts                      over his face, was given IVs in his arms,
                                                    and was hooked up to an
    On March 10, 1991, responding to a
                                                    electrocardiograph.       Reinert had been
telephone call during which Reinert made
                                                    observed to have lacerations to his wrists
some rather bizarre statements, his mother
                                                    and he complained of an injured ankle.
Janet Ketner and her husband rushed to his
                                                    When he was in the ambulance, the EMTs
home and found him sitting on the first
                                                    noticed multiple lacerations to his
floor covered in blood, with large, visible
                                                    abdomen.         Upon discovery of the
slashes on both wrists. Mr. Ketner called
                                                    abdominal wound, EMT Timothy Snyder
911, describing Reinert as delirious.
                                                    (“ Sn yd e r ” ) a s k ed Re ine r t “ w h a t
Police and ambulance services soon
                                                    happened?” Reinert responded “I stabbed
arrived. Reinert looked strange, and it was
                                                    him with a butcher knife, then I did
determined that he had recently attempted
                                                    myself.” Snyder at once turned to Officer
suicide by drinking alcohol, taking
                                                    Zimmerman and stated, “I think you ought
sleeping pills, and slashing his wrists. At
                                                    to step in.”
12:11 p.m., Officer Jeffrey Mertz
(“Mertz”) arrived, checked on Reinert and               Zimmerman then, without advising
his parents in the first floor living room,         Reinert of his Miranda rights, asked him
and then went upstairs to check the                 “what happened?” Reinert responded to
parents’ report of a body on the third floor.       the question by stating, “I think I killed
When Mertz reached the third floor, he              him. I think I stabbed him.” At that point,
found the body of Sean Brady, Reinert’s             Zimmerman read Reinert his Miranda
long time companion, and determined that            rights. See infra note 3. After reading
he was dead.                                        Reinert his rights, Zimmerman asked him:

                                                3
“And with these rights in mind, do you                  At 7:47 p.m., Detectives Joseph
wish to talk to us now?” Reinert replied:           Stauffer (“Stauffer”) and Glenn Granitz
“I think I killed him.” When asked whom             (“Granitz”) arrived at the hospital. The
he had killed, Reinert responded: “Sean,            detectives first spoke to the attending
Sean Brady,” “with a butcher knife.”                physician, Dr. Homayoun Hashemi (“Dr.
                                                    Hashemi”), wh o testified that he
    Once at the Lehigh Valley Medical
                                                    performed a post-operative check at 7:30
Center (“LVMC”), Reinert underwent
                                                    p.m. on Reinert, and found him awake,
preparatory treatment for surgery by
                                                    coherent, and with stable vital signs. After
Nurses Thomas Gavigan and Patricia
                                                    conferring with Dr. Hashemi, the
Lombardo. Police officers were ordered
                                                    detectives went to see Reinert. They
by their superiors to stand guard outside
                                                    testified that they found him conscious,
his room.1 Reinert entered surgery at
                                                    oriented, alert, and responsive. They
approximately 1:15 p.m. Prior to surgery,
                                                    proceeded to interview him while he was
Reinert was, of course, anesthetized.
                                                    laying in the recovery room, wrists and
Surgery lasted approximately two and one-
                                                    abdomen bandaged, attached to IVs and
half hours. Reinert lost about half a pint of
                                                    other post-operative equipment. They first
blood during the operation; he had also
                                                    read him his Miranda rights. The two
lost a quart of blood prior to being treated
                                                    detectives present differing accounts as to
by the EMTs. Reinert experienced post-
                                                    how Reinert responded to the question:
operative pain, and was given Robinal, a
                                                    “Do you waive these [Miranda] rights?”
sedative and muscle relaxant, at 3:30 p.m,
                                                    Stauffer stated that Reinert answered the
and Cefoxitan, an antibiotic, at 6:00 p.m.
                                                    question verbally with a “yes,” whereas
                                                    Granitz said that Reinert merely nodded
                                                    his head.     Both detectives, however,
  1                                                 agreed that Reinert clearly communicated
    Zimmerman asked Gavigan prior to
                                                    to them his decision to waive his Miranda
Reinert’s treatment, at the doors of the
                                                    rights.
trauma room, “to note down anything
that Reinert said which may be of use to                The detectives then questioned him for
him.” During this surgical preparation,             forty-five minutes, during which Reinert
Gavigan asked Reinert some questions,               stated that he had obtained a knife, had
to which Reinert responded that he had              gone to see Sean Brady, who was in bed,
been fighting with his friend with a                and stabbed him.          Reinert’s chart
knife, they had fallen off the bed and that         indicated no abnormality with regard to his
he, the friend, might have done this.               ability to answer questions appropriately.
Reinert also acknowledged he might                  Dr. Hashemi also testified that the first
have wounded himself, and that he had               administration of medication for pain,
fallen down the stairs. However,                    spec ifically m orphine, was not
Reinert’s response to the nurse is not at           administered to the defendant until 10:00
issue on appeal.

                                                4
p.m.   We will amplify this factual                  indicative that the defendant was in
background in our discussion of the                  their custody.      Their presence
procedural history and the merits issues,            would be explained by many
infra.                                               things, including a desire to
                                                     interview an important witness or a
                                                     desire to protect a potential victim.
         II. Procedural History
                                                         We conclude therefore that the
   On or about March 10, 1991, Reinert               statement made to paramedic
was arrested and charged with the criminal           Snyder was not made while the
homicide of Sean Brady.           Pre-trial          defendant was in custody and,
motions, including motions to suppress               furthermore, that it was not made
physical evidence and statements, were               pursuant to interrogation by police
heard before Judge Carol K. McGinley of              officers.
the Court of Common Pleas of Lehigh
                                                  Second, the suppression court concluded
County. After a hearing, the suppression
                                                  that:
motions were denied.
                                                        The defendant remained
     The suppression court made a number
                                                     conscious, alert and oriented
of relevant findings. First, it rejected
                                                     throughout his transport to the
Reinert’s claim that his pre-Miranda
                                                     hospital.   No medication was
statement should be dismissed, finding that
                                                     administered to him in the care of
the statement was “volunteered by the
                                                     the Emergency Medical Service
defendant to Paramedic Snyder . . . in
                                                     Unit.
response to a routine question by
paramedic Snyder.” The court further              Then, after describing his treatment in the
concluded that:                                   emergency room, the Court found that
                                                  Reinert
   . . . although the police were
   present, there is nothing in the                  . . . remained alert and coherent.
   situation which would lead a                      H e responded to questions
   reasonable man to believe that he                 concerning allergies to medication
   was under arrest or in the custody                and to the approximate time of his
   of the police. The arrival of the                 most recent tetanus inoculation. He
   police at the scene was due to a                  indicated he was allergic to
   request made on his behalf by his                 penicillin. Ms. Lombardo observed
   mother and her husband, and the                   that his blood pressure was stable,
   defendant’s transport to the                      that his pulse was providing him
   Hospital Center was voluntary on                  with adequate oxygenation to the
   his part. The mere fact that police               brain, and she performed the
   were present was not in any way                   Glasgow coma score to determine


                                              5
   his level of consciousness. In all                   The    defendant,         upon
   categories the defendant received                questioning by Detective Stauffer,
   the highest possible score.                      made incriminating statements. In
                                                    the course of making these
    Turning to the next phase of the
                                                    statements the defendant was
treatment, the surgery, from which Reinert
                                                    volu ble , and volunteere d
returned at approximately 4:05 p.m., the
                                                    information not specifically sought
suppression court found:
                                                    by Detective Stauffer.         The
       At 7:47 p.m. Detective Stauffer              questioning ended at 8:30 p.m.
   arrived at the hospital with
                                                        Dr. Hashemi testified that he
   Detective Granitz. After speaking
                                                    had performed a post-operative
   to the attending physician, Dr.
                                                    check at 7:30 p.m. on the
   Homayoun Hashemi, the detectives
                                                    defendant, that he had seen that the
   proceeded to interview the patient.
                                                    defendant was awake, coherent,
   The questioning began at least five
                                                    and had stable vital signs. His
   hours after the defendant’s surgery
                                                    chart indicated no abnormality with
   had been completed.
                                                    regard to the defendant’s ability to
       Detective Stauffer determined                answer questions appropriately.
   that the patient was conscious and               Dr. Hashemi also testified that the
   oriented. He asked him his date of               first administration of medication
   birth and his social security                    for pain, specifically morphine, was
   number, both of which were later                 not administered to the defendant
   verified as accurate. He asked him               until 10:00 p.m.
   other questions to determine
                                                        Immediately following his
   whether or not the defendant was
                                                    statements to the police, the
   aware of his surroundings and
                                                    defendant was seen by his family,
   received satisfactory answers.
                                                    his close friend Cindy Mellinger,
       After determining that the                   and his mother’s minister. All
   defendant was able to be                         testified that he was extremely soft-
   responsive, Detective Stauffer                   spoken at this time.
   advised him of his rights, following
                                                     A jury trial commenced on January 15,
   which the defendant said he
                                                 1992, resulting in a verdict of guilty of
   understood his rights and he agreed
                                                 murder in the first degree. Reinert was
   to speak with the police. Detective
                                                 sentenced to life imprisonment. Timely
   Granitz also asked questions to
                                                 post-trial motions were denied as to all
   determine the capacity of the
                                                 issues on November 15, 1994.
   defendant, both at the beginning
   and the end of the statement.                    Through new (and present) counsel,
                                                 Reinert appealed to the Pennsylvania

                                             6
Superior Court.      During that appeal               psychiatric testi mon y at
Rein ert raised the issue of the                      suppression hearing to demonstrate
effectiveness of his trial counsel,                   that defendant’s mental illness
submitting a number of affidavits/letters in          prevented proper w aiver of
support of his ineffectiveness claim. On              Miranda rights where evidence
January 23, 1996, the Superior Court                  indicated defendant was aware of
denied relief on all grounds in a                     nature of right and consequence of
Memorandum Opinion, denying the                       waiver).
ineffectiveness claims without ordering an
                                                   The Superior Court also rejected Reinert’s
evidentiary hearing.      Inter alia, the
                                                   contention that he was denied effective
Superior Court stated:
                                                   assistance of counsel because his attorneys
   After reviewing the record, we find             failed to advise him that he could testify at
   that trial counsel thoroughly cross-            the suppression hearing. The Court found
   examined              all    of  the            that he established neither what his
   C omm onw ealth’s witnesses                     testimony would have been, nor how it
   regarding Reinert’s mental and                  would have altered the outcome of the
   physical state at the time he was               hearing. There was never an evidentiary
   given Miranda warnings and when                 hearing on the ineffectiveness issue, which
   he made statements to both the                  was raised for the first time in the
   police and the medical staff.                   Pennsylvania Superior Court; the Superior
   Moreover, we note that the                      Court rejected that claim on the basis of
   Commonwealth produced                           the record before it.
   o v er w helming evidence that
                                                       A motion for reconsideration and/or
   Reinert had knowingly and
                                                   reargument was denied by the Court. A
   voluntarily waived his Miranda
                                                   petition for allowance of appeal and a
   rights. Thus, we conclude that trial
                                                   petition for reconsideration of denial of
   counsel was not ineffective for
                                                   petition for allowance of appeal were filed
   failing to call medical experts at the
                                                   and denied by the Pennsylvania Supreme
   s u p p r e s si o n hea ring .   See
                                                   Court on September 26, 1996, and
   [Commonwealth v. Williams, 640
                                                   December 11, 1996, respectively. A
   A.2d 1251 (Pa. 1994)] (counsel was
                                                   petition for a writ of certiorari was denied
   not ineffective for failing to call
                                                   by the United States Supreme Court on
   expert witnesses w here he
                                                   October 6, 1997. This petition for a writ
   extensively cross-examined police
                                                   of habeas corpus now before us was filed
   officer and doctor regarding their
                                                   on October 2, 1998, and was denied by the
   testimony);               see   also
                                                   District Court on July 8, 2002. A motions
   Commonwealth v. Logan, 549 A.2d
                                                   panel of this Court granted a certificate of
   531 (Pa. 1988) (counsel was not
                                                   appealability (“COA”). Reinert continues
   ineffective for failing to employ
                                                   to serve a sentence of life imprisonment

                                               7
for murder. Because Reinert’s claims                    III. Admissibility of Reinert’s
were fully adjudicated in state court, we                        Statements
apply the by now familiar AEDPA
                                                     A. Pre-Miranda Statements to EMT
standard of review, which we set forth in
                                                       Snyder and Officer Zimmerman
the margin.2
                                                      As we have set forth above, at the time

  2
    Although our review of the District
Court’s decision is plenary, Marshall v.           involves “an unreasonable application
Hendricks, 307 F.3d 36, 50 (3d Cir.                of” clearly established federal law if it
2002), under AEDPA and the Supreme                 “unreasonably applies the law of this
Court’s decision in Williams v. Taylor,            Court to the facts of a prisoner’s case.”
529 U.S. 362 (2000), we must deny                  Id. at 409. This is an objective test: “[A]
federal habeas corpus relief to any claim          federal habeas court making the
which was adjudicated on the merits in a           ‘unreasonable application’ inquiry should
state court proceeding unless such                 ask whether the state court’s application
adjudication:                                      of clearly established federal law was
                                                   objectively unreasonable.” Id.
      (1) resulted in a decision that was
                                                   Moreover, “unreasonable” does not mean
      contrary to, or involved an
                                                   “erroneous.” Thus, “a federal habeas
      unreasonable application of,
                                                   court may not issue the writ simply
      clearly established Federal law, as
                                                   because that court concludes in its
      determined by the Supreme Court
                                                   independent judgment that the relevant
      of the United States; or
                                                   state-court decision applied clearly
      (2) resulted in a decision that was          established federal law erroneously or
      based on an unreasonable                     incorrectly. Rather, that application must
      determination of the facts in light          also be unreasonable.” Id. at 411.
      of the evidence presented in the
                                                       This standard does not apply,
      State court proceeding.
                                                   however, to claims that the state courts
28 U.S.C. §§ 2254(d)(1) and (2). A state           did not address on the merits. In such
court decision is “contrary to our clearly         instances we exercise the pre-AEDPA
established precedent if the state court           standard and “conduct a de novo review
applies a rule that contradicts the                over pure legal questions and mixed
governing law set forth in our cases . . . .       questions of law and fact. . . . However,
[or] if the state court confronts a set of         the state court’s factual determinations
facts that are materially indistinguishable        are still presumed to be correct,
from a decision of this Court and                  rebuttable upon a showing of clear and
nevertheless arrives at a result different         convincing evidence. See 28 U.S.C. §
from our precedent.” Williams, 529 U.S.            2254(e)(1).” Appel v. Horn, 250 F.3d
at 405-06. A state court decision                  203, 210 (3d Cir. 2001).

                                               8
of his initial statement Reinert was in the       that the following colloquy ensued.
ambulance being tended by the EMTs.
                                                     Q. Did M r. Reinert respond to this
After asking questions about his past
                                                     first question, “did he understand
medical history and allergies to
                                                     his right?”
medications, EMT Snyder, in an effort to
find out how the injury to the abdomen               A. As best as he could, yeah, he –
was sustained, asked Reinert what                    they were working on him and he,
happened, receiving the response “I                  you know, he kind of nodded and
stabbed him with a butcher knife, then I             then he said yes, or yeah.
did myself.” At this point, Snyder notified
                                                     Q. Did he actually vocalize words?
Officer Zimmerman and went on with his
treatment. When asked whether he was                 A. Right, yeah.
paying attention to the conversation taking
                                                     Q. He said, “yeah”, correct?
place between Officer Zimmerman and
Reinert, Snyder responded: “No, my job is            A. Correct
to administer emergency care, and my
                                                     Q. And you then asked him a
patient is my priority.”
                                                     second question, and what did he
    After Snyder asked Zimmerman to step             respond then?
in, Zimmerman, without advising Reinert
                                                     A. He basically just said, “I think I
of his Miranda rights, asked him “what
                                                     killed him” He didn’t say yes, and
happened?” and Reinert responded to the
                                                     then go on – he just started talking.
question by stating: “I think I killed him.
I think I stabbed him.” At that point,               Q. And what else did he say, or did
Zimmerman read Reinert his Miranda                   you ask any further questions?
rights. More specifically, Zimmerman
                                                     A. Yeah, I said, again, going back
read to Reinert the standard Miranda Card,
                                                     to that first thing, “I think I killed
the text of which we set forth in the
                                                     him, I stabbed him.” I said “Who
margin.3 At trial, Zimmerman testified
                                                     did you kill?” And he said, “Sean.”
                                                     And I asked, “Sean Brady?”
  3
    “My name is Officer Bruce
Zimmerman of the Allentown Police
Department. I wish to advise you that             attorney one will be appointed to
you have an absolute right to remain              represent you, without charge, before any
silent. That anything you say can and             questioning, if you so desire. And if you
will be used against you in a Court of            decide to answer any questions you may
law. That you have the right to talk to an        stop at any time you wish. Do you
attorney before and have an attorney              understand these rights I’ve explained to
present with you during questioning.              you? And with these rights in mind, do
That if you cannot afford to hire an              you wish to talk to us now?”

                                              9
   and—or he said, “Sean Brady,” I                        Furthermore, although the
   said, “Is that the gentlemen upstairs              police were present, there is
   on the third floor?” He said,                      nothing in the situation which
   “Yes.” I said, “How did you do                     would lead a reasonable man to
   it?” He said, “With a butcher                      believe that he was under arrest or
   knife.”                                            in the custody of the police. The
                                                      arrival of the police at the scene
     Reinert argues at great length that he
                                                      was due to a request made on his
was in custody at the time of the
                                                      behalf by his mother and her
ambulance statements.        His principal
                                                      husband, and the defendant’s
contentions are the following: (1) The
                                                      transport to the Hospital Center was
police had entered his home and controlled
                                                      voluntary on his part. The mere
it (though they had entered at his mother
                                                      fact that police were present was
and stepfather’s request); (2) the
                                                      not in any way indicative that the
investigating officers were directed to
                                                      defendant was in their custody.
accompany Reinert in the ambulance and
                                                      Their presence could be explained
keep him in their custody; and (3) the
                                                      by many things, including a desire
officers were in close proximity to Reinert
                                                      to interview an important witness
in the ambulance. Reinert contends that
                                                      or a desire to protect a potential
these factors combined in such a way that
                                                      victim.
a reasonable man in his situation would
not think himself “free to leave.”                        We conclude, therefore, that the
                                                      statement made to paramedic
    It is not entirely clear from Reinert’s
                                                      Snyder was not made while the
brief whether he objects to the statement
                                                      defendant was in custody, and,
made to the EMT or only to the one made
                                                      furthermore, that it was not made
to Zimmerman, but we will assume that
                                                      pursuant to interrogation by police
objection is made to both.
                                                      officers.
 1. The pre-Miranda statement to EMT
                                                       The question, of course, is whether the
                Snyder
                                                   state court’s determination that Reinert
   The state trial judge found as follows:         was not in custody is contrary to, or
                                                   involved an unreasonable application of,
       The first statement is that
                                                   clearly established federal law, as
   statement volunteered by the
                                                   determined by the Supreme Court of the
   defendant to paramedic Snyder. At
                                                   United States, or resulted in a decision that
   the time the statement was made, it
                                                   wa s ba se d on an u n r e a s o n a ble
   was volunteered by the defendant
                                                   determination of the facts in light of the
   in response to a routine question by
                                                   evidence presented in the state court
   paramedic Snyder. It was not
                                                   proceeding. We do not believe that this
   solicited by the police.
                                                   standard is met by Reinert with respect to

                                              10
the statement made to the EMTs. Reinert              free not to answer questions. He contrasts
was not in custody, nor was he a suspect in          his situation with the one at issue in United
a crime when he entered the ambulance for            States v. Leese, 176 F.3d 740 (3d Cir.
the purpose of medical treatment and                 1999), where a postal employee suspected
transport to the hospital. Although police           of having stolen postal funds was found
officers accompanied Reinert in the                  not to be in custody during the course of
ambulance, at that time officers had the             an interrogation where she was told she
limited knowledge that a body was found              was not under arrest, that she would not be
inside the house and that Reinert appeared           made to go with her questioners when they
to be wounded. Officers could have                   left, and during the course of which she
reasonably assumed that Reinert was a                was allowed to take breaks in order to
victim who could possibly identify a third           consult with her union representative.
person that may have been in the house.              Reinert argues that unlike in Leese where
Snyder stated that police officers regularly         the suspect was given ample opportunity to
ride with him in the ambulance and that he           end questioning and where she was
requested police officers to accompany               explicitly told that she was not under
him on this occasion.                                arrest, Reinert was never afforded similar
                                                     information or opportunities.
    Ordinarily, in determining whether an
individual is in custody, the ultimate                   While the difference is real, it is not
inquiry is “whether there is a ‘formal arrest        dispositive. Had Zimmerman made an
or restraint on freedom of movement’ of              explicit statement to Reinert that he was
the degree associated with a formal arrest.”         not under arrest or that he need not answer
California v. Beheler, 463 U.S. 1121, 1125           questions, such a statement would surely
(1983) (quoting Oregon v. Mathiason, 429             have bolstered the governmen t’s
U.S. 492, 495 (1977) (per curiam)). When             contention that Snyder’s questioning was
the individual has not been openly arrested          non-custodial in nature. However, the
w h e n the sta tements are ma de,                   absence of such a statement does not ipso
“‘something must be said or done by the              facto turn questioning into a custodial
authorities, either in their manner of               interrogation, especially wh en the
approach or in the tone or extent of their           questioning is being done by a medical
questioning, which indicates they would              professional in the course of providing
not have heeded a request to depart or to            routine medical care. See Mathiason, 429
allow the suspect to do so.’” Steigler v.            U.S. at 495 (“[P]olice officers are not
Anderson, 496 F.2d 793, 799 (3d Cir.                 required to administer Miranda warnings
1974) (quoting United States v. Hall, 421            to everyone whom they question. Nor is
F.2d 540, 545 (2d Cir. 1969)).                       the requirement of warnings to be imposed
                                                     simply because . . . the questioned person
   Reinert argues that the interrogation in
                                                     is one whom the police suspect.”) Given
the ambulance was custodial because he
                                                     that Reinert was in the ambulance
was never told that he was free to leave or

                                                11
receiving care for an open wound and had             determined by the Supreme Court.
an oxygen mask covering his face, it seems           Accordingly we will affirm the order of
unlikely that he could or would have left            the District Court on that issue.
the EMTs’ care, even if Zimmerman had
                                                     2. The pre-Miranda statement to Officer
told him that he was at liberty to do so.
                                                                  Zimmerman
Under those circumstances, an explanation
that he was not required to answer                       The statement made to Officer
questions would have no doubt been more              Zimmerman in response to his “what
meaningful and more approp riate.                    happened” question (“I think I killed him,
However, as we explained above, such a               I stabbed him.”) is another matter. At that
statement, while helpful to determine the            point Reinert had made an incriminating
custodial nature of the interrogation, is not        statement, and when the EMT turned him
required to render an interrogation non-             over to Officer Zimmerman, he had to
custodial.                                           know that he was a suspect being
                                                     questioned by a police officer. Prior to
    More to the point, although Officer
                                                     starting his question, Zimmerman should
Zimmerman was present under the
                                                     have, but failed to, read Reinert his
described circumstances, the case of
                                                     Miranda rights. The state trial judge’s
ambulance transportation is oblique to the
                                                     treatment of this matter was premised on a
core of “in custody” jurisprudence where
                                                     misapprehension or misstatement of the
the focus is on the relationship between the
                                                     facts—that Reinert had been Mirandized
officers and the suspect in terms of
                                                     already when, in fact, he had not: “The
putative coercion and freedom to leave. In
                                                     next statement made by the defendant was
our view, the presence of Zimmerman in
                                                     a statement given to Officer Zimmerman
the ambulance was a background factor in
                                                     in the ambulance. Prior to this statement,
terms of Reinert’s statement to Snyder.
                                                     Officer Zimmerman advised the defendant
Reinert had entered the ambulance
                                                     of his Miranda rights, following which the
voluntarily and was in the charge of the
                                                     defendant indicated that he wished to
EMTs who elicited the challenged
                                                     answer questions.” The Commonwealth
statement innocently (they did not know
                                                     now concedes that the judge was mistaken
Reinert to be a criminal suspect) in the
                                                     in stating that Reinert was given Miranda
course of obtaining routine medical
                                                     warnings before the statement to
information. Under these circumstances,
                                                     Zimmerman. We must therefore reject the
and others recited above, we do not think
                                                     state court’s finding with respect to the
that the state trial judge’s determination
                                                     first ambulance statement to Zimmerman.
w a s b as e d o n a n u nreasona ble
                                                         However, “[w]here a subsequent
determination of the facts in light of the
                                                     confession is obtained constitutionally, the
evidence. Nor was the legal conclusion
                                                     a dmission of pri or inad missib le
based thereon contrary to or an
                                                     confessions [is] harmless error.” United
unreasonable application of federal law as
                                                     States v. DeSumma, 272 F.3d 176, 180 (3d

                                                12
Cir. 2001) (quoting United States v.                   intelligently.
Johnson, 816 F.2d 918, 923 (3d Cir.
                                                                        ***
1987)) (first alteration in original).
Because we conclude that Reinert made                  If the interrogation continues
subsequent, constitutionally obtained,                 without the presence of an attorney
admissible statements that mirrored his                and a statement is taken, a heavy
earlier un-M irandized statement, see infra            burden rests on the government to
Parts III.B and III.C, we hold that                    demonstrate that the defendant
admission of the initial statement was                 knowingly and intelligently waived
harmless error, even under the stringent               his pri v i le g e a g ainst self -
constitutional error standard where we                 incrimination and his right to
may affirm only if the error is harmless               retained or appointed counsel.
beyond a reasonable doubt. See United                  Escobedo v. Illinois, 378 U.S. 478,
States v. Molina-Guevara, 96 F.3d 698,                 490, n.14 [(1964)]. This Court has
703 (3d Cir. 1996) (citing Chapman v.                  always set high standards of proof
California, 386 U.S. 18, 24 (1967)).                   for the waiver of constitutional
                                                       rights, Johnson v. Zerbst, 304 U.S.
   B. The Post-Miranda Statement to
                                                       458 (1938), and we reassert these
         Officer Zimmerman
                                                       standards as applied to in-custody
    At this point, Zimmerman read Reinert              interrogation.
his Miranda rights. The issues presented
                                                    Id. at 444, 475 (emphasis added).
by Reinert are twofold. He contends (1)
that he was not physically and mentally                The Court made clear in Moran v.
capable of knowingly, intelligently, and            Burbine, 475 U.S. 412, (1986), the two-
voluntarily waiving his Miranda rights and          pronged test for waiver:
(2) that even if he were, the post-Miranda
                                                       First, the relinquishment of the
statement was not validly obtained in light
                                                       right must have been voluntary in
of his pre-Miranda confession.
                                                       the sense that it was the product of
       1. Competence and waiver                        a free and deliberate choice rather
                                                       than intimidation, coercion, or
    The Supreme Court has frequently
                                                       deception. Second, the waiver
articulated the applicable waiver standard.
                                                       must have been made with a full
In Miranda v. Arizona, 384 U.S. 436
                                                       awareness of both the nature of the
(1966), the Court held as to waiver and
                                                       right being abandoned and the
burden:
                                                       consequences of the decision to
   The defendant may waive                             abandon it. Only if the totality of
   effectuation of these rights,                       the circumstances surrounding the
   provided the waiver is made                         interrogation reveal both an
   v o l u n tarily, k n o w i n g l y a n d           uncoerced choice and the requisite


                                               13
   level of comprehension may a court                that there was no physical or
   properly conclude that the Miranda                psychological coercion in the
   rights have been waived.                          situation, nor in the questioning
                                                     te c hnique use d by Of f ic er
Id. at 421 (internal quotations marks and
                                                     Zimmerman.
citations omitted).
                                                  This finding is clearly supported in the
We have also explained that:
                                                  record. EMT Snyder testified at the
   This inquiry requires us to consider           suppression hearing that Reinert remained
   the totality of the circumstances              “conscious, alert, and oriented throughout
   surrounding the interrogation,                 our transport” and that he was “very much
   which includes examining the                   aware and awake, and knew what was
   events that occurred and the                   going on. I explained every part of the
   background, expe rience, and                   treatment that I was doing for him, and he
   conduct of the defendant. Miranda              understood that fully.” When asked, “And
   rights will be deemed waived only              this was during the entire time when
   whe re the to tality of th e                   Officer Zimmerman was talking to Mr.
   circumstances “reveal[s] both an               Reinert as well?”, Snyder responded,
   uncoerced choice and the requisite             “That’s correct.” In sum, Snyder stated
   level of comprehension.”                       that Reinert answered all questions posed
                                                  to him “ intelligently.”           Officer
United States v. Sriyuth, 98 F.3d 739, 749
                                                  Zimmerman testified that Reinert was
(3d Cir. 1996) (quoting Moran, 475 U.S. at
                                                  “lucid and coherent.”        And Officer
421) (citations omitted).
                                                  Lembach, who was also in the ambulance,
    The state trial judge concluded, after        testified that Reinert was alert and
the suppression hearing, that Reinert’s           coherent, and that his answers to questions
mental and physical states were such that         asked in the ambulance were responsive
he was “conscious, alert and oriented on          and pertinent and did not go off on
three spheres.” She added that:                   tangents.
   [T]he interview by Officer                         As noted above, Reinert had walked to
   Zimmerman w as brief , the                     the ambulance. The record of treatment
   interrogation routine, and the                 administered to him in the ambulance was
   detention basically the result of              unexceptional. Reinert was wearing an
   circumstances created by the                   oxygen mask but that did not impair
   defendant. Clearly there was no                communication. He was receiving IV
   physical threat to the defendant               fluids and was connected to an
   from the police inasmuch as the                electrocardiograph. His vital signs were
   interview took place in the                    monitored. But none of this impaired his
   ambulance in the presence of                   coherence. Supporting this conclusion is
   paramedics. We firmly conclude                 the testimony of Nurse Patricia Lombardo

                                             14
of LVMC who, shortly after Reinert’s                  Drefke, 707 F.2d 978, 983 (8th Cir. 1983)
admission, observed him and administered              (holding efforts to supplement record by
the Glasgow coma test, about which she                affidavits or attachments to brief
discoursed at some length. The short of it            improper)). Reinert counters with the
is that Reinert received the highest                  argument that consideration of these
(Glasgow) score for verbal and motor                  affidavits is necessary to demonstrate the
response, and for being alert and oriented.           ineffectiveness of his trial counsel in not
His respiratory rate, vital signs, etc., were         presenting expert evidence at the
all good. Independently, Nurse Lombardo               suppression hearing.          This “counter”
concluded that Reinert was alert.                     seems inadequate because the affidavits
                                                      are being presented in support of two
    In opposition to this welter of
                                                      different contentions: a merits issue
testimony the state trial judge had only the
                                                      involving Miranda rights and a collateral
testimony of Reinert’s mother and
                                                      issue involving the ineffective assistance
stepfather, which it had the clear right not
                                                      of counsel. Given that these affidavits
to credit, and did not credit. In this appeal,
                                                      were not part of the record before the trial
Reinert relies largely on the affidavits of
                                                      court, Reinert most likely procedurally
two psychiatrists whose affidavits were
                                                      defaulted this line of argument on his
offered at the Pennsylvania Superior Court
                                                      Miranda claims, and should be allowed
level as appendices to his direct appeal
                                                      only to use the affidavits insofar as his
brief. The Superior Court declined to
                                                      claim for ineffectiveness is concerned.
consider these affidavits and none of them
                                                      However, since the affidavits relate both to
were before the trial court. They were also
                                                      the Miranda and ineffectiveness issues,
attached to his federal habeas petition.
                                                      and since we will need to examine the
These psychiatrists, Dr. Lynn Bornfriend
                                                      a f f i d av i t s w h e n w e r e a c h t h e
(“Dr. Bornfriend”) and Dr. Robert Sadoff
                                                      ineffectiveness claims, we will, out of an
(“Dr. Sadoff”), did not examine or witness
                                                      abundance of caution, consider the
Reinert during the time period in which he
                                                      substance of the Sadoff and Bornfriend
was in the hospital or in the ambulance,
                                                      affidavits— both of which conclude that
and relied solely upon the narratives of
                                                      Reinert was not competent physically or
Reinert’s family and friends and excerpts
                                                      mentally to waive Miranda rights or to
from the (subsequent) medical records of
                                                      make statements either in the ambulance or
LVMC.
                                                      post-operatively at the hospital—in terms
    The Commonwealth submits that we                  of the Miranda claims as well.
cannot consider these affidavits which
                                                          Dr. Bornfriend relies on a number of
were not a matter of record and which are
                                                      factors: (1) several nursing entries
presented to the Court merely as
                                                      describing Reinert as confused after his
attachments to a pleading, citing United
                                                      admission to LVMC; (2) lab evidence of
States v. Madkins, 994 F.2d 540, 542-43
                                                      dehydration, blood loss, liver damage and
(8th Cir. 1993) (citing United States v.

                                                 15
an extruding wound (the occasion for the            given Miranda warnings, but admitted the
subsequent surgery); and (3) an increased           written confession. Elstad was convicted,
white blood cell count. Dr. Bornfriend              but the Oregon Court of Appeals reversed,
opines that Reinert was in emotional                holding that the confession should also
shock, largely as the result of having been         have been excluded because of the brief
in the house with a corpse for two days.            p e r i o d s e p a r a t i n g h i s i n i t i a l,
She also makes reference to his recent              unconstitutionally obtained statement and
suicide attempt. Dr. Sadoff relies on: (1)          his subsequent confession. In reversing
Reinert’s mother’s description of his               the Oregon Court of Appeals, the United
confusion; (2) the emotional shock of the           States Supreme Court explained that the
altercation with Sean Brady; and (3)                failure of police to administer Miranda
Reinert’s low blood pressure and fast heart         warnings does not mean that the
rate. We find this counter underwhelming,           statements received have actually been
surely not enough to render the state trial         coerced, but only that courts will presume
judge’s supported findings unreasonable or          the privilege against compulsory
to undermine her conclusions of law under           s e l f -i n c r im i n a t io n h a s n o t b e e n
the AEDPA standard as to the validity of            intelligently exercised. See Elstad, 470
the waiver and the post-Miranda statement           U.S. at 304-11.
in the ambulance.
                                                        The Court held that it was “an
 2. Validity of post-Miranda statement              unwarranted extension of Miranda to hold
                                                    that a simple failure to administer the
    Reinert argues that, even had he been
                                                    warnings, unaccompanied by any actual
competent to waive his Miranda rights in
                                                    coercion or other circumstances calculated
the amb ulanc e, the p ost-Miranda
                                                    to undermine the suspect’s ability to
statement would nevertheless be invalid
                                                    exercise his free will, so taints the
because it followed too quickly on the
                                                    investigatory process that a subsequent
heels of a non-Mirandized confession. To
                                                    voluntary and informed w aiver is
support his contention, Reinert attempts,
                                                    ineffective for some indeterminate period.”
unsuccessfully, to distinguish his case
                                                    Id. at 309. The Court further held that
from Oregon v. Elstad, 470 U.S. 298
                                                    although Miranda “requires that the
(1985). In Elstad, a man suspected of
                                                    unwarned admission must be suppressed,
burglary made an incriminating statement
                                                    the admissibility of any subsequent
in his own home without having been
                                                    sta t e m e n t s h o u ld tur n in t h e se
Mirandized. He was taken to the police
                                                    circumstances solely on whether it is
station, and after he was advised of and
                                                    knowingly and voluntarily made.” Id.
waived his Miranda rights, the suspect
                                                    Absent deliberate coercion or improper
produced a written confession. In his
                                                    tactics in obtaining an unwarned
subsequent prosecution for burglary, the
                                                    statement, a careful and thorough
state trial court excluded from evidence his
                                                    administration of Miranda warnings cures
first statement because he had not been

                                               16
the condition that rendered the unwarned              and second responses to the police
statement inadmissible. See id. at 311-12.            was “speculative and attenuated,”
                                                      id. at 313. Although the Elstad
    Reinert argues that no cure could be
                                                      Cou rt expressed no explicit
made in his case because the police created
                                                      conclusion about either officer’s
coercive circumstances and that other
                                                      state of mind, it is fair to read
independent circumstances, such as the
                                                      Elstad as treating the living room
injury and resulting pain, tainted the
                                                      conversation as a good-faith
investigatory process beyond repair. We
                                                      Miranda mistake, not only open to
disagree. The Supreme Court’s most
                                                      correction by careful warnings
recent pronouncement on this issue
                                                      before systematic questioning in
supports our conclusion. In Missouri v.
                                                      that particular case, but posing no
Seibert, 124 S. Ct. 2601 (2004), a suspect
                                                      threat to warn-first p ractice
was questioned for 30 to 40 minutes and
                                                      generally. See Elstad, [470 U.S.] at
confessed to her role in the crime of
                                                      309 (characterizing the officers’
second-degree murder. She was given a
                                                      omission of Miranda warnings as
20-minute break and was only then
                                                      “a simple failure to administer the
Mirandized. After receiving her Miranda
                                                      warnings, unaccompanied by any
warnings, she signed a waiver and the
                                                      a c t u a l c o e r c io n o r o t h e r
questioning resumed. During the post-
                                                      c ir c umsta nc es calc ula te d to
Miranda questioning, she was confronted
                                                      undermine the suspect’s ability to
with her prewarning statements, and was
                                                      exercise his free will”).
made to repeat the information she had
given before she was Mirandized. In                Id. at 2612.
holding unconstitutional the interrogation
                                                       We are confident that Reinert’s case
technique of intentionally withholding
                                                   more closely resembles Elstad’s than
Miranda rights to obtain a confession and
                                                   Siebert’s. Zimmerman’s initial failure to
of subsequently reading the Miranda rights
                                                   read Reinert his Miranda rights, though
and continuing on with the interrogation,
                                                   unfortunate and unexplained, seems much
the Supreme Court distinguished Seibert
                                                   more likely to have been a simple failure
from Elstad in the following way:
                                                   to administer the warnings rather than an
   Elstad rejected the “cat out of the             intentional withholding that was part of a
   bag” theory that any short, earlier             larger, nefarious plot. While it would have
   admission, obtained in arguably                 been preferable for Zimmerman to read
   innocent neglect of Miranda,                    Reinert his rights immediately before
   determined the character of the                 eliciting the initial response, we conclude
   later, warned confession, Elstad,               that the cure mandated by Elstad was met
   470 U.S. at 311-14; on the facts of             in this case and that, because Reinert’s
   that case, the Court thought any                waiver was knowing and voluntary, the
   causal connection between the first             post-Miranda statement was properly

                                              17
entered into evidence.                                     We have scrutinized the entire LVMC
                                                       record. That record is consistent with the
     C. The Statement at the Hospital
                                                       facts chronicled above, most importantly
    Probably the most incriminating                    that at times relevant Reinert was alert and
statement made by Reinert was that made                oriented. Initially, the surgeon, Dr. Barry
to Detectives Stauffer and Granitz after               Slavin, reported that Reinert woke up
surgery at LVMC. In that statement                     promptly and was awake and alert after
Reinert admitted that he had obtained a                recovery from anesthesia. Morphine for
knife and then went to see Brady, who was              pain was not administered until 10:00
in bed, and stabbed him. We have already               p.m., well after the statement at issue had
recounted the essential history of the                 been made. Reinert was also given
events after Reinert’s admission to the                Robinal, a sedative and muscle relaxant, at
hospital, see supra Part I. We have                    3:30 p.m. and Cefoxitan, an antibiotic, at
amplified that de scription through                    6:30 p.m. The most important witness,
recitation of the state trial judge’s findings,        however, was Dr. Hashemi, the chief
see supra Part II; we will not rescribe that           surgical resident, who had come to LVMC
material here. However, our review of the              afer three years of surgical residence at
record confirms that all the facts stated by           Presbyterian and the University of
Judge McGinley are supported by the                    Pennsylvania Medical Center. As noted
record.                                                above, Dr. Hashemi testified that he had
                                                       performed a post-operative check at 7:30
    As our frame of reference, we reiterate
                                                       p.m. on the defendant, and that he had seen
that surgery (on March 10, 1991) lasted
                                                       that Reinert was awake, coherent, and had
from 1:15 p.m. to 3:45 p.m., and the
                                                       stable vital signs. His chart indicated no
interrogation took place at about 8:00 p.m.
                                                       abnormality with regard to Reinert’s
It was discovered during surgery that one
                                                       ability to answer questions appropriately.
of the knife wounds in Reinert’s abdomen
                                                       This testimony accords with that of the
had also cut his liver. The surgery
                                                       detectives who questioned Reinert after his
consisted of an exploratory laparotomy to
                                                       surgery and said that they found him
examine stab wounds to the abdomen. The
                                                       conscious, oriented, alert, and responsive.
results were essentially negative, except
for a non-bleeding laceration of the left                 Arrayed against this solid phalanx of
lobe of the liver and a large retroperitoneal          evidence is the testimony of Reinert’s
hematoma. There was no evidence of                     mother, stepfather, a friend Cindy
injury to any intraabdominal organ.                    Mellinger, and Reinert’s mother’s pastor,
Because the retroperitoneal hematoma was               Ronald Keller, who saw Reinert after the
stable, nothing was done, and the abdomen              police left. They all described him as
was closed after copious irrigation.                   extremely quiet and soft spoken, kind of
Reinert’s wrist lacerations were then                  “mumbly,” heavily sedated. Reinert also
repaired, and he was taken to the Shock                contends that he was affected by the pre-
Trauma Unit for observation.                           surgical med icine, es pecia lly the

                                                  18
anesthesia, and by the Robinal given at                  IMPRESSIONS: The patient is
3:30 p.m. Additionally, Reinert relies               a 27 year old white male admitted
heavily on appeal on a psychiatric consult           to the Lehigh Valley Hospital
the day after surgery.                               Center on 03/10/91 followed self
                                                     inflicted stab wounds with slashed
   Dr. Joseph Antonowicz, a psychiatrist,
                                                     wrists. He is currently under arrest
reported that:
                                                     on suspicion of having murdered
       The patient tells me that he                  his roommate. The patient has
   remembers essentially nothing of                  essentially no recollection of events
   the events that led to his                        leading to and including these
   hospitalization here. He tells me                 alleged occurrences. At the present
   that the police have informed him                 time he is confused, overwhelmed,
   that they suspect him of having                   frightened and seemed somewhat
   murdered Shawn. He is quite                       disorganized in his thought
   surprised by this. The patient is                 processes.
   very tearful at the loss of Shawn
                                                     Working diagnoses are:
   and seems to genuinely miss him.
   He states that he currently does                     1. Psychogenic amnesia versus
   have suicidal ideation, although he               malingering.
   does not have a plan at this time.
                                                        2. Possible reactive psychosis.
       The patient is an alert,                      I am uncertain about the presence
   cooperative young man who                         of psychosis in this case, although
   appears quite sad. He also appears                he doe s se em inordina te ly
   very befuddled and shows some                     bewildered and disorganized.
   disorganization in his thought
                                                      These pieces of evidence are used by
   process. He tends to be somewhat
                                                  Drs. Bornfriend and Sadoff in their
   rambling and at times is mildly
                                                  affidavits. Dr. Bornfriend writes:
   loosened in his associations. He
   seems quite bewildered by what’s                  Reinert was in the Operating Room
   going on as well as frightened.                   for laparotomy and tendon repair
   There are no hallucinations. There                until around 4:00 in the afternoon.
   do not appear to be delusions                     During surgery, he was given many
   present at this time. However, the                anesthetics, including Fentanyl, a
   patient is somewhat guarded in his                synthetic narcotic, and Robinal, a
   history.     Affect is depressed.                 sedative and muscle relaxant.
   Sensorium: He is oriented times                   Without the above medications, any
   three. Memory: 2 of 3 objects at 5                patient would be in severe pain
   minutes. Similes: Good. Proverbs:                 after such extensive surgery. It
   Quite concrete. Insight: Limited.                 was, therefore, clear that the
   Judgment: Good on formal testing.                 narcotic and sedative and muscle

                                             19
   r e l a x an t e f f e c t s o f th e s e        following surgery.
   medications persisted and remained
                                                        Thus, for all the reasons noted
   during the course of Mr. Reinert’s
                                                    above, it is my opinion, within
   being interviewed by the police and
                                                    reasonable medical and psychiatric
   that when these medications wore
                                                    certainty, that at the time of the
   off, Mr. Reinert was in severe pain
                                                    taking of the statement of Scot
   and required 4 mgs. of morphine.
                                                    Reinert, he was not at his clearest
   In addition, the fact that a physician
                                                    thinking and was under the
   told police officers that Mr.
                                                    influence of the shock of the loss of
   Reinert’s health would not be
                                                    his lover, the shock of his own
   threatened by their questioning him
                                                    wounds and recently emerging
   does not imply that he was
                                                    from general anesthesia with
   cognitively and mentally clear
                                                    abdominal surgery and that his will
   enough for them to do so.
                                                    and strength and clarity of mind
Dr. Sadoff recapitulates the traumatic              were all impaired. It is more likely
events preceding the stabbing, the                  than not that at the time he was
impressions of Dr. Antonowicz, the reports          interrogated by the police and given
of the family members who saw Reinert               his Miranda rights, his emotional
after the surgery, and the LVMC records.            state was so impaired that he would
He concludes:                                       not have been able to resist
                                                    effectively the demands of the
       One is usually in a fairly
                                                    police at the time or the requests of
   confused state of mind following
                                                    the police. It would seem that his
   surgery with general anesthesia,
                                                    statement would not be totally
   and is not thinking as clearly
                                                    voluntary, as he may choose, when
   usually, as one does after several
                                                    in a clearer state of mind, to resist
   days. Scot had just been through a
                                                    giving such a statement, especially
   serious altercation with his lover,
                                                    under the advice of his attorney, if
   had lost his lover by death and had
                                                    he had been allowed to see his
   been in a state of shock himself
                                                    attorney prior to the interrogation.
   following loss of large quantities of
   blood due to self-inflicted and other                 The note of Dr. Antonowicz, the
   wounds to his wrists and his                     psychiatrist who examined him in
   abdomen. He appeared confused to                 consultation one day after he was
   his mother on the telephone and                  admitted and then three days later,
   also when she visited him at his                 indicated a clearing of his
   residence shortly thereafter. He                 s e n s o r i u m o n t h e s e co n d
   also appeared less than clear to his             examination. This implies that his
   mother, stepfather, pastor and                   first examination showed Scot to be
   female friend while in the hospital              less than clear, and that was one


                                               20
   day after his admission or one day                   with those of Judge McGinley, see supra
   after the interrogation. . . .                       Part II, which are entitled to deference.
                                                        See Sumner v. Mata, 449 U.S. 539 (1981).4
       Thus, it is for all these reasons
   that it is my opinion, within
   reasonable medical certainty, that at                  4
                                                            Reinert urges us to follow the
   the time of the taking of the                        example of the Supreme Courts of
   statement by the police, Scot                        Minnesota and Alaska and rule that, in
   Reinert was in such a weakened                       the absence of an electronic record of the
   state of emotional condition                         custodial interrogation in the hospital (by
   following the shock to his system                    either audiotape or videotape), we should
   from the death of his lover, the                     suppress the confession as a violation of
   wounds that he had to his own                        the Fifth Amendment, Sixth Amendment,
   body, the medication that he was                     protections of due process, protection
   under, the loss of blood, the                        against self-incrimination, and provisions
   surgical procedure under general                     for effective assistance of counsel and
   anesthesia, that his mental state was                confrontation. See State v. Scales, 518
   not clear enough for him to be                       N.W.2d 587 (Minn. 1994) (holding that
   competent to waive his Miranda                       custodial interrogations must be recorded
   warnings or to give a truly                          where feasible); Stephan v. State, 711
   voluntary statement.                                 P.2d 1156 (Alaska 1985) (holding that
    We      find     these      a rg u m e n t s        non-recorded statements made during the
underwhelming, and conclude that they do                course of a custodial interrogation should
not even come close to rendering the state              be suppressed because they were
trial judge’s findings of fact unreasonable             obtained in violation of the Due Process
under the totality of the record, or in any             Clause of the Alaska Constitution).
way undermine her conclusions of law                    While the advocated policy may be a
under the AEDPA standard.                 The           desirable one, Reinert can point to no
Bornfriend and Sadoff affidavits are                    Pennsylvania law supporting it; indeed
extremely generalized and conclusory and,               there is none. Even if there were such a
at all events, do not counter the                       rule announced in Pennsylvania, we, as a
considerable evidence of Reinert’s                      federal court sitting in habeas
competence to waive his Miranda rights                  jurisdiction, would not have the authority
and to make a statement which was                       to review a violation of the state
credited by the suppression judge, to                   constitution. It therefore goes without
whose findings heavy deference is owed                  saying that, given that there is no right to
under AEDPA. Indeed, they also rely on                  recorded custodial interrogations under
statements that the judge discredited.                  Pennsylvania law, we are certainly not at
Additionally, we note that the Superior                 liberty to create one. Insofar as Reinert
Court also made findings of fact consonant              invokes the Fifth and Sixth Amendments
                                                        of the Federal Constitution, he invokes a

                                                   21
                                                     and medical staff: “We conclude that trial
                                                     counsel was not ineffective for failing to
    IV. The Ineffective Assistance of
                                                     call medical experts at the suppression
            Counsel Claims
                                                     hearing.” Indeed, the state court followed
A. Failure of State Trial Counsel to Call            the relevant Pennsylvania authority for the
   a Medical Expert to Testify at the                proposition that trial counsel need not
  Suppression Hearing as to Reinert’s                introduce expert testimony on his client’s
Alleged Mental and Physical Inability to             behalf if he is able effectively to cross-
 Voluntarily and Knowingly Waive His                 examine prosecution witnesses and elicit
            Miranda Rights                           helpful testimony. See Commonwealth v.
                                                     Williams, 640 A.2d 1251, 1265 (Pa. 1994).
    Reinert claims that his trial counsel
                                                     Trial counsel was surely able to do so here.
was ineffective for failing to call an expert
medical or psychiatric witness to testify                The Superior Court’s rejection, under
about his physical and mental condition at           Williams, of Reinert’s claim that his trial
the time he waived his Miranda rights. In            counsel was ineffective for failing to call
order successfully to claim ineffective              an expert witness with respect to his
assistance of counsel, Reinert must                  mental and physical condition was not an
establish both that his attorney’s                   unreasonable application of the standards
performance was objectively unreasonable             set forth in Strickland in light of the
and that, but for the deficient performance,         evidence from police officers and medical
there would have been a reasonable                   personnel that Reinert’s waiver of his
probability of a different outcome. See              Miranda rights was knowing and
Strickland v. Washington, 466 U.S. 668               voluntary. Reinert’s claim must therefore
(1984). Reinert can make neither showing             fail. Furthermore, we reject the notion,
here. After reviewing the record, the                advanced at oral argument, that Reinert
Superior Court found that trial counsel              should be entitled to an ineffective
thoroug hly cross-examined all the                   assistance of counsel hearing at this
Commonwealth’s witnesses regarding                   juncture. Given the well developed record
Reinert’s mental and physical state at the           in this case and our analysis of it above,
time he was given his Miranda warnings               we do not see what more useful
and when he made statements to the police            information could be elicited at this time.
                                                        B. Failure to Inform Reinert of His
                                                        Right to Testify at the Suppression
purported federal right to have a                                     Hearing
custodial interrogation recorded. He
does not, however, cite any authority for               Reinert contends that his state trial
this proposition; again there is none. We            counsel was ineffective for not informing
will, at this juncture, decline to infer a           him of his right to testify at the
federal right to have custodial                      suppression hearing. At the suppression
interrogations recorded.                             hearing Reinert’s counsel called his

                                                22
mother, stepfather, a female friend, and his
mother’s pastor to testify about his
physical condition post-surgery and prior            might have been risky to his defense.
to his statement to the officers. Reinert’s          Reinert testified extensively at trial about
mother and stepfather also testified to              the entire incident leading up to and
Reinert’s condition prior to his transport to        following the death of Sean Brady. By
the hospital (and prior to his initial               taking the stand at the suppression
statement).     Additionally the medical             hearing, Reinert may have been
records of LVMC were before the                      providing the Commonwealth with the
suppression court. The suppression court             means to impeach his testimony. In
thus had before it a considerable amount of          United States v. Salvucci, 448 U.S. 83,
evidence supporting Reinert’s position that          93-94 (1980), the Supreme Court
he was not competent to give a statement             reserved the question whether Simmons
or to waive Miranda rights. We do not see            v. United States, 390 U.S. 377 (1968),
that Reinert’s testimony would have added            precludes the use of a defendant’s
anything to the mix in his favor, and, as            testimony at a suppression hearing to
the Pennsylvania Superior Court observed,            impeach his testimony at trial. The Court
Reinert failed to state with any specificity         noted, however, that a number of courts
what his testimony would have been                   considering the question had held that
and/or how his testimony would have                  such testimony is admissible as evidence
altered the outcome of the hearing. The              of impeachment. Id. at 94 & n.8 (citing
Superior Court concluded that Reinert had            Gray v. State, 403 A.2d 853, 858 (Md.
failed to establish that his claim had               Ct. Spec. App. 1979) (noting that nothing
arguable merit, that his counsel’s actions           in Simmons precludes use of defendant’s
were unreasonable, or that he suffered               testimony at suppression hearing for
prejudice. In our view, the District Court           purpose of impeachment at trial); People
correctly concluded that the state court’s           v. Sturgis, 317 N.E.2d 545, 547-48 (Ill.
resolution of this claim was not objectively         1974) (same); People v. Douglas, 136
unreasonable. The Superior Court also                Cal. Rptr. 358, 363 (Cal. Ct. App. 1977)
found that Reinert had failed to show that           (holding that defendant’s testimony at
he was prejudiced by the failure of counsel          suppression hearing was admissible for
to inform him of his right to testify at the         impeachment purposes because
suppression hearing, i.e., that there was a          defendant took the stand in his trial and
reasonable probability that, but for                 testified in a manner inconsistent with his
counsel’s alleged error, the result of the           pretrial testimony)). Were we to adopt a
proceeding would have been different. 5              similar interpretation of Simmons and
                                                     conclude that suppression testimony was
                                                     fair game for impeachment purposes, the
  5
   While we need not decide whether                  action of putting Reinert on the stand
counsel’s performance was deficient, it is           during the suppression hearing could
worth noting that Reinert’s testimony                have itself potentially become subject to

                                                23
    Finally, we consider the affidavit              of clearly established federal law as
submitted by Reinert’s trial attorney Diane         determined by the United States Supreme
Dickson.     In our view, the Dickson               Court.
affidavit, which constitutes a conclusory
                                                        We will therefore affirm the order of
concession of ineffectiveness by trial
                                                    the District Court denying the petition.
counsel, does not mitigate the propriety of
the actions taken during the time of trial,
and does not affect the outcome.


              V. Conclusion
    In light of our extensive review of the
record before us, we conclude that the
state trial court’s decision to deny
Reinert’s motion to su ppress the
statements at issue was not an
unreasonable determination of the facts in
light of the evidence presented in the state
court proceedings, and that it was neither
contrary to nor an unreasonable
application of clearly established federal
law as determined by the United States
Supreme Court. To the extent that the
state trial court’s finding on the one pre-
Miranda statement made to Officer
Zimmerman was in fact unreasonable in
light of the evidence presented before it,
the statement should have been
suppressed. However, the admission of
duplicative statements was proper, and the
error was therefore harmless.
   As for Reinert’s claims of ineffective
assistance of counsel, he has failed to
demonstrate that he was prejudiced by his
counsel’s performance, and the state
court’s conclusions on the issue were not
contrary to or an unreasonable application


an allegation of ineffectiveness.

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