                          [J-48-2013] [MO: Castille, C.J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT


COMMONWEALTH OF PENNSYLVANIA, :               No. 99 MAP 2012
                              :
               Appellant      :               Appeal from the Order of Superior Court
                              :               entered March 1, 2012 at No. 646 MDA
                              :               2011 which Reversed and Remanded the
         v.                   :               PCRA Order of the Dauphin County Court
                              :               of Common Pleas, Criminal Division,
                              :               entered December 27, 2006 at No.
ELTON EUGENE HILL,            :               CP-22-CR-0001407-1998.
                              :
               Appellee       :               SUBMITTED: May 3, 2013


                                CONCURRING OPINION


MR. JUSTICE EAKIN                                      DECIDED: November 21, 2014
      I agree with the majority’s well-reasoned opinion, but would remand to the

Superior Court only appellee’s claim regarding the April 21st statement. Our review of a

court’s ruling on a PCRA petition is “limited to whether the findings of the PCRA court are

supported by the record and are free from legal error.” Commonwealth v. Miller, 888

A.2d 624, 629 (Pa. 2005) (citation omitted). Finding such support and no error, I would

affirm the PCRA court as to appellee’s post-polygraph statement.

      As the majority points out, counsel’s conduct must be analyzed under the

governing law at the time of the trial. Although the Superior Court applied the factors in

United States v. Leon-Delfis, 203 F.3d 103 (1st Cir. 2000), that case was decided after

appellee’s 1998 trial. However, the cases it analyzed to reach the four-prong test it

applied had been decided before 1998: Wyrick v. Fields, 459 U.S. 42 (1982) (per curiam);

United States v. Johnson, 816 F.2d 918 (3d Cir. 1987); United States v. Gillyard, 726 F.2d

1426 (9th Cir. 1984); and United States v. Eagle Elk, 711 F.2d 80 (8th Cir. 1983).
        In Wyrick, the United States Supreme Court rejected as “illogical” the Eighth

Circuit’s rule requiring a separate set of Miranda1 warnings after a polygraph examination

to revive a valid waiver of Fifth Amendment rights. The Supreme Court found the

defendant’s pre-polygraph waiver continued through post-test questioning “unless the

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

he no longer was making a ‘knowing and intelligent relinquishment or abandonment’ of

his rights.” Wyrick, at 47 (citation omitted). The Court made clear the totality of the

circumstances must be analyzed and found the circumstances clearly showed the

defendant waived his Fifth Amendment rights as to post-polygraph questioning. The

Court observed the defendant himself requested the polygraph test with the benefit of

counsel and he was questioned post-examination by the same person who conducted the

test. Under these facts, the Court concluded the Eighth Circuit’s holding amounted to a

rule that:
        [N]otwithstanding a voluntary, knowing, and intelligent waiver of the right to
        have counsel present at a polygraph examination, and notwithstanding
        clear evidence that the suspect understood that right and was aware of his
        power to stop questioning at any time or to speak to an attorney at any time,
        the police again must advise the suspect of his rights before questioning
        him at the same interrogation about the results of the polygraph.
Id., at 48. The Court opined “the questions put to [the defendant] after the examination

would not have caused him to forget the rights of which he had been advised and which

he had understood moments before.” Id., at 49. Accordingly, it reversed the decision of

the Eighth Circuit and remanded to that court. Id. The Court declined to address




1   Miranda v. Arizona, 384 U.S. 436 (1966).




                             [J-48-2013] [MO: Castille, C.J.] - 2
whether the defendant’s Sixth Amendment rights were violated2 because the Eighth

Circuit rested its decision solely on the Fifth Amendment.

       Six years later, the High Court expressly rejected the argument that Sixth

Amendment waivers are subject to greater scrutiny than Fifth Amendment waivers,

stating “we have never suggested that one right is ‘superior’ or ‘greater’ than the other,

nor is there any support in our cases for the notion that because a Sixth Amendment right

may be involved, it is more difficult to waive than the Fifth Amendment counterpart.”

Patterson v. Illinois, 487 U.S. 285, 297-98 (1988). Observing counsel’s “relatively simple

and limited” role during post-charge questioning, as compared to trial, the Court held “[s]o

long as the accused is made aware of the ‘dangers and disadvantages of

self-representation’ during postindictment questioning, by use of the Miranda warnings,

his waiver of his Sixth Amendment right to counsel at such questioning is ‘knowing and

intelligent.’” Id., at 300. Thus, notwithstanding Wyrick’s Fifth Amendment roots, the

decision applies with equal force to appellee’s Sixth Amendment claim.

       Here, as in Wyrick, there is “clear evidence” appellee fully understood his rights

and expressly waived them prior to the interrogation.3 Appellee, like the defendant in

Wyrick, had the assistance of counsel when he completed a written pre-test waiver,4

2 On remand, the Eighth Circuit concluded they were not. Fields v. Wyrick, 706 F.2d
879, 881-82 (8th Cir. 1983).

3 The significance of who requested the polygraph has “essentially been negated” by the
High Court’s decision in Montejo v. Louisiana, 556 U.S. 778 (2009).                      See
Commonwealth v. Hill, 42 A.3d 1085, 1095 n.9 (Pa. Super. 2012). Likewise, who
initiated the questioning has been found irrelevant, as the Superior Court itself points out.

4 The Superior Court conceded appellee, like the defendants in Wyrick and Eagle Elk,
had the aid of counsel during the pre-polygraph process, but noted appellee’s counsel did
not have a second discussion with him between the end of the examination and the
beginning of the post-test interview. However, neither Wyrick nor Eagle Elk involved
such a discussion, and the Superior Court cited no authority suggesting its absence
(continuedI)

                            [J-48-2013] [MO: Castille, C.J.] - 3
which is memorialized in the trial transcript. Moreover, Detective Kelly testified that

before conducting the post-polygraph interview, he confirmed with appellee that he was

aware of his rights, N.T. Trial, 11/18/98, at 324; appellee admitted he understood he had

the right to discontinue the post-test questioning at any time, see N.T. Trial, 11/19/98, at

608-09.    Although the continuity between the polygraph examination and the

post-polygraph interview was not as seamless as merely “turning off the machine,” the

evidence shows that only 15 minutes after appellee finished the examination and

provided his second written statement, Detective Kelly returned with Detective Steenson,

the polygraph examiner, and questioned appellee regarding the post-test statement.

There simply was no new significant change in circumstances such as might invalidate

his previous waiver.

       In rejecting the PCRA court’s ruling, the Superior Court emphasized the absence

of evidence that appellee’s waiver expressly applied to post-polygraph questioning, or

that he was informed of the possibility of such questioning. Neither of these factors was

present in Wyrick, and the court’s reliance on them contradicts Wyrick. Further, the

conceptual tactic of segmenting the post-Miranda process — pre-test, test, post-test — is

a tempting approach, but misleading for the purpose of analyzing police-suspect

interaction. Where the contact is ongoing, absent a relevant change in the dynamic

between the parties, a general waiver continues in force until there is a change of

circumstances not remotely present here.




(Icontinued)
should weigh against the continued vitality of a valid waiver. Indeed, we are offered no
authority that the end of the test somehow initiates a new interface between police and
citizen requiring reiteration of warnings already given and understood. The two cited
circuit court cases holding a pre-polygraph waiver did not extend to post-polygraph
questioning, Johnson and Gillyard, involved defendants who had no representation at all.



                            [J-48-2013] [MO: Castille, C.J.] - 4
       A general unrestricted waiver is just that — unrestricted. Had appellee or counsel

wanted the waiver to be limited, preclusive of post-test questioning, this could easily and

effectively have been accomplished — in reality, such restrictions are common, but no

such limitation was expressed or implied here. Looking to the absence of an affirmative

segment-specific waiver is not the proper analysis — a waiver is not negated by the lack

of enumerated situations to which it might apply.           The absence of conditions or

limitations on the unqualified waiver shows the waiver was broad, and that it continued in

effect, not that it somehow died for lack of specificity.

       That said, many courts have looked to whether the waiver, by its terms, applies to

post-polygraph questioning.5 Indeed, where a defendant has effectuated a valid waiver

using a form that contained such specific language, the waiver would clearly extend to

post-polygraph questioning. However, the significance the Superior Court attributed to

the absence of this evidence ignores the fact the Wyrick Court found irrelevant the Eighth

Circuit’s assertion that “there was no indication that [the defendant] or his lawyer

anticipated that [the defendant] would be asked questions after the examination[,]” noting


5  In Gillyard, the Ninth Circuit noted the verbal warning given in Wyrick provided: “‘If you
are now going to discuss the offense under investigation, which is rape, with or without a
lawyer present, you have a right to stop answering questions at any time or speak to a
lawyer before answering further, even if you sign a waiver certificate.’” Gillyard, at 1429
(emphasis omitted) (quoting Wyrick, at 44). The court stated: “The Wyrick warning made
it clear to the defendant that he was not merely taking a polygraph examination but was
going to be asked questions about a specific offense under investigation.” Id. Three
years later, the court in Johnson cited Gillyard for the proposition that “whether the waiver
form initially presented to the suspect clearly indicates that post-examination questioning
is a possibility” was “among the most significant circumstances to be considered[,]”
Johnson, at 922 n.4 (citing Gillyard, at 1429), and other courts later followed suit.
However, the Wyrick waiver did not “clearly indicate[] that post-examination questioning
[was] a possibility.” Id. (citation omitted). In fact, the only thing the language cited in
Gillyard added to the standard Miranda warning was that it named a specific topic of
questioning, namely, rape.



                             [J-48-2013] [MO: Castille, C.J.] - 5
“it would have been unreasonable for [the defendant] and his attorneys to assume that

[he] would not be informed of the polygraph readings and asked to explain any

unfavorable result.” Wyrick, at 47.6

       Moreover, in describing counsel’s purported failure to advise appellee of the

possibility of a post-polygraph interview, the Superior Court appears to have misread the

notes of testimony. Specifically, the court stated trial counsel testified that, as to the

polygraph, he “merely advised [appellee] that he was going to take a polygraph

examination and that he should tell the truth[,]” advice that the court opined was

“understandable[ because counsel] testified that he had no idea that Detective Kelly

would initiate a new interrogation after the polygraph examination by Detective Steenson

had been completed.”       Hill, at 1096 (citations omitted).      Contrary to the court’s

assertions, trial counsel testified he discussed the polygraph test “at length” with appellee

and in his 40 years of experience as both a defense attorney and a prosecutor, a

post-polygraph interview was “always” conducted after the actual polygraph examination.

N.T. PCRA Hearing, 4/25/06, at 49-50.7

6 This statement also contravenes the Superior Court’s interesting suggestion that “in
drafting the questions to be asked during the polygraph examination[, counsel]
established the scope of [appellee]’s waiver of his right to counsel during the polygraph
examination.” Hill, at 1096. Following the remand in Wyrick, the defendant argued he
did not waive his Sixth Amendment right to counsel because his counsel and law
enforcement agreed the waiver was limited to the polygraph examination, citing counsel’s
suppression hearing testimony to that effect. Fields, at 881. The Eighth Circuit,
however, appropriately concluded the Supreme Court had already rejected the
defendant’s claim.

7 The Superior Court also stated counsel “understood that a polygraph test sometimes
includes both pre-polygraph and post-polygraph interviews.” Hill, at 1096 (emphasis
added) (citing N.T. PCRA Hearing, 4/25/06, at 49). To the contrary, the record reveals
that when trial counsel was asked if “[o]ftentimes, there is a post-polygraph interview in
which the results are discussed I with the person interviewed[,]” counsel went further,
stating, “In fact, that is always the case.” N.T. PCRA Hearing, 4/25/06, at 49-50
(continuedI)

                            [J-48-2013] [MO: Castille, C.J.] - 6
       While counsel testified he “didn’t believe there was going to be any questioning,

other than the tester himself[,]” he also stated “in many cases, it is someone else from the

department, as well.”    Id., at 51-52.    This waiver was not specifically restricted to

questions from one particular officer — Miranda warnings are meant to advise an

accused and are not officer-specific, nor can waivers of rights be circumscribed after the

fact. Justice Saylor is correct that the waiver form, as read by Detective Steenson at

trial, did ask appellee if he consented to talk “with me,” “me” being Detective Steenson; on

the surface, this could be interpreted to limit the waiver to questions by the polygraph

examiner, but there is no evidence at all nor circumstantial reason to believe that such a

precise limitation was contemplated by the parties in this case. In my view, unless

explicit enumerations of the sort appellee would have are made part of the waiver, the

waiver covers exactly what the warnings tell him: anything you say can and will be used

against you.

       Even if the original waiver were restricted as appellee would now have it, appellee

subsequently waived his rights regarding the questioning by Detective Kelly.8 It is well

established that a defendant need not expressly waive his right to remain silent or his right

to counsel in order to effectuate a valid waiver. Just as “magic words” are not necessary


(Icontinued)
(emphasis added). This is not an insignificant difference; under the Superior Court’s
analysis, it bears on the credibility of appellee’s assertion that when he executed the
waiver, he was oblivious to the possibility of a post-polygraph interview. In this, the
Superior Court gilded its reasoning, as “always” is quite different than “sometimes.”

8  While Justice Saylor is correct that appellee’s invocation of his right to counsel
prohibited police-initiated interrogation in counsel’s absence, in my view, appellee clearly
initiated the contact — which, as noted above, was one continuous interaction with law
enforcement — by volunteering, with the assistance of counsel, to take a polygraph test
— he “evinced a willingness and a desire for a generalized discussion about the
investigation[,]” see Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983).



                            [J-48-2013] [MO: Castille, C.J.] - 7
to invoke one’s right to counsel, neither are they necessary to waive that right. “The

question is not one of form, but rather whether the defendant in fact knowingly and

voluntarily waived the rights delineated in the Miranda case.” North Carolina v. Butler,

441 U.S. 369, 373 (1979). Before the post-polygraph interview, appellee had reviewed

his constitutional rights with both his attorney and Detective Steenson. At trial, Detective

Kelly stated, “When I sat down, I indicated to [appellee] that I was aware he had his

Miranda rights and he was aware of his Miranda rights. He indicated that he was, and I

conducted the interview at that point.” N.T. Trial, 11/18/98, at 324.9 Appellee then

proceeded to answer Detective Kelly’s questions, and at no point did he indicate he

wanted the questioning to cease. This Court has, on multiple occasions, found waiver in

similar circumstances. See Commonwealth v. Bomar, 826 A.2d 831, 843-44 (Pa. 2003)

(finding waiver where defendant twice indicated he understood rights and answered

officers’ questions); Commonwealth v. Hughes, 639 A.2d 763, 770 (Pa. 1994) (finding

waiver where defendant indicated he understood after each right was read to him and

answered officers’ questions).

       To succeed on his PCRA petition, appellee had the burden to prove by a

preponderance of the evidence that his Sixth Amendment claim had arguable merit,

which he failed to do. Wyrick requires that in evaluating the scope of pre-polygraph

waivers, a court must consider the totality of the circumstances, which here, based on the

credible record evidence, shows appellee: (1) had the assistance of counsel, who knew

the polygraph examination would “always” include a post-test interview; (2) discussed the

examination with counsel “at length”; (3) executed a valid waiver, which informed him he

had the right to cease questioning at any time; (4) knew he could stop the post-polygraph


9 That appellee was, in fact, aware of his rights is beyond dispute — he admitted as much
under oath.



                            [J-48-2013] [MO: Castille, C.J.] - 8
questioning at any time; and (5) never invoked his right to counsel throughout this

process. Moreover, by acknowledging he understood his rights, answering Detective

Kelly’s questions, and failing to indicate a desire to stop or consult with his attorney,

appellee effectuated a separate waiver as to the detective’s post-polygraph questioning.

      “Counsel cannot be deemed ineffective for failing to raise a meritless claim[,]”

Commonwealth v. Weiss, 81 A.3d 767, 783 (Pa. 2013) (citation omitted), and under these

circumstances, any claim that appellee did not knowingly and intelligently waive his Sixth

Amendment rights by answering the detectives’ post-polygraph questions would have

been just that. Accordingly, I would hold the PCRA court correctly dismissed appellee’s

PCRA petition with regard to his post-polygraph statement and remand to the Superior

Court to address his remaining claim.




                           [J-48-2013] [MO: Castille, C.J.] - 9
