J-S59023-11

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellee              :
                                          :
            v.                            :
                                          :
ELTON EUGENE HILL,                        :
                                          :
                    Appellant             :   No. 646 MDA 2011

                 Appeal from the PCRA Order December 27, 2006,
                     Court of Common Pleas, Dauphin County,
                 Criminal Division at No. CP-22-CR-0001407-1998

BEFORE: PANELLA, DONOHUE and ALLEN, JJ.

MEMORANDUM BY DONOHUE, J.:                             FILED JULY 10, 2015

      Appellant, Elton Eugene Hill (“Hill”), appeals the order dated December

27, 2006 denying his petition for relief pursuant to the Post Conviction Relief

Act, 42 Pa.C.S.A. § 9541 et seq. (“PCRA”). Pursuant to an opinion issued on

November 21, 2014, the Supreme Court reversed this Court’s previous

decision. Commonwealth v. Hill, 104 A.3d 1220 (Pa. 2014). On remand,

we affirm the trial court’s order.

      In our prior decision, we set forth the following relevant factual and

procedural history of this case:

            In the early morning of April 8, 1998, intruders
            broke into the home of Mark and Kim Davis and
            threatened the Davis’ young children with a baseball
            bat. One of the intruders, James Purcell (“Purcell”)
            raped Ms. Davis. Mr. Davis was able to subdue
            Purcell and call the police. He left his teenage son to
            guard Purcell while he ran outside to pursue Hill, age
            17 at the time, whom he saw sitting in a car at the
J-S59023-11


          bottom of his driveway. Mr. Davis followed Hill in an
          attempt to get a license plate number, but Hill
          turned his car around and attempted to run Mr.
          Davis off the road.

          On April 21, 1998, detectives from the Derry
          Township Police Department, including Detective
          Daniel Kelly (“Detective Kelly”), arrived at Hill’s
          parents’ home where Hill resided. Detective Kelly
          asked Hill to meet him at the police station. Upon
          his arrival at the police station, the police escorted
          Hill to an interrogation room to await the arrival of
          his parents. When they arrived and joined Hill,
          Detective Kelly read a form containing his Miranda1
          rights and gave Hill and his parents a chance to
          consult privately. Detective Kelly then presented
          them with a two-part form, the top part entitled
          “Constitutional Rights (Adults)” and the bottom
          “Waiver of Rights Miranda Warnings.” Hill’s parents
          signed the top part of the form but not the bottom
          part, and Hill did not sign either part. Detective
          Kelly testified, however, that both Hill and his
          parents verbally agreed to consent to an interview
          without the presence of an attorney. N.T., 4/25/06,
          at 106. At the conclusion of the interview, Detective
          Kelly arrested Hill, and three days later (on April 24,
          1998), the       Commonwealth      filed   a criminal
          information charging Hill with various criminal
          offenses.2 Hill’s parents then retained an attorney,
          Herbert Goldstein (“Attorney Goldstein”).

          On April 25, 1998, Hill was transported from county
          prison back to the police station. Attorney Goldstein
          met with Hill and advised him that he was about to
          be taken downstairs for a polygraph examination and
          that he should tell the truth.3 Attorney Goldstein, a
          representative of the district attorney’s office, and
          Detective Joseph Steenson (“Detective Steenson”),
          the polygraph examiner, met to determine and agree
          on the questions to be asked during the polygraph
          examination.     At the outset of the polygraph
          examination, with Detective Kelly present (but
          without Attorney Goldstein), Detective Steenson read



                                   -2-
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          Hill a form that contained a recitation of his Miranda
          rights, which Hill then initialed and signed. That
          form, however, has apparently been lost and is not
          part of the certified record on appeal. Detective
          Kelly soon left the room and the polygraph
          examination proceeded to conclusion.           Attorney
          Goldstein sat outside the examination room for some
          period of time, but went back to his office prior to
          the completion of the polygraph examination and did
          not return.

          At the conclusion of the polygraph examination,
          Detective Steenson asked and received a short
          written statement from Hill. After a break, Detective
          Kelly re-entered and Detective Steenson left, at
          which time Detective Kelly proceeded to interrogate
          Hill. Detective Kelly did not ask questions from
          those approved by Attorney Goldstein prior to the
          polygraph test, but rather testified that his
          interrogation involved a comparison between Hill’s
          answers during the polygraph test with those made
          during the prior April 21, 1998 interrogation with his
          parents present. Id. at 122. At trial, Detective Kelly
          testified that Hill began to cry uncontrollably, made
          incriminating statements, and drew diagrams of the
          crime scene. N.T., 11/18/98, at 283 ff., 297-98.

          On November 20, 1998, a jury found Hill guilty of
          the above-referenced crimes. On March 15, 1999,
          the trial court sentenced Hill to serve an aggregate
          term of not less than 186 months and not more than
          1008 months of incarceration in a state correctional
          institution. On March 7, 2001, this Court affirmed
          Hill’s judgment of sentence, and on November 7,
          2001, our Supreme Court denied Hill’s petition for
          allowance of appeal.

          On May 29, 2002, Hill filed a pro se PCRA petition.
          In February 2003, appointed counsel filed a petition
          to withdraw. On January 29, 2004, the PCRA court
          dismissed Hill’s pro se PCRA petition, but after an
          appeal by Hill’s privately retained counsel, on April 7,
          2005, this Court vacated the PCRA court’s dismissal



                                   -3-
J-S59023-11


          of Hill’s pro se PCRA petition.4 On April 25, 2006 and
          July 27, 2006, the PCRA court held evidentiary
          hearings, and on December 27, 2006 the PCRA court
          again dismissed Hill’s PCRA petition. On February 9,
          2007, Hill’s counsel filed a statement of matters
          complained of on appeal, but failed to docket an
          appeal. On November 15, 2010, Hill filed a new pro
          se PCRA petition seeking reinstatement of his
          appellate rights nunc pro tunc. On November 22,
          2010, the PCRA court appointed Hill new counsel,
          and on March 23, 2011, reinstated Hill’s right to file
          an appeal to the December 2006 dismissal of his
          PCRA petition.


          1
              Miranda v. Arizona, 384 U.S. 436 (1966).
          2
             These charges included burglary, 18 Pa.C.S.A. §
          3502, aggravated assault, 18 Pa.C.S.A. § 2702,
          simple assault, 18 Pa.C.S.A. § 2701, possession of
          an instrument of crime, 18 Pa.C.S.A. § 907,
          possession of a prohibited weapon, 18 Pa.C.S.A. §
          908, criminal conspiracy, 18 Pa.C.S.A. § 903, and
          recklessly endangering another person, 18 Pa.C.S.A.
          § 2705.
          3
             Attorney Goldstein testified that he indicated to Hill
          that “this is a lie detector test and you take the test
          and you tell the truth.” Id. at 17. Hill similarly
          testified that Attorney Goldstein’s “exact words were
          ‘Just tell the truth and you will be fine.           Go
          downstairs with the officer and I’ll see you later.”
          Id. at 71.
          4
             Of relevance to the present appeal, in response to
          Hill’s claim that his constitutional rights to counsel
          had been violated, we indicated that “the state of the
          record has not been developed sufficiently” and that
          “[Hill] must be afforded the opportunity to fully
          develop this claim with the assistance of counsel.”
          Commonwealth v. Hill, No. 349 MDA 2004 (Pa.
          Super. April 7, 2005) (unpublished memorandum).




                                    -4-
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Commonwealth v. Hill, 42 A.3d 1085 (Pa. Super. 2012), reversed, 104

A.3d 1220 (Pa. 2014).

      On March 1, 2012, this Court reversed the trial court’s order denying

Hill’s requested PCRA relief, id., but on November 21, 2014, our Supreme

Court reversed and remanded this case for further consideration in

accordance with its decision. Commonwealth v. Hill, 104 A.3d 1220 (Pa.

2014).     On remand, we again consider the two issues raised by Hill on

appeal:

      1.     Whether [Hill] was deprived of his constitutional
             right to effective assistance of counsel when his trial
             counsel failed to file a motion to suppress [Hill’s]
             statement on 21 April 1998 as a violation of
             Miranda and its progeny.

      2.     Whether [Hill] was deprived of his constitutional
             right to effective assistance of counsel when his trial
             attorney abandoned [Hill] at a critical stage in the
             proceedings and when trial counsel failed to file a
             motion to suppress [Hill’s] post-polygraph statement
             on 25 April 1998 as a violation of [Hill’s] right to
             counsel under the Sixth Amendment to the United
             States Constitution as well as Article I Section 9 of
             the Pennsylvania Constitution.

Hill’s Supplemental Brief at 4. In accordance with this Court’s order dated

December 31, 2014, the parties have filed supplemental briefs addressing

these issues in light of the Supreme Court’s decision.

      When reviewing an order of a PCRA court, our standard of review is

limited to whether the determinations of the PCRA court are supported by

the evidence of record and free of legal error. Commonwealth v. Lesko,



                                      -5-
J-S59023-11


923 A.2d 1119, 1124 (Pa. 2007).          Our scope of review is limited to the

findings of the PCRA court and the evidence of record, viewed in the light

most    favorable    to   the   prevailing   party   at   the   PCRA   court   level.

Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citing

Commonwealth v. Colavita, 993 A.3d 874, 886 (Pa. 2010)).                 The PCRA

court's credibility determinations, when supported by the record, are binding

on this Court.      Commonwealth v. Medina, 92 A.3d 1210, 1214-15 (Pa.

Super.) (quoting Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011)),

appeal granted, 105 A.3d 658 (Pa. 2014).

       Counsel is presumed to be effective, and the defendant bears the

burden of proving ineffectiveness.       Burt v. Titlow, __ U.S. __, __, 134

S.Ct. 10, 17 (2013) (citing Strickland v. Washington, 466 U.S. 668, 689-

90 (1984); Commonwealth v. Ligons, 971 A.2d 1125, 1137 (Pa. 2009)

(citing Commonwealth v. Cooper, 941 A.2d 655, 664 (Pa. 2007)).                  The

test for determining the ineffectiveness of counsel is the same under both

the United States and Pennsylvania Constitutions.               Commonwealth v.

Williams, 936 A.2d 12, 19 (Pa. 2007).            To obtain relief on a claim of

ineffective assistance of counsel, an appellant must show (1) that there is

merit to the underlying claim; (2) that counsel had no reasonable basis for

his/her course of conduct; and (3) that the ineffectiveness resulted in

prejudice to the appellant. See, e.g., Commonwealth v. Rega, 933 A.2d

997, 1018 (Pa. 2007). The failure to satisfy any one of the prongs of the



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test for ineffective assistance of counsel requires rejection of the claim.

Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001).                      Trial counsel

will not be deemed ineffective for failing to pursue a meritless claim.

Commonwealth v. Pursell, 724 A.2d 293, 304 (Pa. 1999).

      For his first issue on appeal, Hill contends that while at the Derry

Township police station on April 21, 1998, he was subjected to a custodial

interrogation that occurred in the absence of a valid waiver of his Miranda

rights.    Hill’s Supplemental Brief at 24.     Hill notes that neither he nor his

parents completed the written waiver of rights form, as only some portions

of the form were signed before Lieutenant Kelly began an interrogation. Id.

at 28.     In particular, there is no signature in response to the question,

“[k]nowing these rights, are you willing to answer any questions without the

presence of a lawyer?” N.T., 4/25/2006, at 110.

      As a general rule, because of the inherently coercive nature of police

custodial interrogation, statements         elicited from an         accused in that

environment are inadmissible unless the accused was informed of and

voluntarily waived his privilege against self-incrimination and the right to

counsel.       Miranda     v.   Arizona,    384       U.S.    436    471–79       (1966);

Commonwealth         v.   DeJesus,    787      A.2d    394,    401–03      (Pa.   2001);

Commonwealth v. Kunkle, 79 A.3d 1173, 1179-80 (Pa. Super. 2013)

(“Statements     made     during   custodial    interrogation       are   presumptively

involuntary, unless the accused is first advised of her Miranda rights.”)



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(quoting Commonwealth v. Williams, 941 A.2d 14, 30 (Pa. Super. 2008)),

appeal denied, 2015 WL 1997695 (Pa. April 22, 2015).        Waiver is made

voluntarily if the decision to make it is the product of a free and

unconstrained choice. Commonwealth v. O'Bryant, 388 A.2d 1059, 1062

(Pa. 1978).

     In determining whether a waiver is valid, a suppression court looks to

the totality of the circumstances surrounding the waiver.     DeJesus, 787

A.2d at 402–03; Commonwealth v. Lyons, 79 A.3d 1053, 1066 (Pa.

2013), cert. denied sub nom., Lyons v. Pennsylvania, 134 S. Ct. 1792

(2014).       This Court recently summarized relevant Pennsylvania law

regarding the waiver of Miranda rights as follows:

              We begin by noting that “[i]t is the Commonwealth's
              burden to establish whether [a defendant] knowingly
              and voluntarily waived his Miranda rights. In order
              to do so, the Commonwealth must demonstrate that
              the proper warnings were given, and that the
              accused manifested an understanding of these
              warnings.” [Commonwealth v.] Baez, 21 A.3d
              [1280,]    1283     [(Pa. Super.     2011] (quoting
              Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d
              1122, 1135–36 (2007) (citation omitted)). The basic
              precepts regarding what constitutes a sufficient
              waiver of Miranda rights have been defined through
              a line of cases beginning with Commonwealth v.
              Bussey, 486 Pa. 221, 404 A.2d 1309, 1314 (1979)
              (plurality opinion). In that plurality opinion, our
              Supreme Court rejected the more lenient Federal
              constitutional rule that a defendant can implicitly
              waive his Miranda rights, instead holding that “an
              explicit waiver is a mandatory requirement.” Id. at
              1314 (emphasis added); see also North Carolina
              v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d



                                     -8-
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           286 (1979) (holding that under Federal constitutional
           law, an implicit waiver of Miranda rights could be
           found where an accused expresses an understanding
           of his rights and gives a statement without expressly
           waiving the same). Our Supreme Court elaborated
           that an “explicit waiver” meant “an outward
           manifestation of a waiver such as an oral, written or
           physical manifestation.” Id. at 1314 n.11.

           In Commonwealth v. Hughes, 536 Pa. 355, 639
           A.2d 763 (1994), the Court applied Bussey without
           acknowledging its limited precedential value as a
           plurality decision. There, the Court found that the
           defendant had “explicitly waived” his Miranda rights
           by “clearly and unequivocally” indicating that he
           understood his rights and then responding to the
           officer's questions. Id. at 770. In other words, the
           defendant's conduct “clearly manifested an intent to
           waive his rights.” Id. Similarly, in Commonwealth
           v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003), our
           Supreme Court held that the defendant's twice
           stating he understood his Miranda rights after they
           were read to him, and answering questions
           immediately thereafter, sufficiently “manifested the
           intent to waive his rights.” Id. at 844 n.13. Finally,
           in Baez, this Court relied on all of the above-cited
           Supreme Court cases in concluding that the
           defendant had sufficiently manifested his intent to
           waive his Miranda rights where those rights were
           read to him, he indicated one time that he
           understood them, and then he answered the
           questions asked by police. Baez, 21 A.3d at 1286.

Commonwealth v. Cohen, 53 A.3d 882, 885-86 (Pa. Super. 2012).

     The PCRA court reached the following findings of fact relevant to

whether Hill waived his Miranda rights before the interrogation on April 21,

1998:

           (3) The police did not begin questioning [Hill] until
           his parents arrived.



                                   -9-
J-S59023-11



            (4) After [Hill’s] parents arrived, Lieutenant Daniel
            Kelly read the Miranda warnings to [Hill] and his
            parents. The police then withdrew and gave [Hill]
            time alone to consult with his parents.

            (5) After [Hill] had consulted with his parents alone
            for about fifteen (15) minutes, [Hill’s] father
            summoned the police officers back into the room.
            [Hill] and his parents indicated that they would
            consent to an interview of [Hill]. [Hill] then orally
            indicated that he understood his Miranda rights and
            was willing to submit to questioning. Lieutenant
            Kelly inadvertently failed to obtain a signed waiver
            from [Hill].

Trial Court Opinion, 12/27/06, at 2-3. Based upon these findings of fact, the

PCRA court concluded that Hill “was properly advised of his rights by the

police and thereafter knowingly, intelligently and voluntarily consented” to

questioning. Id. at 5.

      The certified record supports these findings of fact.    At the PCRA

hearing, Lieutenant Kelly testified as follows:

      Q.    Did you read that warning form to Mr. and Mrs. Hill
            in the presence of their son? Did you give them
            private time to discuss the matter?

      A.    Yes, I did.

      Q.    What happened – by the way, how long was that
            private time?

      A.    I would estimate about 15 to 20 minutes.

      Q.    Where you and the other officers when they were
            having their quiet time?




                                     - 10 -
J-S59023-11


     A.   We were across the hallway in our office. I believe
          Mr. Hill came out and got us when they were done
          with their quiet time.

     Q.   Who was in the room during the time when you and
          other officers left the room where [Hill] was?

     A.   Just [Hill] and his parents, his mother and father.

     Q.   What happened after the elder Mr. Hill summoned
          you back into the room?

     A.   Myself and Detective Coulter went back into the
          room.    They indicated that they understood the
          Miranda rights and that they were willing to let their
          son speak to – with us. It was at that time on the
          top portion of that form were it says, I believe,
          Constitutional Rights and in parenthesis it says
          “adult,” that portion is for the concerned adult to
          sign that they understand their constitutional rights
          and they consent to the interview.

          I had Mr. and Mrs. Hill – I read that to them and
          they did understand their rights and they signed.
          The Xs you see beside their names on the top
          portion of that form are Xs that I myself had put on
          those lines prior to walking back into the room.
          When they signed, it was my error. I failed to have
          them sign again on the bottom.        It is kind of
          redundant, but that’s the way the form was. And I
          failed to have them sign the second time at the
          bottom.

     Q.   You put the tiny little Xs on the line where the
          person is supposed to sign?

     A.   Correct.

     Q.   After you read all those rights to [Hill], the II – after
          their quiet time, did he gave [sic] an indication as to
          whether or not he was willing to speak to you on this
          subject?




                                   - 11 -
J-S59023-11


      A.    Yes, he did.

      Q.    What did he indicate?

      A.    He indicated that he understood his rights and that
            he would speak without the presence of an attorney.

      Q.    At any point during the interview on April 21, did
            [Hill] invoke his rights to silence?

      A.    Never.

      Q.    Did he invoke his right to counsel?

      A.    No, never.

      Q.    Did he bring up – use the word “attorney” at any
            point?

      A.    No, he never requested – it was never requested,
            never mentioned.

      Q.    With regards to his parents, at no time during the
            April 21 interview did his parents ever indicate a
            desire to end the interview or have an attorney
            present?

      A.    No, they never did.

N.T., 4/25/2006, at 101-03; see also N.T., 11/18/1998, at 269.

      Hill and his parents offered strikingly different testimony regarding the

events of April 21, 1998 at the PCRA evidentiary hearing. Hill testified that

he and his parents asked for an attorney but the police summarily denied

the request, telling them Hill did not need one. Id. at 67. Hill also testified

that because he thought he needed an attorney, he did not sign the waiver

form. Id. Hill’s mother similarly testified that the police informed them that




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they did not need an attorney and proceeded to interrogate her son. Id. at

57-58.   Hill’s father testified that he signed the top portion of the waiver

form but refused to sign the bottom portion because he insisted that his son

needed a lawyer before any questioning. Id. at 94. He testified that he put

“X”s on the form next to any line requiring a signature for the waiver of

Miranda rights, indicating his intent to demonstrate an objection to the

interview without an attorney present (and to prevent a signature from

being added by someone else at a later time). Id. at 95.

      In its findings of fact, the PCRA court found Lieutenant Kelly’s

testimony regarding the events of April 21, 1998 to be more credible than

that of Hill and his parents.    As indicated hereinabove, the PCRA court

makes the credibility determinations and, so long as supported by the

certified record, they are binding on this Court. Medina, 92 A.3d at 1214-

15. Because Lieutenant Kelly’s testimony amply supports the PCRA court’s

findings of facts, they are binding here and establish that Hill sufficiently

manifested his intent to waive his Miranda rights on April 21, 1998. Hill’s

first issue on appeal thus lacks any merit.

      For his second issue on appeal, Hill argues that in connection with the

polygraph examination on April 25, 1998, he executed only a limited waiver

of his constitutional right to counsel restricted solely to the polygraph

examination itself, and that as a result the post-polygraph interrogation was

neither consensual nor voluntary. Hill’s Supplemental Brief at 22.



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      The United States Supreme Court addressed this issue in its 1982

decision in Wyrick v. Fields, 459 U.S. 42 (1982) (per curiam).1 In Wyrick,

the Supreme Court reversed a decision of the Eighth Circuit Court of Appeals

that effectively established a bright line rule that defendants must always be

re-advised of their Miranda rights before a post-polygraph interrogation

commences. Id. at 47. In Wyrick, the defendant requested the polygraph

examination, the post-polygraph interview was conducted by the same

person who had conducted the polygraph (after he had merely switched off

the polygraph machine), and the written waiver he signed included language

much broader than typically contained in a standard Miranda waiver. Id. at

43-47.    Specifically, in addition to the standard Miranda warnings, the

waiver form also advised the defendant as follows: “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.”   Id. at 44.   The Supreme Court disagreed with the Eighth

Circuit’s suggestion that the government should have reminded the

defendant of his Miranda rights before proceeding to any post-test



1
   Although Wyrick involved the issue of waiver of the defendant’s Fifth
Amendment right to counsel, in light of the Supreme Court’s ‘subsequent
decisions in Patterson v. Illinois, 487 U.S. 285 (1988) and Montejo v.
Louisiana, 556 U.S. 778 (2009), the decision in Wyrick applies equally to
possible waivers of a defendant’s Sixth Amendment right to counsel as well.



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questioning.    Id. at 46-47.   The Supreme Court ruled that whether Fields

had waived his right to counsel at a post-test examination had to be based

upon the “totality of the circumstances,” and that the facts as presented

demonstrated that new Miranda warnings were not necessary. Id. at 47-

48.

      In our prior decision in this case, we focused our attention principally

on the breadth and scope of the waiver signed by Hill prior to the polygraph

examination, following a number of federal and state rulings interpreting and

applying Wyrick.       See, e.g., United States v. Gillyard, 726 F.2d 1426

(9th Cir. 1984) (standard Miranda warnings, rather than more expansive

language   in    the   Wyrick    warning,     did   not   permit   post-polygraph

interrogation); United States v. Johnson, 816 F.2d 918, 921 n.4 (3d Cir.

1987) (“[A]ppellant signed waiver forms which strongly suggested that the

waiver of rights was applicable only to the polygraph examination.”); United

States v. Leon–Delfis, 203 F.3d 103, 111-12 (1st Cir. 2000) (despite

signing two waivers, appellant “did not mean he knowingly and intelligently

waived his rights for post-polygraph questioning.”); Monroe v. Coplan,

2007 WL 3264853, at *10 (Kan. App. October 11, 2007) (“Unlike the

situation in Wyrick, the waiver in the present case did not make it clear that

Mr. Downing would be subject to further questions after finishing the

polygraph examination.”).       We considered it significant that Attorney

Goldstein pre-approved the questions to be asked during the polygraph



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examination, as this effort largely served to establish the scope of the

examination, and thus the scope of the waiver executed in connection

therewith.

      In reversing our decision and remanding the case back to this Court,

however, our Supreme Court emphasized that to give sufficient “heed to the

High Court’s teaching in Wyrick,” our principle focus should be on the

continuity   of   the   interrogation   at   the   conclusion   of   the   polygraph

examination. Hill, 104 F.3d at 1242.

             Thus, there is force in the Commonwealth's
             argument that the panel should have focused on
             factors such as the continuity of the interrogation on
             April 25th, a circumstance dispelling concerns of the
             staleness of the warnings, and the fact that, despite
             being expressly made aware of his rights (including
             the “right to have an attorney present to speak with
             before and during questioning if you so desire” … and
             acknowledging that he understood those rights,
             appellee never invoked them.

Id.

      Regarding the continuity of the interrogation after Detective Steenson

completed the polygraph examination, the PCRA court made the following

relevant findings of fact:

             (11) [Hill] executed a written waiver of his Miranda
             rights, although that written waiver cannot presently
             be located.

             (12) [Hill] submitted to a polygraph examination
             and was informed by Detective Steenson that he had
             failed the examination.    Immediately after the
             polygraph examination, Detective Steenson and



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            Lieutenant Daniel Kelly interviewed [Hill].     [Hill]
            made incriminating statements in this interview. The
            statements made to Detective Steenson and
            Lieutenant Kelly were part of the interview to which
            [Hill] submitted as part of the Miranda waiver.

            (13) [Hill] never invoked his right to silence or to
            counsel during the interview on April 25, 1998.

            (14) The police officers made no threats or promises
            to [Hill] before or during the interview.

            (15)    Attorney Goldstein anticipated that the
            polygraph process would include a pre-test interview
            and a post-test interview, as was customary in such
            cases.

            (16) Attorney Goldstein did not insist on being
            present for all aspects of the polygraph process as
            he was aware that if he did so, the polygraph would
            not be administered. Attorney Goldstein determined
            that taking the polygraph was in his client’s best
            interests based on [Hill’s] assertion of innocence,
            and the facts of the case as outlined by [Hill] to his
            said counsel.

            (17)    The pre-test and post-test interviews by
            Lieutenant Kelly and Detective Steenson were part of
            the polygraph process.

Trial Court Opinion, 12/27/06, at 2-3.

      The testimony of Lieutenant Kelly at the PCRA hearing supports these

findings of fact. N.T., 4/25/06, at 105-06, 117-19. Importantly, Lieutenant

Kelly testified that Hill indicated that he understood his rights and did not, at

any time on April 25 (before or after the polygraph examination), ask to end

the questioning or request a lawyer.          Id. at 106.   Hill testified to the

contrary, including that when Lieutenant Kelly began the post-polygraph



                                     - 17 -
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interrogation he (Hill) inquired regarding Attorney Goldstein’s whereabouts

and was informed that he was not at the police station. Id. at 73. At trial,

Hill testified that Lieutenant Kelly ignored his request to have Attorney

Goldstein present and continued to ask him questions. N.T., 11/19/1998, at

513.    Again, however, it was within the PCRA court’s province to make

credibility determinations, and on this point the PCRA court credited

Lieutenant Kelly’s testimony over Hill’s. Medina, 92 A.3d at 1214-15. We

also note that at trial, Hill acknowledged that he understood that he had the

right not to answer Lieutenant Kelly’s questions and was free to stop the

interrogation at any time. N.T., 11/19/98, at 608.

       The PCRA court’s findings of fact regarding the continuity of the post-

polygraph interrogation, which are adequately supported by the certified

record on appeal, are sufficient to provide a basis for the PCRA court’s

conclusion Hill knowingly, intelligently and voluntarily made his April 25,

1998 post-polygraph statement to Lieutenant Kelly.       Trial Court Opinion,

12/27/06, at 5. Accordingly, based upon our standard of review, we will not

disturb the PCRA court’s determination that Hill’s second issue on appeal is

without merit and the PCRA court did not err in dismissing the PCRA petition

for this reason.




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J-S59023-11


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/10/2015




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