A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

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The Superior Court of Pennsylvania has decided the case of COMMONWEALTH of Pennsylvania v. Elton Eugene HILL, Appellant, 2012 WL 666147, 646 MDA 2011, filed March 1, 2012, an appeal from a PCRA Order of Judge Lawrence Clark of the Court of Common Pleas, Dauphin County, Criminal Division CP–22–CR–0001407–1998. The case was before Judges PANELLADONOHUE and ALLEN. Judge Donohue wrote the Opinion for the 2-1 majority.

Hill appealed an order denying his petition for relief pursuant to the Post Conviction Relief Act, contending that he was deprived of the effective assistance of counsel when his trial attorney failed to file a motion to suppress his post-polygraph statements, which he claimed the police obtained in violation of his state and federal constitutional rights to counsel. The Court had to determine whether Hill waived his Sixth Amendment right to counsel in connection with a post-polygraph interrogation.

After his arrest and charges were filed, Hill was transported from county prison back to the police station. His attorney 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. The attorney, a representative of the district attorney’s office, and 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, Detective Steenson read Hill a form that contained a recitation of his Miranda rights, which Hill then initialed and signed. The polygraph examination proceeded to conclusion. The attorney 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, another officer, Detective Kelly, entered and proceeded to interrogate Hill. Detective Kelly did not ask questions from those approved by the attorney prior to the polygraph test. At trial, Detective Kelly testified that Hill began to cry uncontrollably and made incriminating statements.

Hill’s Sixth Amendment right to counsel attached the day before the polygraph examination in question when the Commonwealth filed its initial criminal complaint against him. When Hill waived his Mirandarights at the initiation of the polygraph examination, he also waived his Sixth Amendment right to counsel for purposes of the polygraph examination. The issue presented here, however, was the scope of that waiver—did Hill waive his right to counsel only for purposes of the polygraph examination, or with respect to any interrogation on that day, including Detective Kelly’s post-polygraph interrogation? No Pennsylvania appellate court had addressed the issue of waiver of the Sixth Amendment right to counsel in connection with post-polygraph interrogations.

The Panel could not agree with the PCRA court’s finding that Hill waived his Sixth Amendment right to counsel for purposes of the post-polygraph interrogation. Hill was a juvenile with no prior criminal record, and no evidence showed that Hill had been advised that post-polygraph questioning would occur, or that his waiver of his Miranda rights extended in scope beyond the polygraph examination itself. Hill received a standard recitation of Miranda warnings, with no reference to post-polygraph questioning.

The scope of Hill’s Miranda waiver prior to the polygraph examination must be based upon what Hill understood at the time he signed the written waiver of rights form. The record on appeal contained no evidence that Hill was waiving his right to counsel during a post-polygraph interrogation. As a result, the Commonwealth failed to satisfy its burden of proof that Hill knowingly and intelligently waived his Sixth Amendment right to counsel.

Hill’s claim that his attorney was ineffective for failing to file a motion to suppress Hill’s post-polygraph statement had merit as the attorney had no reasonable basis for his actions and the failure to suppress Hill’s statement was highly prejudicial. The scope of Hill’s waiver of his constitutional right to counsel was the only genuine issue for the PCRA court’s resolution, since without Hill’s post-polygraph incriminating statement to Lieutenant Kelly, the DA had no case. Therefore, the PCRA court had erred in dismissing Hill’s PCRA petition.

Judge PANELLA filed a Dissenting Opinion.

The attorney for the Appellant was Jonathan W. Crisp of Harrisburg.

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