By Burt Rose
On May 26, 2015, the Supreme Court of Pennsylvania decided the case of COMMONWEALTH of Pennsylvania, Appellant v. Dennis BLAND, Appellee. No. 33 EAP 2013. This was an appeal from the Order of the Superior Court entered on 2/5/13 at 1174 EDA 2011 affirming an order of Judge Sarmina of the Court of Common Pleas, Philadelphia County, Criminal Division, CP–51–CR–0012459–2008.
Chief Justice SAYLOR wrote the Opinion for himself and Justices Eakin and Baer. Justice Todd dissented. According to the Chief Justice, “This appeal centered on the nature of a valid invocation of the Miranda-based right to counsel, specifically, in terms of whether the right must be asserted in close temporal proximity to custodial interrogation or may be effectively invoked remotely from such questioning.”
Appellee, Dennis Bland, Jr., allegedly shot and killed Keron Remberan in Philadelphia, then fled to his mother’s house in Florida. After learning of Appellee’s whereabouts, police obtained an arrest warrant and notified Florida law enforcement. Federal authorities in Florida detained Appellee, who was 17 years old at the time, and he was placed in a juvenile facility to await extradition to Pennsylvania. The day after Appellee’s arrest, his father contacted the Defender Association of Philadelphia and apprised an attorney of his son’s circumstances. The lawyer sent a form letter via facsimile to Florida counsel representing Appellee in connection with the extradition proceedings, asking that Appellee sign and return the document. The letter reflected a very clear putative invocation of the Miranda-based right to counsel, as follows:
PLEASE BE ADVISED THAT I … DO NOT WISH TO SPEAK WITHOUT AN ATTORNEY PRESENT.I WISH TO BE REPRESENTED BY A LAWYER. UNTIL SUCH TIME AS I HAVE AN OPPORTUNITY TO FULLY DISCUSS THE DETAILS OF MY CASE WITH MY LAWYER …, I STATE THE FOLLOWING TO YOU:I DO NOT WISH TO BE QUESTIONED OR HAVE ANY DISCUSSION WITH THE POLICE.I DO NOT WISH TO SPEAK TO YOU WITHOUT MY ATTORNEY PRESENT. I WILL NOT WAIVE OR GIVE UP ANY OF MY RIGHTS UNDER MIRANDA V. ARIZONA, NOR WILL I GIVE UP ANY OF MY PENNSYLVANIA OR FEDERAL CONSTITUTIONAL RIGHTS EITHER ORALLY OR IN WRITING WITHOUT THE PRESENCE OF MY LAWYER.
Appellee signed this letter, and it was returned to the Defender Association, which forwarded copies to the Philadelphia Police Department’s homicide unit and the Office of the District Attorney via fax.Subsequently, Appellee waived extradition and was escorted to Philadelphia, where he remained in police custody.
Six days after Appellee had signed the form sent by the Defender Association while he was in Florida, a detective provided him with Miranda warnings. During ensuing questioning, Appellee ultimately confessed to perpetration of the killing, and, after later consultation with his father, he also provided a written confession.Appellee was charged with murder, firearms violations, and several related offenses, and the Defender Association was formally appointed as counsel.
Appellee filed a pre-trial motion to suppress his written statement, claiming that police violated his rights under Miranda, as well as under Article 1, Section 9 of the Pennsylvania Constitution, which, like the Fifth Amendment, protects against self-incrimination. After a hearing, the suppression court awarded relief and foreclosed the admission of Appellee’s confessions into evidence at his forthcoming trial. In its opinion, the suppression court explained that Miranda’s prophylactic measures—including its affordance of a right to counsel relative to in-custody interrogation—were intended to protect a suspect’s Fifth Amendment rights from the “inherently compelling pressures” of the custodial environment.
Additionally, the court referred to the Edwards requirement that, once a detainee has invoked his Miranda based right to counsel during custodial interrogation, questioning must be suspended. In terms of the timing of Appellee’s invocation, the suppression court relied on broad language from Miranda specifying that, if an individual indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. Applying this principle to Appellee’s circumstances, the court determined that—because he had personally asserted his rights by signing the non-waiver letter—Appellee had made an effective invocation, and uncounseled interrogation was proscribed even six days later.
The Commonwealth lodged an interlocutory appeal in the Superior Court, and a divided, three-judge panel (Judges Gantman and Fitzgerald, with now Justice Stevens in dissent) affirmed via memorandum decision, essentially applying the reasoning of the suppression court. The Commonwealth petitioned for allowance of appeal, and the Court accepted review of the following issue: Did Superior Court err by suppressing a confession that respondent gave after receiving Miranda v. Arizona, 384 U.S. 436 (1964), warnings because, six days prior to any police questioning, while in custody in another jurisdiction, he had signed a form anticipatorily declining to be interviewed?
The Supreme Court held that valid invocations of the Miranda right “should be made in close temporal proximity to the circumstances giving rise to the relevant concern”. In other cases, the accused had invoked his Miranda-based right to counsel in close association with custodial interrogation. Here, the Appellee simply did not invoke his rights in close association with custodial interrogation; in point of fact, Appellee acceded to questioning at such time. This issue remains one of first impression for the U.S. Supreme Court. As of today, however, there is no precedent for a valid invocation of Miranda rights anticipatorily outside the context of custodial interrogation. Furthermore, the Court declined to grant approval of anticipatory invocations of a right to counsel under Article 1, Section 9 of the Pennsylvania Constitution.
Thus the Court held that, to require a suspension of questioning by law enforcement officials on pain of an exclusionary remedy, an invocation of the Miranda-based right to counsel must be made upon or after actual or imminent commencement of in-custody interrogation. The order of the Superior Court was therefore reversed.