Commonwealth v. Bussey

404 A.2d 1309, 486 Pa. 221, 1979 Pa. LEXIS 671

• Court: Supreme Court of Pennsylvania
• Decided: August 27, 1979
• Docket: 108
• Status: Published

Opinions

OPINION

EAGEN, Chief Justice.

Bruce B. Bussey, appellant, was convicted of murder of the first degree following a nonjury trial in the Court of Common Pleas of Bucks County. Post-verdict motions were denied, and judgment of sentence of life imprisonment was imposed. This appeal followed.

Bussey raises two issues seeking discharge or the grant of a new trial.

In support of his request for discharge, Bussey maintains the trial court erred in denying his application for an order dismissing the charges pursuant to Pa.R.Crim.P. 1100(f).

While trial did not commence within two hundred seventy (270) days from the date the complaint was filed, Pa.R. Crim.P. 1100(a)(1), and while no petition to extend the mandatory period in which to commence trial was filed, Pa.R.Crim.P. 1100(c), the Commonwealth argues trial commenced within the mandatory period of Pa.R.Crim.P. 1100(a)(1) because computation of the mandatory period requires exclusion of a period of time sufficient to bring the commencement of trial within the two-hundred-seventy-(270)-day mandate. Specifically, the Commonwealth urges the period between December 21, 1973 and January 18, 1974 should be excluded.¹ The Commonwealth is correct.

The record shows that, on December 21, 1973, Bussey appeared before a district justice for a preliminary hearing.² The district justice asked Bussey if he wished to obtain private counsel and received an affirmative reply. The Commonwealth indicated it would not oppose continuing the hearing, but asked that the date be set after “the first of the year.” Subsequently, the hearing was set for January 18, 1974 at which time Bussey appeared with counsel. Counsel then requested a continuance which was granted.

Commonwealth v. Millhouse, 470 Pa. 512, 368 A.2d 1273 (1977), is controlling as to this period. In Commonwealth v. Millhouse, supra, the accused who was not indigent presented himself for a preliminary proceeding without counsel and did not waive his right to counsel. For this reason, the proceeding was delayed. We concluded that, under such circumstances the accused was unavailable within the meaning of Pa.R.Crim.P. 1100(d)(1) and that the period of delay resulting from the unavailability, i. e. until counsel entered an appearance, was to be automatically excluded.

Instantly, Bussey appeared at a preliminary proceeding without counsel, did not waive his right to counsel, and was financially capable of retaining private counsel.³ The delay in the proceeding was the result⁴ of these circumstances and counsel did not enter into the case until January 18, 1974.⁵ Hence, Bussey was unavailable for this period, and it must be excluded pursuant to Pa.R.Crim.P. 1100(d)(1).⁶

Since this period must be excluded in computing the mandatory period and since doing so brings the commencement of trial within the confines of Pa.R.Crim.P. 1100(a)(1), the trial court did not err in denying the application to dismiss.⁷

In support of his request for a new trial, Bussey argues the trial court erred in refusing to grant his motion to suppress certain incriminatory statements given by him to police and in permitting evidentiary use of these statements at trial. Specifically, Bussey argues the statements were given in violation of his constitutional rights as interpreted in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) [hereinafter: Miranda] in that he did not expressly waive or indicate an understanding of his rights.⁸ We agree.

The relevant facts are:

Bussey was arrested on December 14, 1973, in Burlington, New Jersey, at approximately 1:30 a. m. by police of that city. At the scene of the arrest, Bussey was advised of certain rights pursuant to Miranda, but “did not specifically acknowledge that he understood the rights as given” and did not expressly waive his rights.

Bussey was then transported to Burlington City Police Station. Arriving there at approximately 1:45 a. m., he was confronted by a detective from the Office of the District Attorney of Bucks County. The detective asked Bussey if he was “all right, and whether he was under the influence [of] drugs or alcohol.” Bussey responded that he was alright and that he was not under any such influence.

Bussey was then asked if “he knew why he had been picked up,” and he responded “it must be because [I] killed that dude back in Pennsylvania.” The detective then left to make certain phone calls.

Shortly after 2:00 a. m., a Bensalem Township police detective and a Pennsylvania state trooper, who had been present during the 1:45 a. m. conversation, began talking to Bussey “about different things to get him talking.” A conversation occurred concerning Bussey’s girl friend. Then the two gave Bussey warnings pursuant to Miranda which he acknowledged and indicated he understood. Bussey indicated he was “willing to answer questions without the presence of an attorney.” Bussey then told the two that the victim had been killed by “three men who broke into [Bussey’s] house and that [he, Bussey,] was not responsible for the death of the victim.”

The state trooper then told Bussey he did not believe him because it was contrary to what Bussey had said to the detective from the district attorney’s office. Indeed, the trooper told Bussey he was “lying.” Bussey began to talk about his girl friend, but the conversation soon returned to the subject of the crime. Bussey then stated: “I just can’t tell you.”⁹ Bussey then began to “fill up a bit,” i. e. got “ready to cry.” The police detective then told Bussey he might “feel better if he did talk about it.” Bussey then gave an incriminatory statement which included a reference to throwing “guns off the Burlington Bristol Bridge.” The questioning stopped at 2:30 a. m. when instructions were received from the district attorney’s office that a formal statement would be taken when a court stenographer arrived and that interrogation was not to be conducted until then.

Subsequent to the above conversation, Bussey, in conversation with the detective from the district attorney’s office about extradition, indicated “things looked pretty bad for him and ... he might have to spend either a long time or the rest of his life in jail.” He also stated he would “. . . plead guilty right now.”

The court stenographer arrived at 4:05 a. m. and a formal statement was taken beginning at 4:28 a. m. Prior to taking the formal statement, a lieutenant of the Bensalem Township Police Department, who was the chief questioner, warned Bussey of his rights. At the conclusion of the recitation of the warnings when asked if he understood “all of the things that have just been explained,” Bussey asked the lieutenant to “[b]ack up to the last part.” The lieutenant repeated the warning which advises of the right to a “lawyer . . . free of charge” if Bussey could not “afford to hire” one. Bussey then responded, “[o]kay,” and was then asked if he understood his rights as explained. He indicated he did and was asked if he wanted “to answer our questions without a lawyer being present . . . ? Yes or no.” Bussey asked: “Can I say something besides yes or no?” When told he could, he asked, “What do you recommend?” The assistant district attorney who was present replied:

“That’s up to you to decide since we are representing the District Attorney’s Office. It’s up to you to decide whether you want to answer our questions without a lawyer being present.”

Bussey then stated: “Okay, I will, I’ll answer your questions.”

Questioning began but shortly thereafter when asked what happened when the victim came to Bussey’s house, he asked: “I ain’t allowed to ask no questions?” The lieutenant responded: “Ask whatever you want.” Bussey responded:

“Well, I explained everything to him [the detective from the office of the district attorney, see p. 5 supra] before. I don’t know why I have to say this now.”

The lieutenant responded: “Well, we would like to hear this again ourselves.” Bussey replied: “[o]kay,” and the formal statement continued until completed at 5:04 a. m.

Bussey waived extradition before a judge in Mt. Holly, New Jersey and was transported to Bensalem Township Police Headquarters where he arrived at 11:00 a. m. on December 14, 1973.¹⁰ At 1:30 p. m., while- being processed, Bussey saw the detective from the district attorney’s office, see 1312, supra, and indicated that he wished to speak to him in private. The detective indicated such a conversation would have to await completion of processing.

At 2:00 p. m., Bussey spoke to the detective who told Bussey in response to inquiries that, “if one of two people do a job, and both get arrested,” it would be up to the court whether “they have to serve time in the same prison” and that the detective was aware of a gang-related crime where persons served in separate prisons. The detective then asked “why . . . was someone else involved with you in this killing.” Bussey replied: “Yes, but I don’t know if I would testify against him, I would fear for my life.” Bussey then incriminated one Dwight Tools and advised the detective that he had not thrown the guns involved over a bridge, and that Tools had one gun and the other was in New Jersey. Bussey was then taken to a lieutenant’s office where he repeated the above information, was advised he could not be taken across the state line to locate one of the guns, and indicated the location of the gun. The gun was found where Bussey indicated it was left. Warnings were not given to Bussey during or immediately prior to this conversation. Bussey was arraigned at 3:45 p. m.

The suppression court, in effect, found an implicit understanding and waiver of constitutional rights by Bussey before Bussey first incriminated himself in response to the inquiry if he knew why he had been picked up. As noted before, Bussey was not warned of his constitutional rights at this exact time. While it is true that such warnings were given about fifteen minutes earlier at the scene of the arrest, the record demonstrates that, at that particular time, Bussey did not acknowledge he understood or waived his rights.

In North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979), the United States Supreme Court held an implicit waiver of rights could be found where an accused expresses understanding of his rights and gives a statement without expressly waiving his rights. We could distinguish the instant case on the basis that Bussey never expressed an understanding of his rights prior to incriminating himself at 1:45 a. m., but we decline to do so and we decline to follow North Carolina v. Butler, supra.

Miranda surely requires warnings be given, and the Supreme Court of the United States has not departed from this per se requirement. Accordingly, that Court still recognizes a need for warnings as a matter of federal constitutional law, and we are bound to follow this mandate. Since that is so, we fail to understand why an explicit waiver¹¹ should not also be required, and, accordingly, pursuant to our supervisory powers and interpretation of the Pennsylvania Constitution, we hold an explicit waiver is a mandatory requirement.¹² See Commonwealth v. Goldsmith, 438 Pa. 83, 263 A.2d 322 (1969). Cf. Commonwealth v. Walker, 470 Pa. 534, 546, 368 A.2d 1284, 1290 (1977) (Eagen, J. concurring opinion joined by Jones, C. J., O’Brien and Pomeroy, JJ.) (standard warnings and explicit responses “most desirable”).

Our ruling, unlike North Carolina v. Butler, supra, will promote certainty in knowing an accused has waived his rights and will avoid a mountain of litigation which might otherwise result from trying to determine what “implicitly” went on in an accused’s mind.¹³ Cf. Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). Our ruling will also serve to impress on an accused the importance of his decision.¹⁴ Furthermore, assuming North Carolina v. Butler, supra, was concerned with additional burdens being placed on law enforcement officials, given Miranda, we cannot agree our ruling creates any such burden. Surely if the rights must be explained, merely asking for an answer to a question is no great burden, and, even if it. is a burden, it will promote certainty in the law and, thereby, eliminate a greater burden resulting from allowing implicit waivers.

Accordingly, since Bussey expressed no desire to waive his rights prior to giving the 1:45 a. m. incrimination, it was illegally obtained and having allowed evidentiary use thereof requires the grant of a new trial.¹⁵

The incriminatory statements obtained from Bussey during the 2:00 a. m. conversation were clearly the fruit of the prior illegally obtained statement since they were given only after Bussey was confronted with the 1:45 a. m. incrimination. Hence, it was obtained by exploitation of the primary illegality and was improperly admitted into evidence. Commonwealth v. Frazier, 443 Pa. 178, 279 A.2d 33 (1971); Commonwealth v. Ware, 438 Pa. 517, 265 A.2d 790 (1971). Also, the formal statement given at 4:28 a. m. was improperly allowed into evidence for the same reason as the 2:00 a. m. statement. While the “link” is not as strong in connection with the 4:28 a. m. statement as it is with the 2:00 a. m. statement, the request to hear the same thing again clearly precludes a ruling that the 4:28 a. m. statement was “purged of the primary taint.” Commonwealth v. Ware, supra, 438 Pa. at 521, 265 A.2d at 792.

Judgment of sentence reversed and a new trial is granted.

MANDERINO, J., concurs in the result. NIX, J., files a dissenting opinion. LARSEN, J., files a dissenting opinion.

1 . This period is sufficient to bring the commencement of trial within the mandatory period.

The Commonwealth also argues that a period or part of a period of one hundred and five (105) days should be excluded and that Bussey waived the protections of Pa.R.Crim.P. 1100. In light of our disposition, we need not consider these arguments.

2 . A public defender was present, but indicated that he did not represent Bussey and that Bussey was attempting to retain private counsel.

3 . Bussey maintains the record does not show this capability; yet, when asked if he wished to obtain private counsel, Bussey responded affirmatively and, in fact, obtained private counsel.

4 . Here, as in Commonwealth v. Millhouse, supra, 470 Pa. at 518, 368 A.2d at 1276, the “sole reason for the delay was the absence of defense counsel.” The Commonwealth’s request that the proceeding, once delayed, be scheduled after “the first of the year” did not cause the delay.

5 . Counsel did not enter an appearance at this time, but did appear at the proceeding on January 18, 1974.

6 . Commonwealth v. Wade, 475 Pa. 399, 380 A.2d 782 (1977), is distinguishable. Id., 475 Pa. at 406 n. 7, 380 A.2d at 785 n. 7.

7 . This period of unavailability did not result in a delay in trial, but that fact is irrelevant. Commonwealth v. Millhouse, supra 470 Pa. at 518 n. 5, 368 A.2d at 1276 n. 5; Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978) (unavailability for arraignment excluded in determining if petition for extension of time is timely, i. e. filed prior to expiration of the mandatory period.)

8 . Bussey advances other reasons why evidence of the challenged statements should have been suppressed, but, in view of our disposition, we need not reach these additional arguments.

9 . The suppression court characterized this statement as an expression of emotion and not an exercise of the right to remain silent. We need not decide whether the court’s characterization can be accepted or not in order to dispose of this appeal, and, accordingly, we do not.

10 . While in route, Bussey engaged in conversation with two detectives in which he asked various questions including what would happen if he could prove he did not kill the victim. He was told, if that were so, he would be let go, but that was not what Bussey had said the previous night. There is no indication in the record that Bussey was warned of his rights at this time.

11 . By explicit waiver, we mean an outward manifestation of a waiver such as an oral, written or physical manifestation.

12 . We do not mean to imply an express waiver for each and every right is necessary.

13 . In addition to warnings, an expression of understanding, and the giving of a statement, a multitude of manifestations by an accused can occur between an expression of understanding and a giving of a statement. Our ruling will not eliminate consideration of such manifestations, but, by requiring an express waiver, we can limit the number of cases in which the multitude of manifestations may affect the ultimate finding of a waiver.

14 . The importance of waiving one’s rights is obvious, and, by our ruling, we seek to promote a deliberate and conscious decision before any statement is given. Common sense teaches persons often speak before they think.

15 . Certainly the question asked of Bussey was “likely to or expected to elicit a confession,” Commonwealth v. Simala, 434 Pa. 219, 227, 252 A.2d 575, 579 (1969), and, hence, constituted interrogation. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Commonwealth v. Mercier, 451 Pa. 211, 302 A.2d 337 (1973).