Commonwealth v. Hubble

504 A.2d 168, 509 Pa. 497, 1986 Pa. LEXIS 712

Opinions

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

LARSEN

Footnotes

•

*, Justice.

We granted the Commonwealth’s petition for allowance of appeal in this case to determine whether the Superior Court, 818 Pa.Super. 76, 464 A.2d 1236 (1983), erred in awarding appellee a new trial on the grounds that his confession should have been suppressed under the principle enunciated by the United States Supreme Court in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), reh’g. denied 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981). A majority of this Court agrees that Edwards does not require suppression of appellee’s confession and we therefore reverse the Superior Court.

On August 5, 1976, the bodies of Mrs. Claire Kepner and her two young children were discovered in their home near Muncy in Lycoming County. All had been shot with a .32 caliber gun, and one of the children had been slashed with a knife.¹ These three homicides engendered an intensive investigation by the Pennsylvania State Police which culminated with the arrests of David Hubble, appellee, as well as his brother, Robert K. Hubble, and Milton Scarborough in the summer of 1977.

Appellee was first interviewed by state troopers regarding the homicides in April of 1977 and then on several occasions in July. The events underlying the suppression matters occurred principally on July 12th and 13th, and, briefly, took place as follows. On July 12, 1977, appellee and his wife voluntarily accompanied Troopers John S. Shimko and Chester J. Zaremba to the State Police Bar racks in Montoursville. At approximately 2:15 p.m., appellee gave a taped statement to the troopers which was not self-incriminating; this statement reiterated what appellee had previously informed the troopers regarding his brother’s involvement in the homicides. Subsequently, in the process of leaving the barracks to be returned to their home, appellee and his wife indicated that they wished to speak with each other and were given an opportunity to do so. At approximately 5:45 p.m. appellee gave a second taped statement to the police, this time inculpating himself in the homicides. Appellee and his wife were then returned to their home.

The following day, appellee telephoned Trooper Shimko and informed him that everything he had told Shimko the previous day was a lie. However, upon voluntarily returning to the barracks with his wife on July 13th, appellee admitted that his July 12th confession had been truthful and he essentially reiterated that confession. Prior to each statement, and on several occasions previous to July 12th, appellee had been advised of his Miranda rights² and had signed a written waiver of those rights.

Appellee moved to suppress these statements of July 12-13, 1977 and a lengthy pretrial suppression hearing was conducted on November 11, 1977 before the Honorable John A. Walter in the Court of Common Pleas of Lebanon County.³ The court denied appellee’s motion to suppress and the case was tried before a jury. On November 25, 1977, the jury found appellee guilty of robbery, burglary, theft, conspiracy and three counts of murder of the second degree. Appellee filed post-verdict motions which were denied by the court en banc. In his opinion for the court en banc, Judge Walter stated:

Defendant first contends that the Court erred in failing to grant his motion to suppress incriminating statements taken from him by the police. Specifically, defendant alleges that on July 12, 1977, he was subject to custodial interrogation calculated to evoke admissions without being adequately informed of his right to counsel and in the absence of an intelligent, informed waiver of such right.

a.

We must first determine whether or not defendant was subject to custodial interrogation on July 12, 1977. The test for determining whether a person is in custody for Miranda purposes is whether he “... is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation____” Commonwealth v. Romberger, 454 Pa. 279, 283, 312 A.2d 353, 355 (1973). (footnote omitted)

Slip opinion of court en banc at 1-2.

Because appellee had been subjected to a polygraph examination and to intermittent questioning over an eight hour period by Pennsylvania State Police officers at the police barracks on July 12, 1977, the court en banc concluded that appellee had been in custody. That court cited and discussed Commonwealth v. Brown, 473 Pa. 562, 375 A.2d 1260 (1977) to support its view that a reasonable person in appellee's situation would have “perceived the restraint of his freedom.” Id.

Having determined that appellee had been in custody, the court then examined the nature of the questions and statements posed to him by various state troopers, determined that appellee had been “subject to police conduct calculated to or likely to evoke admissions,” and held that appellee had been subject to interrogation. Id. at 3-5, citing Commonwealth v. Simala, 434 Pa. 291, 252 A.2d 575 (1969) and Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974). Thus the court held that appellee had been subjected to “custodial interrogation” for Miranda purposes.

The court further found that appellee had been adequately advised of his Miranda rights, that he knowingly, volun tarily and intelligently waived his right to remain silent and to have counsel present during questioning, and that, considering the “totality of the circumstances,” his confession was the “product of a ‘free and unconstrained choice.’ ” Id. at 5-9. Accordingly, the court en banc affirmed the denial of appellee’s motion to suppress, and denied the remaining post-verdict motions as well. Appellee appealed that denial to the Superior Court, which reversed and remanded for a new trial.

Initially, the Superior Court identified the appropriate standards of appellate review of a suppression court’s rulings:

On review, our responsibility is ‘to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.’ Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975).

“If the suppression court has determined that the evidence is admissible, ‘this Court will consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.’ Commonwealth v. Kichline, 468 Pa. 264, 280, 361 A.2d 282, 290 (1976); see Culombe v. Connecticut, 367 U.S. 568, 604, 81 S.Ct. 1860, 1878, 6 L.Ed.2d 1037 (1961) (Opinion of Frankfurter, J.)” Commonwealth v. Brown, 473 Pa. 562, 566, 375 A.2d 1260, 1262 (1977).

318 Pa.Superior Ct. at 78, 464 A.2d at 1237. After examining the record pertaining to the events of July 12, 1977, the Superior Court affirmed the lower court’s finding of custodial interrogation, stating:

The suppression court held that [appellee] had been subjected to custodial interrogation on July 12, 1977 for Miranda purposes and that the investigating officers had engaged in interrogation and conduct calculated to or likely to evoke admissions. We agree with these legal conclusions. They are based upon the court’s findings of fact and are amply supported by the record. See: Com monwealth v. Chacho, 500 Pa. 571, 578-82, 459 A.2d 311, 314-316 (1983) (numerous further citations omitted). The suppression court determined further that [appellee] had been adequately advised of his right to appointive counsel and that he had voluntarily and knowingly waived his right to such counsel. “We are bound by the court’s findings of fact where, as here, they are supported by the record.”

Id., 318 Pa.Superior Ct. at 83-4, 464 A.2d at 1240. (citations omitted).⁴

Nevertheless, the Superior Court reversed and awarded appellee a new trial based upon its understanding that appellee’s waiver of his right to counsel was ineffective as a matter of law under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), reh’g denied 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981), and that, therefore, his confession should have been suppressed. This holding is wrong.

In Edwards, the United States Supreme Court held that: when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interroga tion even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

____We ... emphasize that it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.

451 U.S. at 484-85, 101 S.Ct. at 1884-85 (footnote omitted).

In reliance upon Edwards, the Superior Court held, in the instant case:

The record in this case establishes beyond peradventure of a doubt that after appellant had clearly and unequivocally invoked his right to counsel and after he had attempted, unsuccessfully, to reach counsel by telephone, he was questioned further by Trooper Shimko. That he responded to such police-initiated questioning does not establish a waiver of the right to counsel previously invoked. “For a waiver ... to be effective, the reversal of the defendant’s position must have been initiated by him.” (citation omitted) Here, it was not appellant who, after asserting his rights, indicated a desire to waive them without further activity on the part of the police. Instead, it was the police who initiated the chain of events which culminated in appellant’s inculpatory statement. This was improper. Appellant had requested and was entitled to have counsel present. His statement given in response to police questioning and without counsel should have been suppressed.

318 Pa.Superior Ct. at 89, 464 A.2d at 1242-43.

The Superior Court’s reliance on Edwards to suppress appellee’s statement is misplaced because, despite that court’s strong language to the contrary, the record does not establish that appellee “clearly and unequivocally invoked his right to counsel” so as to trigger Edwards’ prophylactic prohibition against all further police-initiated conversation.⁵ As the United States Supreme Court recently stated:

This “rigid” prophylactic rule [enunciated in Edwards v. Arizona ] embodies two distinct inquiries. First, courts must determine whether the accused actually invoked his right to counsel. See, e.g., Edwards v. Arizona, supra, 451 U.S., at 484-485, 101 S.Ct., at 1884-1885.... Second, if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked. Edwards v. Arizona, supra, 451 U.S., at 485, 486, n. 9, 101 S.Ct., at 1885, n. 9.

This case concerns the threshold inquiry: whether Smith invoked his right to counsel in the first instance. On occasion an accused’s asserted request for counsel may be ambiguous or equivocal. As the majority and dissenting opinions below noted, courts have developed conflicting standards for determining the consequences of such ambiguities, (citations and footnote omitted). We need not resolve this conflict in the instant casé, however, because the judgment of the Illinois Supreme Court must be reversed irrespective of which standard is applied.

The conflict among courts is addressed to the relevance of alleged ambiguities or equivocations that either (1) precede an accused’s purported request for counsel, or (2) are part of the request itself. Neither circumstance pertains here, however.

Smith v. Illinois, 469 U.S. at —, 105 S.Ct. at 492-93.

Because the Illinois Supreme Court had inferred ambiguity into Smith’s otherwise unequivocal request for counsel from his responses to subsequent police questioning, the United States Supreme Court reversed, holding that “[w]here nothing about the request for counsel or the circumstances leading up to the request would render it ambiguous, all questioning must cease.” Id. at —, 105 S.Ct. at 494.

As in Smith, the instant case concerns the threshold inquiry, i.e. whether appellee had invoked his right to counsel. Unlike Smith, however, the nature of appellee’s “request for counsel” and the circumstances preceding such “request” were indeed equivocal and demonstrate that, in fact, appellee did not invoke his right to counsel. We do not, therefore, cross the Edwards threshold.

Prior to July 12, 1977, the date on which appellee’s challenged confession was rendered, appellee had been interviewed by state troopers on several occasions, and on each occasion expressly waived his Miranda rights, including his right to counsel. Appellee had also been previously acquainted with his Miranda rights due to three prior arrests and convictions following guilty plea proceedings which included full colloquies at which appellee indicated that he knew and understood his rights. On July 12th, appellee was again given Miranda warnings several times and again signed written waiver forms and demonstrated a willingness to talk freely. For most of the day and at all important times that day, appellee was accompanied and advised by his wife, Virginia Hubble.

At approximately 2:00 p.m., according to the testimony of Trooper Shimko, the following occurred. Trooper Shimko asked appellee if he would be willing to give a tape-recorded statement, at which point Virginia Hubble suggested to appellee, “I think you better get a lawyer.” Appellee then stated, “I want a lawyer,” followed by, “I want a public defender.” At that point, Trooper Shimko responded:

Dave, you can call whoever you want to call. I do not believe that a public defender will come out to talk to you because you were not arrested. We are not accusing you of any crime. We’re talking about what Bob had told you. This is all we’re concerned with at this particular time, but you are willing or you’re able to call whoever you wish to call.

Notes of Testimony, Suppression Hearing, November 11, 1977 at 114a; see also N.T. at 177a (on cross-examination).

Although the trooper’s statement regarding the availability of the public defender was erroneous and potentially misleading, the clear import of his response was that appellee could contact the public defender if he wished. Appellee’s wife testified that she was aware, despite the trooper’s comments, that her husband had a right to have counsel present. N.T. at 273a-74a. It is also apparent that appellee was not misled, because he next told Trooper Shimko that he wanted to call Mr. Jack Felix, a former public defender who had represented him in his previous difficulties with the law. The trooper looked up Mr. Felix’s telephone number and appellee called this attorney’s office but was informed he was not available.

Appellee then stated his desire to call his probation officer, Mr. Dave McCool, which he did. Appellee reached Mr. McCool at his residence. McCool testified that he told appellee he did not know if a public defender would come out to the police barracks, but he encouraged appellee to call the public defender’s office. N.T. at 251a. Despite being advised to do so by both Trooper Shimko and Mr. McCool, and having every opportunity to do so, appellee did not contact the public defender’s office nor did he make or request to make any further telephone calls.

Trooper Shimko again asked appellee if he would give a taped statement, which appellee agreed to do. This taped statement did not inculpate appellee. After that statement was given, Trooper Shimko advised appellee and Mrs. Hubble that he would take them home. According to Trooper Shimko and Mrs. Hubble, they and appellee walked down the hallway with their coats on and were about to leave the barracks when appellee stated that he wanted to first speak with his wife. N.T. at 122a-123a. Appellee and Mrs. Hubble were then left alone to talk. Several times, Trooper Shimko stopped in and asked, “What are you going to do here? Do you want to go home? Do you want to talk?” N.T. at 123a.

After about forty-five minutes, Trooper Shimko and another officer told appellee and his wife that they had information placing appellee at the scene of the crime. Appellee’s wife then gave the officers an account of events that corresponded to that information. Appellee again conferred privately with his wife for approximately one-half hour until Trooper Shimko asked appellee whether he had participated in the crime. At that point, appellee gave the taped confession which the Superior Court held must be suppressed under Edwards.

Under all of these circumstances which appear of record, appellee did not invoke his right to counsel. What appellee did request was to call a particular attorney, which he did with Trooper Shimko’s assistance, and to call his probation officer, which he did. While he had full opportunity to do so, appellee did not heed the advice given him to contact the public defender’s office. Moreover, appellee initiated the events which lead to his inculpatory statement, since the prior interview had ended and appellee and Mrs. Hubble were in the process of leaving the barracks when appellee requested to stay and talk with his wife privately. These circumstances leading up to and surrounding appellee’s requests to call “a lawyer”, then Mr. Felix and Mr. McCool do not present the situation or the type of police conduct condemned in Edwards v. Arizona.

The United States Supreme Court stated in Smith v. Illinois, supra:

Our decision is a narrow one. We do not decide the circumstances in which an accused’s request for counsel may be characterized as ambiguous or equivocal as a result of events preceding the request or of nuances inherent in the request itself, nor do we decide the consequences of such ambiguity or equivocation. We hold only that, under the clear logical force of settled precedent, an accused’s post-request responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself. Such subsequent statements are relevant only to the distinct question of waiver.

105 S.Ct. at 495. Although the Court did not decide the issue, it recognized at least three approaches to the problem of the consequences of ambiguity/equivocation in an accused’s “request for counsel” taken by various jurisdictions:

Some courts have held that all questioning must cease upon any request for or reference to counsel, however equivocal or ambiguous. See e.g. People v. Superior Court, 15 Cal.3d 729, 735-736, 125 Cal.Rptr. 798, 802-803, 542 P.2d 1390, 1394-1395 (1975), cert. denied, 429 U.S. 816, 97 S.Ct. 58, 50 L.Ed.2d 76 (1976); Ochoa v. State, 573 S.W.2d 796, 800-801 (Tex.Crim.App.1978) Others have attempted to define a threshold standard of clarity for such requests, and have held that requests falling below this threshold do not trigger the right to counsel. See, e.g. People v. Krueger, 82 Ill.2d 305, 311, 45 Ill.Dec. 186, 189, 412 N.E.2d 537, 540 (1980) (“[A]n assertion of the right to counsel need not be explicit, unequivocal, or made with unmistakable clarity,” but not “every reference to an attorney no matter how vague, indecisive or ambiguous should constitute an invocation of the right to counsel”), cert. denied 451 U.S. 1019, 101 S.Ct. 3009, 69 L.Ed.2d 390 (1981). Still others have adopted a third approach, holding that when an accused makes an equivocal statement that “arguably” can be construed as a request for counsel, all interrogation must immediately cease except for narrow questions designed to “clarify” the earlier statement and the accused's desires respecting counsel. See, e.g., Thompson v. Wainwright, 601 F.2d 768, 771-772 (CA5 1979); State v. Moulds, 105 Idaho 880, 888, 673 P.2d 1074, 1082 (App.1983).

105 S.Ct. at 493, n. 3 (emphasis added).

The first approach (all questioning must cease upon any mention of counsel no matter how ambiguous or equivocal) is unduly restrictive. As the United States Supreme Court recently stated in the context of analyzing the consequences of a procedural Miranda violation, “[f]ar from establishing a rigid rule, we direct courts to avoid one....” Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222, 238 (1985). This directive is sage advice in deciding the circumstances in which an accused’s requests “for counsel” may be characterized as ambiguous or equivocal, and in determining the consequences of such characterization. To hold that every utterance of the word “lawyer” automatically erects the Edwards’ “cone of silence” around the accused, thus insulating him from all further police-initiated questioning and communication, would be far too rigid and would not serve the interests or needs of justice.

Under either of the other two approaches recognized by the United States Supreme Court, appellee’s confession need not be suppressed. Appellee initially requested “a lawyer” or “a public defender,” but then, after being advised that he could contact the public defender, requested to contact a particular attorney, and then his probation officer. With the possible exception of the erroneous statement about the public defender, which did not in fact mislead either appellee or his wife regarding appellee’s right to counsel, Trooper Shimko scrupulously honored appellee’s requests and assisted appellee in placing his telephone calls. Appellee did not attempt to contact the public defender’s office though advised and given the opportunity to do so. Neither appellee nor his wife subsequently expressed the desire to speak with an attorney. From the foregoing, I would hold that appellee’s requests did not pass the threshold level of clarity that trigger the Edwards prophylactic rule and that the subsequent conduct of the police officers following appellee’s equivocal requests demonstrates a good faith, reasonable effort to comply with appellee’s desires and to honor his right to counsel.

Moreover, were we to agree with the Superior Court that appellee’s ambiguous request invoked his right to counsel in a manner clear enough to trigger Edwards, suppression of appellee’s confessions would still be unwarranted because, under the circumstances, appellee (1) initi ated “further communication, exchanges, or conversations with the police”, and (2) knowingly and intelligently waived the right to counsel. Edwards v. Arizona, supra, 451 U.S. at 485, 486 n. 9, 101 S.Ct. at 1885 n. 9.

In Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), the defendant had stated during custodial interrogation, “I do want an attorney before it goes very much further.” The interrogation then ceased. Subsequently, while being transported to another jail, the defendant asked “Well, what is going to happen to me now?” The police officer responded that the defendant need not talk to him since defendant had requested an attorney, but then suggested that defendant take a polygraph examination. The next day, the defendant was readvised of his Miranda rights, waived them, and took the polygraph. After being told that he did not seem to be telling the truth, the defendant confessed. Id. at 103 S.Ct. 2833.

The Oregon Court of Appeals reversed defendant’s conviction “holding that [the] inquiry he made of a police officer at the time he was in custody did not ‘initiate’ a conversation with the officer, and that therefore statements by the [defendant] growing out of that conversation should have been excluded from evidence under Edwards v. Arizona.” Id. at 103 S.Ct. 2832. A majority of the United States Supreme Court reversed the Oregon court and held that Edwards did not require suppression of the confession. Justice Rehnquist wrote the plurality opinion (joined by the Chief Justice, Justice White and Justice O’Connor; Justice Powell agreed that Edwards did not require suppression of the confession and filed a concurring opinion) in which he held that Edwards had been misapplied because the defendant had indeed initiated further “communication, exchanges, or conversations with the police,” stating:

There can be no doubt in this case that in asking, “Well, what is going to happen to me now?”, respondent “initiated” further conversation in the ordinary dictionary sense of that word. ...

Although ambiguous, the respondent’s question in this case as to what was going to happen to him evinced a willingness and a desire for a generalized discussion about the investigation; it was not merely a necessary inquiry arising out of the incidents of the custodial relationship. ... On these facts we believe that there was not a violation of the Edwards rule.

Since there was no violation of the Edwards rule in this case, the next inquiry was “whether a valid waiver of the right to counsel and the right to silence had occurred, that is, whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities.” Edwards v. Arizona, 451 U.S., at 486, n. 9, 101 S.Ct., at 1885, n. 9. As we have said many times before, this determination depends “upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused.”

Id. at 103 S.Ct. 2835 (citations omitted). Justice Rehnquist further stated that the “initiation of further conversation” requirement of Edwards was “designed to protect an accused in police custody from being badgered by police officers in the manner in which the defendant in Edwards was.” Id. at 103 S.Ct. 2834. Justice Powell agreed that the defendant’s confession should not have been suppressed under Edwards, but filed a concurring opinion because he would not apply the majority’s two-step analysis in waiver of right to counsel cases. Justice Powell would simply apply the Zerbst-waiver standard (Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)) to determine whether a defendant’s waiver of his right to counsel was knowing and intelligent, and would consider the fact of initiation of subsequent conversation as one of the factors to be considered. 103 S.Ct. at 2836-38. Justice Powell found that the defendant had made a valid waiver of his right to counsel. Id.

Applying Oregon v. Bradshaw to the instant case, it is apparent that Edwards does not require suppression of appellees’ confessions. As set forth more fully above, appellee initiated the events which culminated in his confessions. Slip opinion at 12-13. Rather than return home, appellee asked to speak in private with his wife at the police barracks which he did at length, despite being asked several times whether he wanted to go home or talk. Under the circumstances, appellee was hardly “badgered by police officers in the manner in which the defendant in Edwards was”; instead, appellee “initiate[d] further communication, exchanges, or conversations with the police.” Oregon v. Bradshaw, supra at 103 S.Ct. 2834.

Since appellee initiated further communication, we must examine the totality of the circumstances to determine whether there was a knowing, intelligent and voluntary waiver of his right to remain silent and his right to counsel. Id. at 2835, 2838; Johnson v. Zerbst, supra. In examining the totality of the circumstances surrounding a confession, this Court has looked to a myriad of factors including the duration and methods of interrogation, the conditions of detention, the manifest attitude of the police toward the accused, the accused’s physical and psychological state, and “all other conditions present which may serve to drain one’s powers of resistance to suggestion and undermine his self-determination.” Commonwealth v. Crosby, 464 Pa. 337, 346 A.2d 768 (1975). Regarding the validity of a waiver of the right to counsel, once a suspect has ambiguously requested to contact an attorney, a factor is, of course, whether the suspect or the police have initiated subsequent conversation leading to the incriminating statement. Commonwealth v. Youngblood, 453 Pa. 225, 307 A.2d 922 (1973); Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (1980). However, this is only one factor, albeit an important one, in the evaluation of whether the right to counsel was knowingly, intelligently and voluntarily waived. Id.

Based on the totality of the circumstances, we affirm, as did the Superior Court, the lower court’s findings and conclusion that appellee knowingly, voluntarily and intelligently waived his right to counsel.

Finally, we note that, even if we considered appellee’s first statement on July 12, 1977 to be inadmissible under Edwards, the introduction of that non-inculpatory statement against him at trial was harmless error and his other challenged statements of July 12th and 13th would nevertheless remain admissible. The first statement was not inculpatory and merely reiterated information that appellee had previously given the state troopers. Following that statement, the troopers ended the interview and began to take appellee and his wife home. Appellee thereafter initiated the subsequent events which lead to his second statement of July 12th and his third statement of July 13th — his inculpatory confessions.

The taint of any “illegality” associated with the first statement is thoroughly dissipated by this break in the casual connection between the first and the second and third statements, demonstrating that appellee’s confessions were not the product of exploitation of the earlier “illegality” and were uncoerced acts of free will. Commonwealth v. Chacho, 500 Pa. 571, 580-82, 459 A.2d 311 (1983) (and see cases cited therein) (“We conclude that appellant’s statement was an act of free will sufficient to break the casual connection between his initial, illegally obtained statement and his subsequent statements. Any taint thus having been purged, the latter statements were properly admitted.”).

In Oregon v. Elstad, supra, the defendant had rendered a statement that was ruled inadmissible because of the failure to administer Miranda warnings, although the statement was otherwise voluntary and not coerced. In holding that subsequent statements rendered after full Miranda warnings were administered were admissible despite the technical illegality of the first unwarned statement, the United States Supreme Court stated:

Far from establishing a rigid rule, we direct courts to avoid one; there is no warrant for presuming coercive effect where the suspect’s initial inculpatory statement, though technically in violation of Miranda, was voluntary. The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative. We find that the dictates of Miranda and the goals of the Fifth Amendment proscription against use of compelled testimony are fully satisfied in the circumstances of this case by barring use of the unwarned statement in the case in chief. No further purpose is served by imputing “taint” to subsequent statements obtained pursuant to a voluntary and knowing waiver. We hold today that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.

470 U.S. at —, 105 S.Ct. at 1298, 84 L.Ed.2d at 238. Thus, even assuming arguendo that appellee’s first statement was in technical violation of Edwards, his subsequent statements were not “tainted” by that earlier “illegality,” were “obtained pursuant to a knowing and intelligent waiver” and were admissible.

For the foregoing reasons, we hold that the Superior Court erred in its determination that appellee was entitled to a new trial because of the introduction of his statements of July 12-13, 1977 against him at trial. Accordingly, we reverse the order of the Superior Court which vacated the judgment of sentence and remanded for a new trial, and we remand this case to the Superior Court for disposition of appellee’s remaining allegations of error.

PAPADAKOS, J., joins in this opinion. McDERMOTT, J., joins in this opinion and files a concurring opinion. FLAHERTY, J., files a concurring opinion. NIX, C.J., files a concurring and dissenting opinion. HUTCHINSON, J., files a dissenting opinion. ZAPPALA, J., files a dissenting opinion.

This case was reassigned to this author on September 15, 1985.

1

. The macabre happenings of this multiple homicide are set forth more fully in Commonwealth v. Robert Kelsey Hubble, 314 Pa.Super. 99, 460 A.2d 784 (1983) and Commonwealth v. Scarborough, 313 Pa.Super. 521, 460 A.2d 310 (1983) and need not be repeated herein. In these cases, the convictions of appellee's co-defendants, who were separately tried, were affirmed by the Superior Court. This Court denied co-defendants’ petitions for allowance of appeal on October 12, 1983.

2

. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

3

. Because of pervasive pretrial publicity in this case and that of appellee’s co-defendants, this Court ordered a change of venue on October 13, 1977.

4

. The Commonwealth vigorously argues that we should reverse the determination of the Superior Court, affirming that of the suppression court, that appellee had been in custody when he rendered the challenged statements of July 12, 1977. The Commonwealth states: "No formal arrest occurred nor was there any restraint on [appellee’s] freedom associated with a formal arrest. No coercive atmosphere was present and a reasonable person could not have concluded that his freedom of action was being restricted." Brief for appellant at 35. The argument is predicated primarily on the fact that appellee and his wife voluntarily went with police to the barracks, knew they were free to leave at any time (according to the troopers’ testimony), and in fact were in the process of being taken home at one point when they decided to stay and, eventually, confess.

While this argument is not without merit it emphasizes the factors on the “non-custodial" side of the ledger to the exclusion of the factors on the "custodial” side. While this Court perhaps might have reached a different conclusion based on these factors, the suppression court’s conclusion that appellee had been in custody is supported by record evidence, and the Superior Court, therefore, properly affirmed.

5

. The United States Supreme Court has recently determined that its decision in Edwards v. Arizona is to be retroactively applied to cases that were on direct appeal in the state courts at the time of that decision on May 18, 1981. Shea v. Louisiana, 470 U.S. 51, 105 S.Ct. 1065, 84 L.Ed.2d 38 (1985). But cf. Solent v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984) (Edwards is not to be applied retroactively to cases pending collateral review after conviction is made final following affirmance on direct appeal).