Commonwealth v. Peters

373 A.2d 1055, 473 Pa. 72, 1977 Pa. LEXIS 693

• Court: Supreme Court of Pennsylvania
• Decided: June 3, 1977
• Docket: 116
• Status: Published

Opinions

OPINION

EAGEN, Chief Justice.

Michael Peters was convicted by a jury of aggravated assault and battery, assault and battery, conspiracy to commit assault and battery, conspiracy to commit aggravated assault and battery, and voluntary manslaughter. Following the denial of post-verdict motions by the court en bane of the Court of Common Pleas of Bucks County, judgment of sentence of not less than two nor more than five years was imposed on the manslaughter conviction. Judgments of sentence on the other convictions were suspended. This appeal followed.¹

Peters complains: 1) that his right against being put twice in jeopardy was violated when he was retried and convicted following the sua sponte declaration of a mistrial; 2) that the trial court erred in refusing to suppress evidence of three statements given by Peters to prosecution officials and evidence of a “reenactment” of the killing provided by Peters; and, 3) that the trial court erred in giving what is commonly referred to as an “accomplice charge.”

We need not reach the merits of Peters’ first complaint because the issue is not properly preserved for review. Peters failed to plead double jeopardy prior to his second trial, and we now hold that such a failure constitutes a waiver of the issue under the circumstances presented.²

While we have held no objection is necessary to preserve such an issue where a trial court declares a mistrial sua sponte, Commonwealth v. Bartolomucci, supra; accord Commonwealth v. Fredericks, 285 Pa.Super. 78, 340 A.2d 498 (1975); Commonwealth v. Abruzzese, supra, we created this exception to the ruling in Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974) because “ ‘the Perez [United States v. Perez, 9 Wheat (22 U.S.) 579, 6 L.Ed. 165 (1824)] doctrine of manifest necessity stands as a command to trial judges not to’ declare a mistrial absent manifest necessity.” Commonwealth v. Bartolomucci, supra, 468 Pa. at 346, 362 A.2d at 238 quoting from United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971). [Emphasis in original.] No similar consideration exists to excuse the failure to raise the issue prior to the commencement of the second trial. See, e. g., Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1971); Commonwealth v. Newsome, 462 Pa. 106, 337 A.2d 904 (1975); Commonwealth v. Clair, supra. Furthermore, all of the considerations which justify a finding of waiver of other issues in a pretrial context are equally applicable to a double jeopardy claim. For example, by requiring the issue to be raised pretrial, trial courts will not have to waste time and energy conducting proceedings in which no conviction and judgment of sentence may be validly finalized.³

Accordingly, the issue is waived.

Peters next complains the trial court erred in failing to grant his motion to suppress and the court en banc erred in sustaining that ruling. The evidence which the court refused to suppress included three statements given by Peters to prosecution authorities and testimony recounting a reenactment by Peters of the events which occurred at the time of the killings.

In evaluating his complaint, we consider only the evidence presented by the Commonwealth and so much evidence for the defense, as fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976). Only one witness testified at the suppression hearing, namely John Rice, a detective with the District Attorney’s office in Bucks County. His testimony established the following:

The body of Vincent Motto was found late in the day on July 24, 1969 at or near the water’s edge of the Delaware River at a remote and deserted spot known as the “Cove” in Tullytown, Bucks County. An investigation ensued and authorities learned that Peters and other persons, including Motto, had been at Peters’ apartment on July 22 or 23, 1969. The police proceeded to interview these persons. Each was requested to come to the Bristol Township Police Station to be interviewed. Peters, pursuant to the request, appeared there voluntarily on July 30, 1969. The police did not at that time suspect Peters was involved in Motto’s death and he was free to leave the police station at any time he desired. No warnings of constitutional rights were given. The interview was recorded on tape. It was subsequently transcribed and was read into evidence at trial. This statement [hereinafter referred to as C-l] recounted in substance the following:

Peters and other persons met Motto at a bar in Bristol Township late in the day on July 22, 1969. Peters and his group left and went to Peters’ apartment. Motto accompanied by another person thereafter arrived at the apartment, but both left after a short time. Motto returned alone a short time later with a gun which he “flashed . . . around.” William Simmons requested the gun and Motto gave it to him. Simmons unloaded the gun and returned it to Motto. Motto reloaded it and again “flashed [it] around.” Simmons requested that Motto leave. Motto left escorted by Simmons, and Peters followed them to the doorway where he stood and watched Motto go to the parking lot area to a “broken down” car. Peters and Simmons then returned to the apartment. Later in the evening or in the early morning hours of July 23, 1969, Peters went to Motto’s apartment and knocked on the door some five times in order to get beer, but Motto did not answer.

After this interview, Peters left the police station. The police investigation continued. Peters was interviewed by the police for the second time on March 8, 1971. This interview was prompted by information received by the police (on or about the same date) from one Frank Sullivan ⁴ that Peters had information concerning Motto’s death.

The circumstances of this interview were as follows: . The police phoned Peters and requested him to come to the courthouse. When Peters arrived he spoke with a receptionist who called Rice. Rice spoke with Peters in the hallway and informed him that Sullivan was attempting to obtain his release from prison on reduced bail and to help accomplish this, he had informed Rice that Peters had information about Motto’s death. Rice then told Peters that the information received from Sullivan was why he wished to speak with him. Rice also said to Peters that “The most that would happen to him would be that he would be picked up or held as a material witness on dollar bail.” ⁵ [Emphasis added.] Rice could not recall whether this remark was made prior to or subsequent to the interview of March 8, 1971, but since the Commonwealth has the burden of proof, we will assume the remark was made prior to the interview.

Peters and Rice went into an office where Ward Clark, the District Attorney, John McHugh, a court stenographer, and a state trooper were present. Clark conducted the interview which was transcribed. Peters was warned of his constitutional rights before the questioning began. Peters indicated he understood and was willing to answer questions. Immediately following the interview Peters was placed under arrest as a material witness and then released on nominal bail.⁶

The interview began at 5:15 p. m. and from it a second statement [hereinafter: C-2], which was in the form of a sworn deposition, was obtained from Peters and it recounted the following:

Peters met Motto for the first time at a bar about one week before his body was found. Peters again met Motto at the same bar at about 11:00 p. m. a couple of days prior to his body being discovered. Motto was accompanied by another person and Peters was with a group, including Simmons. Peters and Simmons left first and went to Peters’ apartment, arriving at about midnight. At about 1:00 a. m., Motto, accompanied by his friend, arrived at Peters’ apartment and was invited in to “drink some beer.” Motto’s friend was the first to depart and was followed by Motto at about 2:30 a. m. or 3:00 a. m. During the visit a few “small squabbles” occurred. Motto returned about fifteen or twenty minutes later and began to “flash around a gun and a knife.” An argument resulted between Motto and Simmons. In Peters’ opinion, he, Motto and Simmons were intoxicated but, despite having taken other drugs earlier in the day, they were not under the influence of drugs.

Thereafter, Peters, Simmons, and Motto went to the Cove in Simmons’ car. Peters and Simmons told Motto there was a party taking place there. Upon arriving and finding no one else there, the three were “horsing around” until an argument began between Simmons and Motto. Motto then went for a swim. Peters thought Motto was about to drown so Peters swam out to him and pulled him back to the shore. Motto was lying half on the beach and half on the shore when he began referring to Peters and Simmons in vulgar terms. Simmons told Motto to “shut up,” but Motto kept “mumbling and talking, and he started hollering.” Simmons picked up a rock and hit Motto on the head with it rendering him unconscious. Peters and Simmons remained at the Cove for about a half-hour smoking a few cigarettes. Peters then walked over to look at Motto who was still unconscious but was not bleeding. Peters and Simmons then left Motto and returned to the apartment where most of the other guests had “passed out.”

Peters said the only one told of the incident was Sullivan and this occurred about a year prior to giving the C-2 statement. When asked why he was now willing to speak with authorities, Peters responded:

“A. ... I am tired of hearing about it.

“Q. From whom, please?

“A. Well, just general people talking about it, and my mind didn’t rest right, and I don’t sleep, and I just figured it would be a good time to get it out.”

Peters then stated he would testify against Simmons in court.

Based on this information Simmons was arrested on March 12, 1971 and he gave a statement to the police. After securing Simmons’ statement, the police filed a criminal complaint against Peters charging him with Motto’s murder; however, Peters was not made aware of the existence of this complaint until he was taken into custody on March 16th.

On March 16, 1971, Peters was requested by Rice to meet him at the State Police Barracks in Trevase and to go from there to the Cove to reenact his version of the incident as given in the C-2 statement. Sullivan, who had been released on bail, accompanied Peters to the barracks on the 16th, although the authorities had not requested Sullivan to do so. Peters, Sullivan, Detective Spewak, and Rice then went by car to the Cove. Upon arriving there at about noon, Spewak advised Peters of his constitutional rights and Peters indicated he wished to waive them. Peters appeared in normal condition on the 16th with the exception of a limp. Rice also testified that he may have again mentioned to Peters, while at the Cove on March 16, 1971, that he was a material witness and would be held as such without bail.⁷ Peters then reenacted the events as described in the C-2 statement. [Hereinafter: Reenactment.]

Following the reenactment, Rice asked Peters if he was willing to take a polygraph examination and Peters indicated he was. The four returned to the courthouse for the purpose of administering the examination. Peters, Sullivan, and Spewak went to Rice’s office, while Rice went to locate Mr. Hayman, a polygraph examiner. Spewak then came out into the hall and met Rice. Spewak told Rice that Peters had something to tell him. Rice went into the office at about 2:30 p. m. and Peters then stated he had “something he might as well tell now, [which] he had not told [the authorities] before.” Rice asked what it was, and Peters said: “While he and Mr. Simmons and Mr. Motto were at the Cove back in July of 1969, he [Peters] also struck Mr. Motto about the head with his fist.” Peters was not rewarned of his rights while at the courthouse. [Hereinafter: C-3.] This statement was not recorded.

Rice contacted Clark and Clark ordered Peters arrested. Peters was then arrested. Rice testified that Peters never became a suspect until March 16, 1971 when he stated he struck Motto.

Peters argues C-l should have been suppressed because he was not advised of his constitutional rights prior to making the statement. In Commonwealth v. Fisher, 466 Pa. 216, 352 A.2d 26, 28 (1976), we said:

“The law is clear that any admissions made by a criminal defendant, which are not preceded by Miranda warnings and which are the product of custodial interrogation, should be suppressed and precluded from evidentiary use at trial.

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“In determining if questioning [is] ‘custodial interrogation,’ the test is not whether there was a prior formal arrest or whether the police detective intended to effect an arrest. ‘ [T] he test for custodial interrogation “does not depend upon the subjective intent of the law enforcement officer-interrogator, but upon whether the suspect is physically deprived of his freedom of action in any significant way or is placed in a situation in which he reasonably believers] that his freedom of action of movement is restricted by such interrogation . . .’ Commonwealth v. O’Shea, 456 Pa. 288, 292, 318 A.2d 713, 715 (1974), cert. denied, 419 U.S. 1092, 95 S.Ct. 686, 42 L.Ed.2d 685, citing Commonwealth v. Romberger, 454 Pa. 279, 283, 312 A.2d 353, 355 (1973), and Commonwealth v. Marabel, 445 Pa. 435, 441, 283 A.2d 285 (1971).” [Emphasis deleted. Emphasis added.]

Given the events and circumstances surrounding C-l, there can be no doubt that Peters was not subjected to custodial interrogation. He came voluntarily to the Bristol Police Township Station to be interviewed during the normal course of an investigatory fact-finding process. Although he was requested to do so, he was not “deprived of his freedom of action” nor was he placed in a situation where he could have reasonably believed “his freedom of movement [was] restricted.” Furthermore, we are unwilling to adopt a requirement that warnings must be given merely because the police request an interview and it occur at a police station. Accordingly, the admission into evidence of C-l did not constitute error. See 31 A.L.R.3d 565 § 15.

Peters argues C-2, the testimony recounting the reenactment, and C-3 should have been suppressed because Rice cajoled Peters by telling him “the most that would happen to him would be that he would be picked up or held as a material witness on dollar bail” or “without bail” and thus Peters’ waivers of his rights on March 8th and March 16th were ineffective, i. e., not voluntarily given. The suppression court’s opinion rejected this argument by stating: “Collateral conversations between [Peters] and the district attorney or police preceding or incidental to C-2 pertaining to the subjects either of [Peters] being held as a material witness and release on nominal bail . . . were not coercive and did not procure or bring about [Peters] giving the statement C-2 involuntarily or against his will.” That court ruled the evidence was admissible, but did not specifically address the effectiveness of Peters’ waiver of his right to remain silent and other constitutional privileges.

We are not persuaded that C-2, the evidence of the reenactment, and C-3 should have been admitted into evidence, and accordingly, reverse the judgment of sentence and grant a new trial.⁸

Initially, we note that the Commonwealth does not argue Miranda warnings were not required before questioning Peters on March 8th and 16th. If they were not required, then the effectiveness of Peters’ waivers would be immaterial. But under the circumstances presented, we believe such warnings were required.

Prior to questioning Peters on March 8th, the authorities learned from Sullivan that Peters had information about Motto’s death. They also knew that Peters had previously stated in his C-l statement that he had no such knowledge. Furthermore, Peters was told by Rice that Sullivan had said Peters had information concerning Motto’s death. Peters was warned of his rights and then questioned by the district attorney in the presence of a detective and state trooper, and his statement was transcribed by a court stenographer. Similar circumstances existed on March 16th, and most importantly, a criminal complaint against Peters was filed on March 12th.

It is thus apparent to us that, considering all of the circumstances, Peters had become the “focus” of the investigation, Escobedo v. Illinois, 378 U.S. 478, 490, 84 S.Ct. 1758, 1765, 12 L.Ed.2d 977 (1964), and he could have reasonably believed his freedom of movement was restricted by the authorities’ request for interviews and by the interviews on both March 8th and March 16th. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).⁹ The authorities knew Peters was one of the last persons to have seen Motto alive, see Commonwealth v. Romberger, supra; they knew Peters had more information that he had given them in 1969 and so informed Peters on March 8th; they did, in fact, warn him of his rights on both occasions; and, they questioned him in a manner “ ‘. . . calculated to, expected to, or likely to, evoke admissions.’ ” Commonwealth v. Yount, 455 Pa. 303, 309, 314 A.2d 242, 245 (1974) quoting Commonwealth v. Simala, 434 Pa. 219, 226, 252 A.2d 575, 578 (1969).

Since Miranda warnings were required, the statements and the testimony recounting the reenactment should not have been admitted into evidence unless the Commonwealth carried its burden of showing Peters effectively, i. e., knowingly, intelligently, and voluntarily, waived the rights about which he was warned. Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975). We cannot agree that the Commonwealth carried its burden of showing the waivers were voluntarily given on either the 8th or 16th.

It is well-established that a confession induced by a promise of immunity from a person in apparent authority to perform the promise is involuntary. See, e. g., Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973). See Wharton, Criminal Evidence (13th ed. 1973). A fortiori, a waiver of rights cannot be considered voluntary where it is induced by promises of immunity from such a person. Instantly, Rice, a detective with the District Attorney’s office, had such apparent authority. Furthermore, he adopted the remark of defense counsel, that “the most that would happen to” Peters if he provided information “would be that he would be picked up or held as a material witness on dollar bail,” as having been made by him on March 8th. The remark promised immunity to Peters by implying he would not be prosecuted. Compare Commonwealth v. Cornish, 471 Pa. 256, 370 A.2d 291 (1977). The promise or substance of it was repeated on March 16th. No explanation of this promise was provided by the Commonwealth. Accordingly, we cannot conclude the Commonwealth carried its burden of showing the waivers on March 8th and 16th were voluntary. See Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974). As the Supreme Court of the United States stated in Miranda v. Arizona, supra 384 U.S. at 476, 86 S.Ct. at 1629 (1966):

“. . . any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege.”

While it is true that Peters was properly advised of his rights on both occasions, the promise which preceded each set of warnings undoubtedly operated “to undercut the effect of the warning [s] by offering an inducement [for Peters to waive his rights and] to speak.” Commonwealth v. Singleton, 439 Pa. 185, 191, 266 A.2d 753, 756 (1970). See Commonwealth v. Jones, supra. Cf. Commonwealth v. Nathan, 445 Pa. 470, 285 A.2d 175 (1971); Commonwealth v. Romberger, supra.

Accordingly, the judgment of sentence is reversed and a new trial is granted.

JONES, former Chief Justice did not participate in the consideration or decision of this case. ROBERTS, J., filed a concurring opinion. POMEROY, J., filed a concurring opinion. NIX, J., filed a concurring opinion. MANDERINO, J., filed a dissenting opinion.

1 . Peters did not appeal the convictions on which judgments of sentence were suspended.

2 . While the Commonwealth relies heavily on a theory of waiver which we rejected in Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976), it also cites numerous examples of cases of pretrial waiver including Commonwealth v. Abruzzese, 231 Pa.Super. 157, 331 A.2d 821 (1974), which are in accord without ruling today. But in any event waiver in this context is a matter of proper judicial administration and, even if the Commonwealth did not argue pretrial waiver, we may raise the issue sua sponte in order to advance that interest.

3 . Our ruling is in complete accord with Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977), wherein we held that pretrial denial of relief on this basis is appealable.

4 . Sullivan was in jail on unrelated charges at the time.

5 . The relevant testimony is as follows:

By Defense Counsel:

“Q. Then, didn’t you also tell Peters on March 8th that the most that would happen to him would be that he would be picked up or held as a material witness on dollar bail?

“A. On March 8th?

“Q. Yes.

“A. After discussing it, I believe I did tell him this, yes.

“Q. And prior to the . statement, is that correct?

“A. I don’t recall whether it was prior or after, but I believe I did mention it to him on March 8th.”

6 . The record is not precise with regard to whether Peters was arrested as a material witness on March 8th. During direct examination, the following occurred:

“Q. [Referring to March 8, 1971.] And at the end of the questioning, was he free to go home?

“A. Yes.

“Q. And did he, in fact, leave?

“A. Yes, he did.

“Q. And at no time while the statement was being taken or on this day, was he placed under arrest?

“A. No, he was not.”

During cross-examination, the following occurred:

“Q. Now, following the statement [of] March 8th, was Mr. Peters arrested as a material witness?

“A. I believe he was. I believe so. I am not sure.”

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“The Court: I am completely confused now. Didn’t you say a while ago, Mr. Rice, that Simmons, I mean Peters was arrested on March 8th as a material witness?

“A. I believe, your Honor. I am not completely sure.

“The Court: Am I correct in assuming that he was released on bail of some kind at least, or else he wouldn’t have appeared [see infra] later on March 16th?

“A. Yes, he was.”

No specific findings of facts were made by the suppression court. Under the circumstances, we conclude Peters was arrested as a material witness and released on nominal bail.

7 . During cross-examination, the following occurred:

“Q. Now, did you again say to him on March 16, 1971, that if he gave you additional information, that he would be held as a material witness at a $1.00 bail?

“A. On March 16th?

“Q. Yes, on March 16th?

“A. No, I believe on the day, I believe he was told that he was going to be held without bail.

“The Court: I am completely confused now. Didn’t you say a while ago, Mr. Rice, that Simmons, I mean Peters was arrested on March 8th as a material witness?

“A. I believe, Your Honor. I am not completely sure.

“The Court: Am I correct in assuming that he was released on bail of some kind at least, or else he wouldn’t have appeared later on March 16th?

“A. Yes, he was.

“The Court: Now, take it from there . . .”

Defense Counsel:

“Q. All right. Do you recall having any additional conversation at the cove with Mr. Peters regarding his status as a material witness?

“A. I don’t believe so, no.

“Q. You did tell him, did you not, if he refused to take the polygraph—

“A. May I interrupt just a moment. I may have. I may have when he was reconstructing the crime scene . . . down there, I may have mentioned the fact as a material witness, because, as our point of view, that’s all he was at this point. We did not arrest — we did not consider him a suspect until he admitted to us in our office he beat this man about the head with his fist.”

8 . Because we reverse on this basis it is unnecessary to address Peters’ third assignment of error. We have discussed his first assignment of error because, if Peters were successful as to this, a discharge would be necessary. We have discussed the admissibility of C-l in order to advance the efficient administration of justice. Commonwealth v. Smith, 470 Pa. 219, 368 A.2d 272 (1977).

9 . While Rice’s testimony that Peters did not become a suspect until March 16th is relevant, though not determinative, it cannot under the facts presented be given any weight since Rice signed a criminal complaint against Peters on March 12th.