Commonwealth v. Hill

DISSENTING OPINION BY

PANELLA, J.:

Because I find the majority’s conclusion that the post-polygraph interview consti*1098tuted a “new interrogation,” which exceeded the scope of the original Miranda warnings, to be in error, I am compelled to dissent. Rather than reverse, I would affirm the decision of the PCRA court, which found Hill’s counsel was not ineffective for failing to file a motion to suppress Hill’s post-polygraph statement.

It is well settled in Pennsylvania that a defendant’s statement or confession given after having been advised that the defendant had failed a polygraph test is admissible in evidence. See Commonwealth v. Schneider, 386 Pa.Super. 202, 562 A.2d 868 (1989), aff'd, 525 Pa. 598, 575 A.2d 564 (1990). Established case law has been consistently applied by the courts of our state and the federal courts whenever a polygraph has been used as an investigatory technique:

“It has long been the rale in this Commonwealth that a statement given after being advised that one has failed a lie detector may be admitted into evidence.” Commonwealth v. Watts, 319 Pa.Super. 179, 184, 465 A.2d 1288, 1291 (1983), aff'd, 507 Pa. 193, 489 A.2d 747 (1985). See: Commonwealth v. Jones, 341 Pa. 541, 19 A.2d 389 (1941); Commonwealth v. Hippie, 333 Pa. 33, 3 A.2d 353 (1939). See also: Commonwealth v. Hughes, 521 Pa. 423, 443 n. 8, 555 A.2d 1264, 1274 n. 8 (1989). See generally: Annot., Admissibility in Evidence of Confession Made by Accused in Anticipation of, During, or Following Polygraph Examination, 89 A.L.R.3d 230 (1979). In Commonwealth v. Smith, 317 Pa.Super. 118, 463 A.2d 1113 (1983), the Superior Court said:
The polygraph has been acknowledged by the courts of this Commonwealth to be a valuable tool in the investigative process. See: Commonwealth v. Hernandez, 498 Pa. 405, 415, 446 A.2d 1268, 1273 (1982); Commonwealth v. Smith, 487 Pa. 626, 631, 410 A.2d 787, 790 (1980); Commonwealth v. Blagman, 458 Pa. 431, 435-436, 326 A.2d 296, 298-299 (1974). Its use does not per se render a confession involuntary. Commonwealth v. Jones, 341 Pa. 541, 548, 19 A.2d 389, 393 (1941); Commonwealth v. Hipple, 333 Pa. 33, 39, 3 A.2d 353, 355-356 (1939). See: Thompson v. Cox, 352 F.2d 488 (10th Cir.1965); United States v. McDevitt, 328 F.2d 282 (6th Cir.1964).

Schneider, 562 A.2d at 870-871. Furthermore, a confession is not involuntary merely because it was made in anticipation of, during, or following a polygraph examination. Commonwealth v. Smith, 317 Pa.Super. 118, 463 A.2d 1113, 1115 (1983).

The majority cogently begins its analysis with the United Supreme Court’s decision in Wyrick v. Fields, 459 U.S. 42, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982) (per curiam), in which the Supreme Court ruled that the question of whether the defendant, Fields had waived his right to counsel at a post-polygraph examination had to be based upon the “totality of the circumstances.” In Wyrick, the Supreme Court ultimately decided that, despite the fact that the polygraph examination had been discontinued and Fields was asked to explain the test’s unfavorable results, new Miranda warnings prior to Field’s post-polygraph examination were unnecessary. 459 U.S. at 47-48, 103 S.Ct. 394. Notably, the Supreme Court stressed that although the Appeals Court stated that there was no indication either Fields or his attorney anticipated that Fields would be asked questions following the examination, “it would have been unreasonable for Fields and his attorneys to assume that Fields would not be informed of the polygraph readings and asked to explain any unfavorable result.” Id., at 47, 103 S.Ct. 394 (emphasis added).

Despite this recognition, and the PCRA court’s finding that the pre-polygraph and *1099post-polygraph interviews were part of the entire polygraph process, see Order, 12/27/06, at ¶ 17, Hill argues that the post-polygraph examination somehow constituted a “new interrogation” of which Attorney Goldstein was unaware and thus exceeded the scope of his waiver of counsel pursuant to the Miranda warnings given prior to the polygraph examination. I cannot agree with this proposition, especially in light of Attorney Goldstein’s acknowledgment that it is “always the case” that a post-polygraph interview is conducted in which the results are discussed with the person interviewed. See N.T., 4/25/06 at 50.

Instead, I would find the oral and written Miranda warnings given prior to the polygraph examination sufficiently advised Hill of his rights and extended to the post-polygraph interview. I can find no fault by the investigatory actions of the police when Hill had been advised of his right to counsel, counsel was present, counsel then voluntarily left for tactical reasons which he found were beneficial to his client, and when the post-polygraph interview began, Hill made no request for his counsel to be present. The specific findings of the PCRA court, all supported in the record, included:

(9) On Saturday, April 25, 1998, Detective Joseph Steenson of the Derry Township Police Department administered a polygraph examination to the Defendant. Prior to the examination, Detective Steenson advised the Defendant of his Miranda rights.
(10) Immediately prior to the administration of Miranda warnings, the polygraph examination and the post-test interview, the Defendant had the opportunity to consult in person with his private counsel, Herbert Corky Goldstein, Esquire, an experienced attorney. After that consultation, the Defendant agreed to submit to questioning by the police as part of the polygraph process.
(11) The Defendant executed a written waiver of his Miranda rights, although that written waiver cannot presently be located.
(12) The Defendant submitted to a polygraph examination and was informed by Detective Steenson that he had failed the examination. Immediately after the polygraph examination, Detective Steen-son and Lieutenant Daniel Kelly interviewed the Defendant. The Defendant made incriminating statements in this interview. The statements made to Detective Steenson and Lieutenant Kelly were part of the interview to which the Defendant submitted as part of the Miranda waiver.
(13) The Defendant never invoked his right to silence or to counsel during the interview on April 25,1998.
(14) The police officers made no threats or promises to the Defendant before or during the interview.
(15) Attorney Goldstein anticipated that the polygraph process would include a pre-test interview and a post-test interview, as was customary in such cases.
(16) Attorney Goldstein did not insist on being present for all aspects of the polygraph process as he was aware that if he did so, the polygraph would not be administered. Attorney Goldstein determined that taking the polygraph was in his client’s best interests based on the Defendant’s assertion of innocence, and the facts of the case as outlined by the Defendant to his said counsel.
(17) The pre-test and post-test interviews by Lieutenant Kelly and Detective Steenson were part of the polygraph process.

Order, 12/27/06, at 3^4.

In the words of Hill’s current counsel: “Appellant concedes that his rights were *1100waived, to a point, under the 5th Amendment as pronounced in Miranda.” Brief for Appellant, at 19. Hill’s argument then struggles to stretch the meaning of the 6th Amendment right to counsel in a case where there has been an undisputed waiver combined with actions of trial counsel which were knowledgeable, voluntary, and performed for tactical reasons. I find the analysis as propounded by Hill to be. unpersuasive. In the words of retired Judge Zoran Popovich: “This would truly stretch the fibers of the parchment upon which the Constitution is written in giving refuge to those not entitled to the mantle of protection afforded by such a document.” Commonwealth v. Lemanski, 365 Pa.Super. 332, 529 A.2d 1085, 1099 (1987) (Popovich, J., concurring and dissenting).

Hill’s statements were voluntarily given and were admissible at trial. Because an attempt to suppress these statements would have been meritless, counsel cannot be deemed ineffective for failing to raise this issue at trial. See Commonwealth v. Smith, 606 Pa. 127, 145, 995 A.2d 1143, 1153 (2010), cert. denied, — U.S. —, 131 S.Ct. 518, 178 L.Ed.2d 382 (2010) (counsel cannot be deemed ineffective for failing to raise meritless claim). Accordingly, I respectfully dissent.