Commonwealth v. Triplett

POMEROY, Justice

(concurring).

I agree that the Commonwealth’s use for impeachment purposes at trial of the particular incriminating statements here involved, which had been obtained from appellant by unconstitutional means, constituted a violation of Lawrence Triplett’s privilege against self-incrimination. I therefore concur in the order of the Court. In my view, however, this result is compelled by the Fifth Amendment of the Constitution of the United States, for I do not find that Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) is instantly controlling. *250Since I see no need to base the Court’s decision on a rejection of Harris, there is, by the same token, no need to premise it on the Constitution of Pennsylvania.

Review of the facts of this case together with the grounds upon which appellant’s statements were suppressed by the trial court, reveals the inapplicability of Harris. At issue before the suppression court were two sets of incriminating statements which appellant had made to the police. The first set of admissions was elicited after the police had given appellant, a Philadelphia police officer, the so-called “Charter warnings” as required by section 10-110 of the Philadelphia Home Rule Charter.1 In Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L.Ed.2d 562 (1967), the Supreme Court of the United States held that incriminating statements made by a police officer who had received statutory warnings similar to those prescribed by the Philadelphia Charter were involuntary and hence inadmissible in a state criminal proceeding against him. The constitutional vice in such warnings is that they afford an accused the intolerable and inherently coercive option between the giving of testimony which may be incriminating, on the one hand, and forfeiture of his job with the governmental unit which employs him on the other hand. “The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent.” Garrity v. New Jersey, supra at 497, 87 S.Ct. at 618. “Where the choice is ‘between the rock and the whirlpool’, duress is inherent in deciding to ‘waive’ one or the other.” Ibid, at 498, 87 S.Ct. at 619. So in the instant case, the Charter warnings make the price of invoking the privilege not to be a witness against oneself — a privilege guaranteed by the Fifth Amendment of the federal constitution — the sacrifice of one’s job with the City of Philadelphia.

*251The suppression court below, in reliance upon Garrity, held Triplett’s initial statements, given directly after the Charter warnings, to be involuntary and ordered that they be suppressed. No one disputes that this was a correct ruling. The court then determined, on the basis of Commonwealth v. Ware, 438 Pa. 517, 265 A.2d 790 (1970) that the second set of statements, although preceded by Miranda warnings, was nevertheless also inadmissible as the product of exploitation of the prior illegality. In Ware that illegality was prolonged interrogation without the giving of any warnings. We there applied the “fruit of the poisonous tree” doctrine as enunciated in Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L.Ed.2d 441 (1963) and held the post-warning statements inadmissible. In a number of similar cases this Court has recognized that once the police have unconstitutionally obtained substantially inculpatory admissions from an accused, he is afflicted with a psychological vulnerability to further questioning which the giving of Miranda warnings will not necessarily alleviate. See e. g. Commonwealth v. Whitaker, 461 Pa. 407, 336 A.2d 603 (1975) [filed March 11, 1975]; Commonwealth v. Bartlett, 446 Pa. 392, 288 A.2d 796 (1972); Commonwealth v. Mitchell, 445 Pa. 461, 466, 285 A.2d 93, 96 (1971); Commonwealth v. Frazier, 443 Pa. 178, 181, 279 A.2d 33, 35 (1971); Commonwealth v. Marabel, 445 Pa. 435, 447-48, 283 A.2d 285, 290 (1971); Commonwealth v. Moody, 429 Pa. 39, 44, 239 A.2d 409, 412 (1968). See also United States v. Bayer, 331 U.S. 532, 540, 67 S.Ct. 1394, 1398, 91 L.Ed. 1654, 1660 (1947), wherein the Supreme Court of the United States stated: “. . . after an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as *252fruit of the first.” The issue in each instance is whether the admissions which succeed the Miranda warnings are “sufficiently an act of the free will” of the accused. Commonwealth v. Bishop, 425 Pa. 175, 182-83, 228 A.2d 661, 666 (1967). If the answer is that they are not, but rather are the product of mental or psychological coercion, then, of course, the statements must be suppressed as involuntary.

In the instant case it is precisely this conclusion at which the suppression court arrived — I believe correctly —with regard to appellant’s final admissions, and it is for this reason that Harris v. New York is inapplicable here. The statements in issue in Harris were not coerced or involuntary in any traditional sense. Rather, they were inadmissible in the State’s case in chief solely because they had been obtained without all of the prior warnings which are required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Harris, supra, 401 U.S. at 224, 91 S.Ct. at 645, 28 L.Ed.2d at 4.2 In holding that statements of this latter class are constitutionally useable on cross-examination for the limited purpose of impeaching the credibility of a defendant who testifies in his own behalf, the Court gave no intimation that the result would be the same were the statements defective on grounds such as actual physical or psychological coercion.3 The Court pointed out that *253“ [p] etitioner makes no claim that the statements made to the police were coerced or involuntary,” and it qualified the use of the challenged evidence by the proviso “that the trustworthiness of the evidence [must satisfy] legal standards.” Harris, supra, at 224, 91 S.Ct. at 645.

In the case at bar appellant’s second confession was not constitutionally infirm because it had been obtained in violation of Miranda; appellant had received all of the warnings required by that case prior to his making of the statement. These admissions were suppressed because, notwithstanding compliance with Miranda, they were not given voluntarily, i. e. they were not the product of Triplett’s own free will but rather were the inevitable consequence of the exploitation of his first inculpatory — and involuntary — admissions.

Under these circumstances, and in the absence of evidence to the contrary, I am satisfied that the use made by the Commonwealth of any of the suppressed statements was a violation of appellant’s rights under the Fifth Amendment to the United States Constitution. Whether this Court will accept or reject the Harris rationale as a matter of state law is a question which it is not necessary or proper to reach in this case. The interests of uniformity in the development of basic principles of constitutional law involving, as in this case, rights which are expressed in identical terms in state and federal constitutions, together with the deference that is due the pronouncements of the Supreme Court of the United States, indicate that we should chart a separate course only where compelling reasons for doing so are advanced. No such reasons have been presented in this case.4 As *254this Court has done in the past, see Commonwealth v. Woods, 455 Pa. 1, 312 A.2d 357 (1973), I think we should avoid crossing the Harris bridge until we squarely-come to it.

. The text of section 10-110 is set forth in the majority opinion, ante at 63-64.

. The non-compliance with Miranda was that the detectives did not advise the accused of his right to appointed counsel at the interrogation.

. On the contrary, some scholars have suggested that by negative implication the Court revealed its view that statements which had been coerced or were involuntary would be inadmissible for any purpose. See Dershowitz & Ely, Harris v. New York: Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority, 80 Yale L.J. 1198, 1201-08 (1971). In its most recent application of the Harris rule, the Court has again indicated that a distinction should be drawn between statements obtained in violation of Miranda and those which are involuntary or coerced. Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975) (“There is no evidence or suggestion that Hass’ state*253ment to Officer Osterholme on the way to Moyina Heights was involuntary or coerced.” Ibid. at 722, 95 S.Ct. at 1221.)

. Indeed, the appellant, while urging us not to follow Harris v. New York, concedes that “this case is not a proper one in which the rule in the Harris case may be applied.” His argument continues: “. . . there is no indication of the affirmative use of perjurious testimony in reliance on the Commonwealth’s inabil*254ity to impeach the appellant’s testimony. His credibility was effectively impeached by prior testimony and the appellant realized this even before he took the stand.” Appellant’s brief at pp. 7, 9.