Commonwealth v. Lukach

195 A.3d 176

COMMONWEALTH of Pennsylvania, Appellant

v.Joshua Michael LUKACH, Appellee

No. 54 MAP 2017

Supreme Court of Pennsylvania.

Submitted: May 9, 2018

Decided: October 17, 2018

James Patrick Barker, Esq., Joshua D. Shapiro, Esq. Pennsylvania Office of Attorney General, for Commonwealth of Pennsylvania, Appellant.

Jeffrey M. Markosky, Esq., Law Office of Jeffrey M. Markosky, for Lukach, Joshua Michael, Appellee.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE DOUGHERTY

We granted discretionary review to determine whether appellee Joshua Michael Lukach, who was subject to a custodial interrogation, clearly and unambiguously invoked his right to remain silent in accordance with the rule articulated in Berghuis v. Thompkins , 560 U.S. 370, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010) and, if so, whether physical evidence collected as a result of his subsequent confession was properly suppressed. We conclude appellee unambiguously invoked his right to remain silent and was then impermissibly induced into abandoning that right, rendering his confession coerced and involuntary. As such, both his confession and the physical evidence collected as a result of that confession were properly suppressed. Accordingly, we affirm the order of the Superior Court.

I. Background

At approximately 5:00 a.m. on August 6, 2015, Richard Wojciechowsky, Chief of Police with the Pottsville Bureau of Police, received a call from another officer requesting his presence at the scene of a homicide on South 12th Street in Pottsville. N.T. 1/12/16 at 7-8. Upon arrival, Chief Wojciechowsky observed blood on the roadway and was informed officers had found the body of John Brock (victim) lying in the street in front of his home. Id. at 8. During their preliminary investigation of the homicide, officers became aware that appellee and Shavinskin Thomas (Thomas) had been involved in a prior crime at the victim's house and those individuals became persons of interest in the homicide investigation. Id. at 9. Officers reported seeing appellee and Thomas walking together on Laurel Boulevard between 6:00 a.m. and 6:30 a.m. on the day the victim's body was found and Chief Wojciechowsky encountered both individuals at the intersection of 12th Street and Market Street, which was directly down the road from the scene of the homicide, at around 11:00 a.m. Id. at 10.

During a discussion with Chief Wojciechowsky, appellee stated he was in the area to see what was happening. Id. at 10-11. Appellee further stated he had been with Thomas for the entire previous evening and they had visited the APlus store on Route 61 around 5:00 a.m. Id. Officers proceeded to the APlus store which provided two still photographs from their surveillance videos showing the only customers who entered the store around 5:00 a.m. that day. Id. Neither still photograph showed appellee entering the store. Id. Later that same day, around 5:00 p.m., Chief Wojciechowsky proceeded to appellee's residence, advised his mother of the homicide, and stated he wished to speak to appellee. Id. at 20. Appellee was not home, but his mother consented to a search of the property. Id. at 20-21. During the search of the property, officers recovered box cutters from a toolbox in appellee's bedroom and a pair of work gloves from the backyard, both of which were similar to items found at the scene of the homicide. Id. at 21.

Appellee was detained the next day based on two outstanding warrants and was taken to an interview room at Pottsville City Hall. Id. at 12. Chief Wojciechowsky turned on an audio and visual recorder, read appellee his Miranda¹ rights, and began to interview appellee regarding the homicide of the victim. Id. at 13-14. During the initial stages of the interview, which began at 1:05 p.m., appellee continuously denied being involved in the homicide. Id. at 16. Subsequent to these initial denials, the following exchange took place between 1:25 p.m. and 1:30 p.m.:

CHIEF: And at some point you have a responsibility to yourself like we talked about but also your family and also your mom.

APPELLEE: I know.

CHIEF: For as much shit as you've been in, I'm guessing you haven't cut her out of your life. You still care there.

APPELLEE: Yeah a little bit.

CHIEF: It's not perfect right.

APPELLEE: Yeah. I don't know just, I'm done talking. I don't have nothing to talk about.

CHIEF: You don't have to say anything, I told you that you could stop.

APPELLEE: Ok.

CHIEF: Let me explain to you then, alright?

APPELLEE: [Y]eah.

CHIEF: We don't believe you right now.

APPELLEE: Uh huh.

CHIEF: And we are in the process of getting our stuff back from the lab and we are in the process of interviewing other people who want to give us information. So as that's being put together and it suggests that you are involved, you lose your right to tell me something different. You lose your right to distance yourself from anything that you weren't directly involved with. You lose your right to control what happens to you for however many years however long.

APPELLEE: Yeah.

CHIEF: And I've talked to people like this before and they've made the wrong choice with not speaking to me and I will tell them everything else that is going to happen to them because we are arresting them and because we have the evidence and they start bawling and they say they want to talk now. And I'm going to tell you that the answer to that is no.

APPELLEE: Yeah.

CHIEF: Because you['re] a kid from the street and you know how respect works. Respect is me now sitting with you and giving you a chance. You disrespect me by lying and I'm not gonna give you another chance because you are a man now.

APPELLEE: Yeah.

CHIEF: You get one. That's where we are going from here and that's how it's gonna play out. [The time is] 1:30.

20 Second Pause (silence)

CHIEF: I'm hoping we get a call here pretty soon from the lab about some[ ] of this stuff.

APPELLEE: Yeah

CHIEF: We will wait a couple minutes with you.

APPELLEE: Alright.

CHIEF: And then when they call if they say that stuff is there indicating that you were in the area, or [Thomas], because you said you were with him all night.

APPELLEE: Yeah.

CHIEF: Then at the point, we are not working on any kind of.. We aren't going to come from the direction of trying to help you anymore.

APPELLEE: Yeah.

Joint Submission of Transcription of Confession (Confession Transcript) at 16-17 (emphasis added). Chief Wojciechowsky continued talking to appellee regarding testing at the lab and then left the room for approximately eight minutes. Id. at 18. While Chief Wojciechowsky was outside the interview room, another officer entered the room, asked for appellee's shoes, and appellee complied. Id. Chief Wojciechowsky then re-entered the room and discussed with appellee the types of evidence that could be found on his shoes; appellee continued to deny involvement in the homicide. Id. at 18-22.

Thereafter, at around 1:53 p.m., appellee asked Chief Wojciechowsky if he could ask him a quick question off camera. Id. at 22. After their off-the-record conversation, Chief Wojciechowsky turned the camera back on, re-advised appellee of his Miranda rights, and appellee asked to speak with someone from the Schuylkill County District Attorney's Office in regards to whether he could receive a deal in exchange for his cooperation. Id. at 23-25. Chief Wojciechowsky again turned the camera off and there was a break in the interview from approximately 2:00 p.m. until 2:22 p.m. when John Fegley (ADA Fegley) from the District Attorney's Office arrived. Id. at 26. Appellee was again advised of his Miranda rights and he subsequently confessed to participating in the victim's murder. Id. at 26-52.

During his confession, appellee stated he used one of the victim's credit cards to access an ATM and then placed it in a storm drain. Id. at 44-48. Officers subsequently recovered the credit card, a pair of sunglasses, a t-shirt, and a hat in a storm drain. N.T. 1/12/16 at 43-44. Based on the confession and the recovery of the credit card, officers were able to retrieve video which showed appellee accessing an ATM around the time of the homicide. Id. at 43.

Appellee was subsequently arrested and charged with the murder of the victim and related offenses.

Prior to trial, appellee filed a motion to suppress any statements made to the police after he stated, "Yeah. I don't know just, I'm done talking. I don't have nothing to talk about" (hereinafter referred to as "appellee's invocation" or "his invocation"). The motion further requested that appellee's shoes and any other evidence recovered as a result of those statements, including the items found in the storm drain and the ATM video, also be suppressed. The suppression court held a hearing on the motion in which it viewed a video recording of appellee's invocation and read a transcription of appellee's full confession. The court also heard testimony from Chief Wojciechowsky, who testified to the above facts, and Detective Kirk Becker, who stated he would have retrieved the ATM video in the normal course of his investigation by contacting the victim's banks to determine if any of his accounts had been accessed subsequent to his death. Id. at 45. The suppression court subsequently filed an opinion and order, granting the motion in part and denying the motion in part.

The suppression court first determined "the statements by [appellee] which followed the words, ‘I'm done talking. I don't have nothing to talk about,’ are [ ] suppressed as having been obtained in violation of his Fifth Amendment^{[2 ]} privilege against self-incrimination." Suppression Court Op. 4/5/16 at 34. The court based its suppression of these statements on its finding appellee unambiguously invoked his right to remain silent by stating "I'm done talking. I don't have nothing to talk about[.]" Id. at 34. The court further suppressed the items found in the storm drain as evidence derivative of the illegally obtained confession.³ The court found this case to...