[J-48-2013][M.O. – Castille, C.J.] IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

**COMMONWEALTH OF PENNSYLVANIA,**

**Appellant**

**v.**

**ELTON EUGENE HILL,**

**Appellee :**  **: :**  **: :**  **: :**  **: :**  **: :**  **: :**  **No. 99 MAP 2012 Appeal from the Order of the Superior**  **Court entered on 3/1/12 at No. 646 MDA 2011 which reversed and**  **remanded the PCRA Order of the Dauphin County Court of Common**  **Pleas, Criminal Division, entered on 12/27/06 at No. CP-22-CR-0001407-**  **1998**

**SUBMITTED: May 3, 2013**

CONCURRING OPINION

MR. JUSTICE SAYLOR DECIDED: November 21, 2014 **I believe that the trial and post-conviction records ra ise many questions**  **concerning the stewardship of Appellee’s trial counsel. Within days of the attorney’s**  **retention, and absent any evidence of an independent i nvestigation on the lawyer’s part,**  **he recommended that Appellee submit to a polygraph ex amination. Counsel’s**  **explanation was that, because his “heart and everythin g [Appellee] said to me, I**  **believed that this would be a very positive thing[.]” N.T., April 25, 2006, at 50; see also**  **id. at 14 (“I thought that this could possibly be an o utstanding result for us.”). Although**  **the attorney would have been permitted at least to w atch (albeit without hearing) the**  **polygraph examination from another room, N.T., July 26, 2006, at 22, he nonetheless**  **returned to his office to address another matter, see i d. at 15. This left an uncounseled** **[J-48-2013][M.O. – Castille, C.J.] - 2**

**seventeen-year-old client to make a written statement to the polygraph examiner, then**  **to be turned over to the investigating officer for wh at can only be reasonably described**  **as an ensuing full-scale interrogation. See N.T., Apr il 25, 2006, at 15, 106.**  **Of course, the result of the polygraph examination wa s anything but positive for**  **Appellee, as he made key damaging admissions, which were used very effectively by**  **the Commonwealth at trial. In this regard, Appellee indicated that he said to his co**  **perpetrator that he “wouldn’t mind beating [a membe r of the victims’ family’s] ass” and**  **that he was present on the victims’ property close in tim e to the ensuing crimes. N.T.,**  **November 18, 1998, at 285. Indeed, from all appear ances, the animus which Appellee**  **admitted – for the first time to the polygraph exam iner – appears to have been the**  **impetus for the home invasion that followed. 1**  **One constraint counsel did impose, however, was to ex pressly accede only to a**  **waiver of his client’s constitutional rights relative to the polygraph examination, as**  **conducted by the certified polygraph examiner. See M ajority Opinion, slip op. at 9-10**  **(reflecting that Appellee’s waiver embodied “consent to talk with me[, i.e., Detective**  **Steenson, the certified polygraph examiner,] without the presence of an attorney”**  **(emphasis added)). Counsel explained, in this regard, that he considered Detective**  **Steenson to be a “very fair” person. N.T. April 25, 2006, at 13-14, quoted in Majority**  **Opinion, slip op. at 7. Having agreed to a waiver i ncorporating such constraint, the** 

**1 Despite the obvious damage to the defense caused by su**  **ch admission, even at the post-conviction stage and after his client had been senten**  **ced to serve 15 to 84 years in prison, trial counsel continued to attempt to cast the b**  **est light on his own performance. In this regard, the lawyer maintain that the polygra**  **ph proceedings to which he had consented yielded “helpful” results, as Appellee had mai**  **ntained that he never entered the victims’ house, and his admissions therefore merely r**  **eflected “a young man who finally fessed up[.]” N.T., April 25, 2006, at 22; i**  **d. (“[T]he statement, in my mind, I still feel that way, was helpful to [Appellee].”).** **[J-48-2013][M.O. – Castille, C.J.] - 3**

**attorney was obviously surprised to learn that an aggre ssive interrogation had been**  **conducted by another detective. See N.T., April 25, 2006, at 52.**  **2 In this landscape, I would answer the question presented**  **on a narrower basis than the majority opinion reflects. Because Appellee’**  **s express written waiver, as approved by his counsel before the lawyer surrendered**  **his client to police, was limited to examination by the polygraph examiner, I would h**  **old that a distinct waiver was required to support subsequent interrogation by a diff**  **erent officer. 3**  **In such circumstances, whether or not counsel should have anticipate**  **d a factor-based approach such as the First Circuit adopted in United States v. Leo**  **n-Delfis, 203 F.3d 103 (1st Cir. 2000), I believe he should at least have been aware o**  **f the express scope of the written**

**2 These circumstances presented also raise questions concerning**  **the legitimate scope of a post-polygraph examination, in particular, when**  **its umbrella is large enough to extend from an exploration by the examiner of the r**  **easons for indications of deception during actual testing, into a full-scale interrogation**  **by a different detective. The present record, however, is not developed in a manner which wo**  **uld permit further elaboration on such questions. For example, beyond anecdotal expl**  **anations by the detectives involved in the present case, no evidence was presented co**  **ncerning whether there are accepted parameters or guidelines relative to post-polyg**  **raph interviews (e.g., whether they are to be conducted by a certified examiner, whe**  **ther they are to proceed in a dispassionate fashion, etc.).** 

**3 In this regard, I differ with Mr. Justice Eakin’s suggesti**  **on that we are addressing a “general unrestricted waiver.” Concurring Opinion, sli**  **p op. at 5. In point of fact, as noted in the text above, Appellee’s actual express wai**  **ver is specific in its terms to questioning by a specific certified polygraph examiner.**  **I know of no authority to support the notion that it is impossible to construct a limited w**  **aiver of the Sixth Amendment right to counsel for the conduct of a polygraph examination en**  **tirely by an identified, certified polygraph examiner. Moreover, what the concurrence d**  **ismisses as a “precise limitation,” see id. at 7, is simply the limitation ap**  **pearing in the waiver’s text. To the extent the concurrence suggests the waiver should not be**  **enforced on its terms because there is no independent evidence to believe th**  **e parties meant for such limitation to apply as written, this appears to represe**  **nt a novel approach to the interpretation of express waivers.** **[J-48-2013][M.O. – Castille, C.J.] - 4**

**waiver executed by his client. 4**  **Moreover, counsel’s explanations for failing to see k**  **suppression (i.e., that the post-polygraph interviews act ually were helpful) are**  **exceptionally weak when read against the impact of Dete ctive Kelly’s extensive trial**  **testimony recounting the interrogation, which culminate d with Appellee’s breaking down,**  **crying, and protesting that he did not want to go to j ail. See N.T., November 18, 1998,** 

**at 286-98. I realize that we are speaking in matters of degree,**  **but I have previously commented on the enforcement of a “strong presumption o**  **f effectiveness,” Majority**

**4 Justice Eakin’s suggestion that Appellee implicitly waived**  **his right to counsel in the post-polygraph timeframe, see Concurring Opinion, slip**  **op. at 7-8, overlooks that, once an accused invokes that right, he cannot later waive it**  **unless he initiates the dialogue with police or counsel is present. See Edwards v. Arizon**  **a, 451 U.S. 477, 484-87, 101 S. Ct. 1880, 1884-86 (1981); Commonwealth v. Keaton**  **, 615 Pa. 675, 701, 45 A.3d 1050, 1065 (2012). Although the concurrence indicates**  **that prior decisions of this Court have approved a finding of an implicit waiver under**  **“similar circumstances” to those of the present case, Concurring Opinion, slip op. at 8, the**  **decisions it references are inapposite because the defendants in those matters had**  **not invoked their right to counsel before making the statements at issue. Hence, tho**  **se cases do not undermine the concept that, to be admissible, any further communica**  **tion with the police – most notably here, with Detective Kelly – had to have bee**  **n initiated by Appellee or undertaken upon further waiver while counsel was present** 

**. I recognize that Edwards was clarified relative to post-**  **polygraph interviews in Wyrick v. Fields, 459 U.S. 42, 103 S. Ct. 394 (1982). See Maj**  **ority Opinion, slip op. at 21-22. In that matter, the Supreme Court noted that merely di**  **sconnecting a polygraph machine does not itself terminate a waiver that was executed for** **the purpose of permitting a lie detector test to be administered. See Wyrick, 459 U.S.**  **at 47, 103 S. Ct. at 396. However, Wyrick reaffirmed Edwards’ totality-of-the-cir**  **cumstances standard for determining whether the questioning was within the scop**  **e of the waiver, and the Court did not indicate that such a waiver extends beyond its**  **express terms or to questioning by a police officer other than the one who administer**  **ed the polygraph test. Additionally, Wyrick stated that the right to have counsel present re-a**  **ttaches upon a substantial change in circumstances after the lie-detector test is ad**  **ministered. See id. In my view, interrogation by a different law enforcement officer**  **who is not subsumed by the written wavier amounts to such a change in circumstances.** **[J-48-2013][M.O. – Castille, C.J.] - 5**

**Opinion, slip op. at 35, in scenarios in which courts are seeing much the opposite. Cf.,**  **e.g., Commonwealth v. Elliot, ___ Pa. ___, ___, 80 A.3d 415, 452-53 (2013) (Saylor, J.,**  **concurring); Commonwealth v. Sepulveda, 618 Pa. 262, 344, 55 A.3d 1108, 1157**  **(2012) (Saylor, J., concurring). Here, I find the arg uable merit and reasonable-basis**  **prongs of the ineffectiveness inquiry to be readily sati sfied relative to trial counsel’s**  **failure to seek suppression -- at least of Appellee’s stat ements made to the investigating**  **officer -- after counsel’s apparent reliance on blind f aith and heartstrings yielded**  **essentially the opposite of the desired “outstanding re sult,” N.T., April 25, 2006, at 14, in**  **a continuing course of interrogation beyond what the lawyer had anticipated, see id. at**  **52. Nevertheless, I agree with the majority that the Superior Court’s prejudice**  **assessment was highly superficial and, accordingly, support the award of a remand for**  **additional consideration in such regard.**