J-S94026-16

2017 PA Super 100

*

Former Justice specially assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

JOSHUA MICHAEL LUKACH

No. 693 MDA 2016

Appeal from the Order April 5, 2016

in the Court of Common Pleas of Schuylkill County

Criminal Division at No(s): CP-54-CR-0001710-2015

BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.*

OPINION BY RANSOM, J.: FILED APRIL 11, 2017

The Commonwealth of Pennsylvania appeals from the order of April 5, 

2016, granting in part Appellee Joshua Michael Lukach’s suppression 

motion.1 After careful review, we affirm.

The relevant facts and procedural history of this case are as follows. 

See Suppression Court Opinion (SCO), 4/2/16, at 2-18.2 On August 6, 

____________________________________________

1 The Commonwealth certifies that the order suppressing evidence in this 

case substantially handicaps the prosecution of this case. See Pa.R.A.P. 

311(d).

2 The interrogation of Appellee was videotaped, and a copy included in the 

certified record. Due to the poor quality of the audio track, both Appellee 

and the Commonwealth submitted a joint transcription which was included in 

the certified record. We have reviewed both the tape and transcription. The 

suppression court opinion relies heavily on, and incorporates, the

transcription.
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2015, at approximately 5:00 a.m., Police Chief Richard Wojciechowsky of 

the Pottsville Bureau of Police was called to a crime scene at South 12th 

Street in Pottsville. Upon arriving, he discovered that John Brock’s body had 

been found in the street. Police recovered a pair of white gloves from the 

alley behind Mr. Brock’s home, a wallet from Mr. Brock’s dresser, and a bank 

card on the bedroom floor. Chief Wojciechowsky received information 

indicating that Appellee and Shavinskin Thomas were persons of interest in 

the homicide and that they had previously been involved in a crime at Mr. 

Brock’s home. Two officers reported seeing Appellee and Mr. Thomas 

walking near the crime scene at approximately 6:00 a.m. that morning.

At 11:00 a.m., Chief Wojciechowsky observed Appellee and Mr. 

Thomas near the crime scene. He asked Appellee what he was doing in the 

area, and Appellee responded that he was checking what was going on. 

Appellee claimed that on the preceding evening, he and Mr. Thomas walked 

around the city together, stopping at an A-Plus store around 5:00 a.m. A 

Pottsville police officer went to the store and reviewed security footage from 

the relevant time. Still photographs were taken of the two customers

present in the store; however, neither was Appellee.

Around 5:00 p.m. that evening, Appellee’s mother consented to a 

search of her home. Police recovered box cutters from Appellee’s bedroom, 

aware that box cutters had been used in the murder. Police also recovered 

a pair of white work gloves which were similar to gloves found in the alley 

behind Mr. Brock’s home. 
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On August 7, 2015, Appellee was arrested on two outstanding 

summary offense warrants and brought to City Hall for questioning. Chief 

Wojciechowsky advised Appellee of his Miranda3rights, and Appellee 

acknowledged he understood them. Chief Wojciechowsky questioned 

Appellee about his whereabouts on the night of the murder. At 1:25 p.m., 

Appellee informed Chief Wojciechowsky, “I don’t know, just, I’m done 

talking. I don’t have nothing to talk about.” See TCO at 12.

Instead of taking this as a request to end the conversation, Chief 

Wojciechowsky advised Appellee that he did not have to speak to police, 

stating, “You don’t have to say anything, I told you that you could stop.” 

However, Chief Wojciechowsky continued to ask questions, told Appellee 

that he did not believe his story, and informed Appellee that police officers 

had collected evidence from the crime scene for processing. At 1:36 p.m.,

police officers confiscated Appellee’s shoes. Chief Wojciechowsky continued 

to pepper Appellee with questions.

At 1:52 p.m., Appellee requested that Chief Wojciechowsky stop the 

video tape. At 1:57 p.m., Chief Wojciechowsky turned the videotape back 

on and asked Appellee whether he had been threatened, yelled at, or 

promised anything while the tape was off. Appellee responded that he had 

not. Appellee then requested to speak to a representative of the District 

____________________________________________

3 Miranda v. Arizona, 86 S. Ct. 1602 (1966).
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Attorney’s Office in exchange for a potential “deal.” The video stopped again 

at 2:00 p.m., and the prosecutor arrived at 2:23 p.m., at which time the 

video was turned on again.4 Appellee was again advised of his Miranda

rights by Chief Wojciechowsky. 

Subsequently, Appellee gave a detailed statement to police, confessing 

his involvement in the murder. As a result of Appellee’s statement, police 

obtained video surveillance of Appellee accessing an ATM on the morning of 

the homicide. Police also recovered from a storm drain the following 

evidence: the victim’s credit card, hat, shirt, and sunglasses.

Appellee was charged with murder. Prior to trial, he filed an omnibus 

pre-trial motion, seeking to suppress statements made to police after he 

stated that he “[did not] want to talk” and was “done talking.” The motion 

also sought to suppress evidence recovered as a result of Appellee’s 

statements, including Appellee’s shoes. 

Hearings were held January 12, 2016, and January 13, 2016. Chief 

Wojciechowsky testified that he did not interpret Appellee’s statements as an 

immediate invocation of the right to remain silent and wanted to “be 

absolutely certain that [Appellee] was still aware of that right.” Detective 

Kirk Becker testified that if the credit card had not been recovered from the 

____________________________________________

4 The record is silent as to what occurred during that time. In contrast to 

the earlier break, Chief Wojciechowsky did not question Appellee about the 

intervening time upon restarting the tape at 2:23 p.m.
J-S94026-16

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storm drain, police could have obtained the ATM footage regardless through 

credit checks and by subpoenaing Mr. Brock’s account access records.

On April 5, 2016, the court issued an order granting Appellee’s motion 

in part. The court suppressed statements made by Appellee following his 

assertion that he was done talking; Appellee’s shoes and any evidence 

obtained from them; and the items recovered from the storm drain. The 

court admitted all statements made prior to Appellee’s assertion that he was 

done talking and surveillance video from the ATM machine.

The Commonwealth timely appealed and filed a court-ordered 

Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The 

suppression court issued a responsive opinion adopting its April 5, 2016 

opinion and order. 

On appeal, the Commonwealth raises three issues for our review:

1. Did the suppression court err in finding that the Appellee 

made a clear and unambiguous assertion of his right to remain 

silent during police questioning?

2. Did the suppression court err in finding that the police violated 

Appellee[’s] Fifth Amendment privilege against self-incrimination 

and thus err in suppressing incriminating statements made to 

police?

3. Did the suppression court err in suppressing certain physical 

evidence (credit card, hat, shirt, and sunglasses) as fruit of the 

poisonous tree?

Commonwealth’s Brief at 5.

When the Commonwealth appeals from a suppression order:
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we follow a clearly defined standard of review and consider only 

the evidence from the defendant’s witnesses together with the 

evidence of the prosecution that, when read in the context of the 

entire record, remains uncontradicted. The suppression court’s 

findings of fact bind an appellate court if the record supports 

those findings. The suppression court’s conclusions of law, 

however, are not binding on an appellate court, whose duty is to 

determine if the suppression court properly applied the law to 

the facts.

Commonwealth v. Miller, 56 A.3d 1276, 1278–79 (Pa. Super. 2012). 

The Commonwealth first claims that the trial court erred in 

suppressing Appellee’s statement because his invocation of his right to 

remain silent was not clear and unambiguous. See Commonwealth’s Brief at 

9. The Commonwealth argues that the statement was wavering, qualified, 

and left police unsure as to Appellee’s intentions. Id.

A suspect is entitled to Miranda warnings prior to a custodial 

interrogation. Commonwealth v. Boyer, 962 A.2d 1213, 1216 (Pa. Super. 

2008) (noting that defendant’s statement “I don’t want to talk to you” was 

an invocation of his Miranda rights). If a suspect “indicates, in any manner, 

at any time prior to or during questioning, that he wishes to remain silent, 

the interrogation must cease.” Commonwealth v. Henry, 599 A.2d 132, 

1323 (Pa. Super. 1991) (internal citations omitted). However, the United 

States Supreme Court has held that the invocation of the right to remain 

silent or request an attorney must be affirmative, clear, and unambiguous. 

See Berghuis v. Thompkins, 130 S. Ct. 2250, 2259-60 (2010); see also

Commonwealth v. Briggs, 12 A.3d 291, 318 n.27 (Pa. 2011) (noting that 
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the Supreme Court has held that an individual in police custody subject to 

interrogation must affirmatively invoke his or her Miranda rights).

In Berghuis, the defendant was silent during the first two hours and 

forty-five minutes of a three-hour interrogation. Berghuis, 130 S. Ct. at 

2256-57. He did not state that he wished to remain silent, that he did not 

want to talk to the police, or that he wanted an attorney. Id. However, 

towards the end of the interrogation, a police officer asked defendant 

whether he prayed to God to forgive him for the shooting, to which the 

defendant responded, “Yes.” Berghuis, 130 S. Ct. at 2257. The defendant 

refused to sign a written confession and argued that his statement to 

detectives should have been suppressed because he had invoked his right to 

remain silent. Id. The United States Supreme Court affirmed the denial of 

defendant’s motion to suppress, holding that the invocation of the right to 

remain silent must be affirmative, clear, and unambiguous. Berghuis, 130 

S. Ct. at 2260. The defendant’s silence, without an affirmative invocation or 

statement, did not suffice. Id.

Pennsylvania courts have addressed Berghuis in passing but have not 

directly discussed its applicability. For example, in Briggs, the defendant 

argued that the trial court should have suppressed his spontaneous 

confession to police and averred he had not been given his Miranda

warnings. Briggs, 12 A.3d at 318-19. In a footnote, the Court referenced 

the Berghuis holding and acknowledged the defendant’s request to speak to 
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a lawyer was an invocation of those rights. Id. at n.27. However, the Court 

concluded that the conversation with police officers had not constituted an 

interrogation and accordingly, Miranda protections did not attach. Id. at 

323-24. Similarly, Commonwealth v. Guess also cites Berghuis in a 

footnote. See Commonwealth v. Guess, 53 A.3d 895, 901-02, n.15 (Pa. 

Super. 2012). There, the defendant argued that evidence should be 

suppressed because he was unlawfully detained prior to his arrest. Id. 

Although the defendant did not challenge statements made to the police 

during a mere encounter, the Court observed in a footnote that silence by 

the accused does not provide an unambiguous signal to the police that the 

accused has invoked Fifth Amendment protections. Guess, 53 A.3d at 902 

n.15.

The Commonwealth also directs our attention to Commonwealth v. 

Champney, 65 A.3d 386 (Pa. 2013) (plurality). In that case, an evenly split 

Pennsylvania Supreme Court affirmed the trial court’s grant of a suppression 

motion. Id. The defendant argued that the words, “I think I want to talk to 

[my attorney] before I make a statement,” were a clear and unambiguous 

invocation of his right to counsel. See Champney, 65 A.3d at 387-89. The 

opinion in support of affirmance agreed, finding that the phrase, “I think,” 

was colloquially used to express beliefs and did not render the request 

ambiguous. Id. (citing United States v. Davis, 114 S. Ct. 2350 (1994)).

The opinion in support of reversal contended that Davis was inapposite as, 
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in that case, the defendant had clarified that he did not really want an 

attorney, and the Davis Court had merely deferred to the lower court’s 

finding of ambiguity. See Champney, 65 A.3d at 400. The opinion in 

support of reversal contended that Berghuis controlled and the defendant’s 

statement was not unequivocal. Id.

Here, there is no dispute that Appellee was advised of his Miranda

rights at the outset of questioning. The question is whether or not his 

statement, “I don’t know, just, I’m done talking. I don’t have nothing to talk 

about” was a clear and unequivocal invocation of his right to remain silent, 

pursuant to Berghuis. We hold, under the facts of the case, that it was. 

The Commonwealth relies upon a number of decisions from other state 

and federal jurisdictions to support its contention that Appellee’s statement 

was ambiguous.5 See United States v. Adams, 820 F.3d 317 (8th Cir. 

2016) (finding that defendant’s statement “I don’t want to talk, man” was 

ambiguous because of an immediate subsequent statement “I mean” was 

meant to explain the previous statement); United States v. Havlik, 710 

F.3d 818, 822 (8th Cir. 2013) (noting that statements “I guess you better 

get me a lawyer” and “Could I call my lawyer” were ambiguous because a 

____________________________________________

5 This Court “is not bound by the decisions of federal courts, other than the 

United States Supreme Court, or the decisions of other states’ courts . . . 

[H]owever, we may use them for guidance to the degree we find them 

useful and not incompatible with Pennsylvania law.” Eckman v. Erie Ins. 

Exch., 21 A.3d 1203, 1207 (Pa. Super. 2011) (internal citation omitted).
J-S94026-16

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reasonable officer would have understood the suspect to be asking about the 

right to call a lawyer.”); Owen v. Florida Dept. of Corrections, 686 F.3d 

1181, 1194 (11th Cir. 2012) (finding that defendant’s statements “I’d rather 

not talk about it” and “I don’t want to talk about it” in response to specific 

questions were ambiguous where defendant continued to speak to police); 

State v. Cummings, 850 N.W.2d 915 (Wis. 2014) (discussing the 

difference between “I don’t want to talk about this” and “I don’t know 

nothing about this”). As will be discussed below, none of these decisions are 

binding precedent on this Court, nor do they implicate similar statements or 

situations to the instant case.6

For example, the Havlik Court found the defendant’s statement, “I 

guess I need to get [a lawyer],” insufficient to trigger the obligation to cease 

questioning, because a reasonable police officer could have understood the 

suspect to be inquiring whether he had the right to call a lawyer. See 

____________________________________________

6

In contrast, the Commonwealth also cites a number of cases as examples 

of clear and unequivocal statements. We would note that they are more in 

line with Appellee’s statement than with the previous examples. See 

Boyer, 962 A.2d at 1218 (holding that “I don’t want to talk to you” was an 

invocation of the right to remain silent); see also Garcia v. Long, 808 F.3d 

771 (9th Cir. 2015) (finding that “no” in response to question “do you wish 

to talk to me” was a clear assertion of Miranda rights); United States v. 

Lee, 413 F.3d 622 (7th Cir. 2005) (finding clear assertion of right to counsel 

where defendant asked “Can I have a lawyer?”); Smith v. Illinois, 105 S. 

Ct. 490, 495 (1984) (holding that an accused’s post-request responses to 

further interrogation may not be used to cast retrospective doubt on the 

clarity of the initial request itself).
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Havlik, 710 F.3d at 821. Here, Appellee made a clear statement that he did 

not wish to talk anymore. The Owen court found that defendants’ two 

statements, “I’d rather not talk about it,” were made thirty minutes apart, in 

responses to questions about very specific details and were not indications 

that the defendant wished to stop talking, but did not want to provide details 

on discrete issues, though the defendant was otherwise willing to talk and 

continued talking after his first request. Owen, 686 F.3d at 1193-94. Here, 

Appellee made the request in response to general questioning and indicated 

his desire to cease speaking to Chief Wojciechowsky. That request was not 

honored. Finally, Appellee cites to State v. Cummings, which noted that 

the statement, “I don’t want to talk about this,” indicated a desire to cut off 

questioning while “I don’t know nothing about this” was an exculpatory 

statement proclaiming innocence, which the Cummings court found 

incompatible with a desire to cut off questioning. Cummings, 850 N.W.2d 

at 928. In that case, the defendant made both statements alternately while 

continuing to respond to police questioning, unlike the instant case.

The Commonwealth takes issue with every part of Appellee’s 

statement, including the words, “I don’t know,” “I’m done talking,” and “I 

don’t have anything to talk about.” See Commonwealth’s Brief at 10-18. 

The Commonwealth argues that the statement was not “clean and clear” and 

suggests that Appellee should have said solely “I don’t want to talk to you.” 

Id. at 13. This suggests a bright line rule that does not take into account 
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the surrounding circumstances of the case, nor the entire context of 

Appellee’s statement. Although ineloquently phrased, Appellee’s statements 

were not qualified. They were not ambiguous. They were not equivocal. In 

response to continued questioning, Appellee stated, “I don’t know, just, I’m 

done talking. I don’t have nothing to talk about.” See TCO at 12. This was 

the sort of statement that would lead a reasonable police officer, in those 

circumstances, to understand the statement to be a request to remain silent. 

See, e.g., Champney, 65 A.3d at 387.

We decline to adopt the rigid, bright line rule for invocation suggested 

by the Commonwealth. Accordingly, we conclude that Appellee invoked his 

right to remain silent and the suppression court did not err in finding that he 

had made a clear and unambiguous invocation. See Berghuis, 130 S. Ct. 

at 2260. 

Next, the Commonwealth claims that the suppression court erred in 

finding that police had violated Appellee’s Fifth Amendment privilege against 

self-incrimination. See Commonwealth’s Brief at 9. The Commonwealth 

contends that Appellee made a conscious and knowing decision to confess, 

and that his confession was not coerced. Id. 

While Miranda protections prohibit the continued interrogation of an 

interviewee in custody once he has invoked his right to remain silent, further 

interrogation does not constitute a per se violation of that right. See

Commonwealth v. Bess, 789 A.2d 757, 762 (Pa. Super. 2002); see also 
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Commonwealth v. Russell, 938 A.2d 1082, 1090 (Pa. Super. 2007). A 

suppression court reviewing a statement made after the initial invocation of 

the right to remain silent must consider:

[t]he circumstances attending the defendant’s invocation of his 

or her right to silence, as well as the circumstances attending 

any further attempt at questioning. Hence, the test should ask 

whether the official purpose of resuming questioning was to 

entice the arrestee to abandon his right to remain silent, or 

simply to find out whether he or she had a change of mind. Only 

then can it be concluded whether, in fact, the defendant’s right 

to cut off questioning was scrupulously honored.

Henry, 599 A.2d at 1325. 

Henry adopted the requirement that police “scrupulously honor” a 

defendant’s request from Michigan v. Mosley, 96 S. Ct. 321 (1975), which 

held that law enforcement officials must respect a person’s exercise of the 

option to terminate questioning in order to counteract the coercive pressure 

of the custodial setting. Mosley, 96 S. Ct. at 327 (finding that Mosley’s 

right to cut off questioning was fully respected where police officers 

immediately ceased interrogation and did not try to resume questioning or 

persuade Mosley to reconsider his position). The analysis regarding whether 

police scrupulously honored defendant’s request focuses on:

(1) whether the defendant was advised of her Miranda rights 

before both interrogations; (2) whether the officer conducting 

the first interrogation immediately ceased the questioning when 

the defendant expressed his desire to remain silent; and (3) 

whether the second interrogation occurred after a significant 

time lapse, and whether it was conducted in another location by 

another officer.

Russell, 938 A.2d at 1090-91.
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It is the Commonwealth’s burden to establish that a defendant 

knowingly and voluntarily waived his Miranda rights. Commonwealth v. 

Cohen, 53 A.3d 882, 885–86 (Pa. Super. 2012). A defendant must 

explicitly waive his Miranda rights by making an outward manifestation of 

that waiver. Id. The determination of whether the waiver is valid depends 

on:

(1) whether the waiver was voluntary, in the sense that 

defendant’s choice was not the end result of governmental 

pressure, and (2) whether the waiver was knowing and 

intelligent, in the sense that it was made with full comprehension 

of both the nature of the right being abandoned and the 

consequence of that choice.

Commonwealth v. Mitchell, 902 A.2d 430, 451 (Pa. 2006). 

If the totality of the circumstances reveals an uncoerced choice and 

the requisite level of comprehension, a court may properly find that 

Miranda rights have been waived. See, e.g., Commonwealth v. Martin, 

101 A.3d 706, 724 (Pa. 2014);7 Commonwealth v. Cephas, 522 A.2d 63, 

____________________________________________

7

Factors this Court may consider include: “the means and duration of the 

interrogation, including whether questioning was repeated, prolonged, or 

accompanied by physical abuse or threats thereof; the length of the 

accused’s detention prior to the confession; whether the accused was 

advised of his or her constitutional rights; the attitude exhibited by the 

police during the interrogation; the accused's physical and psychological 

state, including whether he or she was injured, ill, drugged, or intoxicated; 

the conditions attendant to the detention, including whether the accused was 

deprived of food, drink, sleep, or medical attention; the age, education, and 

intelligence of the accused; the experience of the accused with law 

enforcement and the criminal justice system; and any other factors which 

(Footnote Continued Next Page)
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65 (Pa. Super. 1987) (finding that defendant’s schizophrenia rendered him 

unable to knowingly and voluntarily waive his Miranda rights). 

Finally, when considering a confession obtained after illegal conduct by 

police officers, the relevant factors the court considers when determining 

whether the original taint has been sufficiently purged include: (1) whether 

Miranda warnings were again administered; (2) the “temporal proximity” of 

the illegal police conduct to the confession; (3) the presence of intervening 

circumstances or events; and (4) the purpose and flagrancy of the official 

misconduct. See Commonwealth v. Burno, --- A.3d ---, *16 (Pa. 2017) 

(citing Commonwealth v. Green, 581 A.2d 544, 550-51 (Pa. 1990)). 

Further, the United States Supreme Court has held, in a companion 

case to Miranda, that officials may not benefit from the coercive 

interrogation of other officers, and that belated warnings are not sufficient to 

protect a defendant. Westover v. United States, 86 S. Ct. 1602, 1639 

(1966). In Westover, the defendant was arrested and questioned through 

the night and into the next morning without being apprised of his right to 

remain silent and his right to counsel. Westover, 86 S. Ct. at 1639. The 

next day, Federal Bureau of Investigation (“FBI”) agents took over the 

interrogation, gave the defendant advisory warnings, and proceeded to 

(Footnote Continued) _______________________

might serve to drain one's powers of resistance to suggestion and coercion.” 

See Martin, 101 A.3d at 724-25.
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question him regarding crimes committed in another state. Id. After two 

hours of questioning, the defendant confessed to those crimes. Id. The 

Westover Court held that the confession obtained by the FBI was 

inadmissible, as the interrogation leading to that statement followed on the 

heels of prolonged questioning commenced in violation of the defendant’s 

rights, and that the defendant was unable to knowingly and intelligently 

waive his rights. Id. The belated warnings were “not sufficient” to protect 

the defendant, and the FBI could not benefit from the pressure applied 

during the previous interrogation. Id. 

With these principles in mind, we first consider the period of time 

between Appellee’s invocation of his right to remain silent and the point at 

which he requested to speak to the district attorney. As noted above, 

continued interrogation does not constitute a per se violation of a 

defendant’s Fifth Amendment right. See Bess, 789 A.2d at 762. We 

consider the circumstances surrounding the invocation, the interrogation, 

and whether the police officers scrupulously honored that request. Henry, 

599 A.2d at 1325. In the instant case, Appellee stated that he was “done 

talking,” but Chief Wojciechowsky continued to interrogate him for another 

thirty minutes. See TCO at 11-16. This interrogation included informing 

Appellee that police officers were recovering evidence from the scene as well 

as pressuring him to confess. Id. During this time period, Appellee’s shoes 
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were taken from him so that evidence could be gathered from them, further 

heightening the coercive nature of this continued interaction. Id.

From these circumstances, we cannot conclude that police 

scrupulously honored Appellee’s request to remain silent. Henry, 599 A.2d 

at 1325. Further, there was no pause in the interrogation; it continued in 

the same location, by the same police officer. Russell, 938 A.2d at 1091. 

Accordingly, all statements made by Appellee and evidence recovered from 

Appellee during this time period were properly suppressed. 

However, the Commonwealth argues that Appellee’s subsequent 

inculpatory statement should not be suppressed because his Fifth 

Amendment rights were not violated. See Commonwealth’s Brief at 9. The 

Commonwealth asserts that because Appellee was read his Miranda rights 

prior to speaking to the district attorney, he voluntarily waived them, curing 

the taint of the previous illegal interrogation. Id. Appellee disputes this 

assertion, suggesting that the interview conducted by Chief Wojciechowsky 

was overly coercive and that any waiver made by Appellee was 

presumptively invalid as a result. See Appellee’s Brief at 15-25. 

Accordingly, considering the totality of the circumstances, we must also 

determine whether Appellee’s waiver was valid. Martin, 101 A.3d at 724-

25; Green, 581 A.2d at 51.

First, we note the illegal conduct of the police. As discussed, supra, 

Appellee invoked his right to remain silent, and this right was not 
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scrupulously honored by police. See Henry, 599 A.2d at 1325; Russell, 

938 A.2d at 1090-91. To the contrary, Chief Wojciechowsky continued to 

pepper Appellee with accusations and questions, kept up without pause. 

See TCO at 11-15 (continued questioning focused on evidence recovered 

from the crime scene and Appellee’s mother’s home; Chief Wojciechowsky’s 

questioning was focused on obtaining a confession from Appellee by telling 

him that if he was truthful, people would want to help him).

Next, we note the timing of Appellee’s interrogation. The interrogation 

began at approximately 1:05 p.m. See TCO at 7. Appellee invoked his right 

to remain silent twenty minutes later. See TCO at 12. Chief Wojciechowsky 

continued to interrogate him for approximately thirty minutes prior to 

Appellee’s request to speak to the district attorney. See TCO at 12-15. 

Chief Wojchiechowsky then turned off the camera for twenty minutes until 

the prosecutor arrived. See TCO at 17. In total, only twenty minutes 

passed between the illegal conduct and the confession, and as noted above, 

the record is silent as to what occurred during that time. 

Thus, due to the coercive nature of the circumstances and the impact 

of the continuous period of questioning, Appellee did not knowingly and 

voluntarily waive his Miranda rights. See Westover, 86 S. Ct. at 1639 

(noting that despite warnings given at the outset of a continued interview, 

from the defendant’s point of view, warnings were given at the end of the 
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interrogation process). Accordingly, the suppression court properly ruled 

that Appellee’s statement was inadmissible.

Finally, the Commonwealth argues that the suppression court erred in 

suppressing physical evidence obtained as a result of Appellee’s confession 

as fruit of the poisonous tree. See Commonwealth’s Brief at 5. The 

Commonwealth avers that a violation of Appellee’s Fifth Amendment right is 

not the same as a violation of Miranda. Id. at 24. Accordingly, the 

Commonwealth argues that non-testimonial evidence derived from the 

statement is still admissible. Id. at 24-26.

“The ‘fruit of the poisonous tree’ doctrine excludes evidence obtained 

from, or acquired as a consequence of, lawless official acts.” 

Commonwealth v. Brown, 700 A.2d 1310, 1318 (Pa. Super. 1997). Such 

an argument requires an antecedent illegality. See Commonwealth v. 

Johnson, 68 A.3d 930, 946 (Pa. Super. 2013); see also Commonwealth 

v. Abbas, 852 A.2d 606, 610 (Pa. Super. 2004). Further,

[w]e need not hold that all evidence is “fruit of the poisonous 

tree” simply because it would not have come to light but for the 

illegal actions of the police. Rather, the more apt question in 

such a case is whether, granting establishment of the primary 

illegality, the evidence to which instant objection is made has 

been come at by exploitation of that illegality or instead by 

means sufficiently distinguishable to be purged of the primary 

taint.

Commonwealth v. Loughnane, 128 A.3d 806, 815 (Pa. Super. 2015) 

(citation omitted). 
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As discussed above, Appellee’s inculpatory statements were not 

voluntarily made and were properly suppressed. Accordingly, evidence 

obtained as a result of the statements, unless from a means sufficiently 

distinguishable to be purged of the primary taint, was properly suppressed. 

Loughnane, 128 A.3d at 815. The suppression court held, based on the 

record, that the Commonwealth had not provided sufficient grounds to 

determine how the evidence at issue, including Appellee’s shoes and various 

items recovered from a storm drain near the victim’s home, would have 

been found absent Appellee’s statement. We see no error in this conclusion 

and, accordingly, affirm. Miller, 56 A.3d at 1278–79.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/11/2017