J-S10039-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

SCOTT MICHAEL KLUNK

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1087 MDA 2021

Appeal from the Order Entered August 12, 2021

In the Court of Common Pleas of York County 

Criminal Division at No(s): CP-67-CR-0003140-2019

BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.

MEMORANDUM BY COLINS, J.: FILED: AUGUST 11, 2022

The Commonwealth appeals the order granting, in part, Scott Michael 

Klunk’s omnibus pretrial motion.1 The order, as written, has the effect of

excluding a specific component of Detective Raymond Craul’s testimony at 

Klunk’s future trial. Specifically, the court excluded a conversation between 

Detective Craul and Klunk wherein Klunk admitted to material elements of the 

primary offense in which he had been charged, drug delivery resulting in 

death. See 18 Pa.C.S.A. § 2506(a). We find no abuse of discretion in the 

court’s determination and affirm. 

The Commonwealth filed charges against Klunk stemming from the drug 

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 Retired Senior Judge assigned to the Superior Court.

1 Specifically, the court granted relief responsive to the section titled “Motion 

in Limine to Exclude from Trial and/or Suppress Statements Attributed to the 

Defendant[.]” Omnibus Pretrial Motion, 5/19/21, at 2 (unpaginated). 
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overdose death of the victim, Lonnie Baer. Klunk would later file, in his 

omnibus pretrial motion, a hybrid motion to suppress/motion in limine, which 

sought to prevent the admission of Detective Craul’s testimony. See Omnibus 

Pretrial Motion, 5/19/21, at 2 (unpaginated). Said testimony was gleaned on 

the same date as Klunk’s waiver of his preliminary hearing. Klunk asserted 

that the Detective’s questioning was custodial and therefore, in the absence 

of any Miranda warnings, a violation of his Fifth Amendment rights under the 

United States Constitution. See Miranda v. Arizona, 384 U.S. 436 (1966). 

At the hearing on his hybrid motion, Klunk called the attorney who 

represented him at the waiver of his preliminary hearing, Attorney William 

Graff, as well as the case’s affiant, and later questioner, Detective Craul. 

In piecing their testimonies together, Attorney Graff, preoccupied with 

an off-the-record conversation with the magisterial district judge (MDJ) 

overseeing proceedings that day, signaled the Detective onward to speak with 

his client. Specifically, Klunk’s attorney in conjunction with the MDJ were

completing the preliminary hearing waiver paperwork, and after the ask was 

made, Attorney Graff stated to the Detective that he could inquire as to

whatever he wanted of his client. 

Although Attorney Graff did not specifically remember representing 

Klunk, he affirmatively stated that it was not his normal practice to allow a 

detective to ask questions of his clients without, at a minimum, querying as 

to what the content of the questioning would be. Moreover, Attorney Graff 

indicated that he did not discuss Klunk’s right to counsel or Klunk’s lack of 
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obligation to speak with the Detective prior to the Detective’s questioning of 

him. Attorney Graff would maintain that authorizing the Detective to speak 

with his client, considering the death-related charges Klunk was facing, was 

just “an off-the-cuff comment. [Attorney Graff] didn’t know if [the Detective] 

was going to say anything to [Klunk] or not. [He] was too busy talking to [the 

MDJ].” N.T., 8/12/21, at 6. 

In his own words, the Detective would indicate that Attorney Graff, prior 

to the preliminary hearing waiver, conveyed that there would be no dispute 

that Klunk delivered heroin, but that the heroin furnished by Klunk, in fact, 

did not result in Baer’s death.

After Attorney Graff gave the Detective access to Klunk, Klunk, outside 

the presence of his counsel, admitted that he acquired heroin in Philadelphia, 

that he sold a bag of heroin to Baer for a couple of bucks, and that Klunk 

consumed that same batch of heroin himself but did not get sick. Klunk was 

not under arrest while the two were communicating, and the Detective 

characterized the conversation as casual. However, the Detective, despite 

seeking information for investigation purposes, did not indicate to Klunk why 

he was asking questions or apprise Klunk of his right not to speak with him.

In addition to the already named individuals, two of the victim’s family 

members and a stenographer were also present in the same room throughout 

the entirety of the previously described events.

Although, in the more recent proceedings, Klunk asserted a Fifth 

Amendment violation in his hybrid motion, Klunk’s current counsel conceded, 
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at the corresponding hearing, that he was not in custody and that, therefore, 

Miranda warnings were, in all likelihood, not necessary. Counsel further 

noted, inter alia, that Klunk was free to walk into and out of waiver of 

preliminary hearing proceedings and that his bail was not in jeopardy.

However, reflecting on the motion in limine portion of the hybrid motion, 

Klunk also orally sought exclusion, rather than suppression, of the Detective’s 

testimony, contending that Klunk’s admissions were extremely prejudicial, 

outweighing their probative value. In response, the Commonwealth, inter alia, 

advanced an argument that Klunk waived his Sixth Amendment right to 

counsel as his attorney, standing in the same room, allowed access to him, 

and Klunk voluntarily spoke with the Detective. 

In its ruling, the court first found that there was no Fifth Amendment 

basis for suppression. However, as to the motion in limine, the court stated 

its concern for whether, under the Sixth Amendment, Klunk’s waiver of 

counsel was “knowing, voluntary, and intelligent.” Id., at 39. The court was 

not convinced that Klunk effectively waived his counsel:

[i]t’s not Attorney Graff who can waive his client’s right to effective 

counsel. It’s ... Klunk who has to waive it. And Attorney Graff was 

up talking to the MDJ and told the detective, you can go talk to 

my client. [Attorney Graff] didn’t counsel with his client and say, 

based on the evidence I have in front of me, hey, you know, say 

this, don’t say that, as far as issue areas, so I don’t have a record 

before me that convinces this [c]ourt that at the moment, at the 

very short period of time, that ... Klunk made a knowing, 

voluntary, and intelligent waiver of his right to have counsel. 

The statements of Klunk, if presented at trial, are certainly 

probative and helpful to the Commonwealth. The prejudicial effect 
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to [Klunk] is extremely high. When that is weighed against – or 

viewed through the prism of the fact that those statements were 

made, and the [c]ourt is finding that he did not knowingly, 

voluntarily, and intelligently waive his 6th Amendment right to 

counsel, I am going to exclude those statements. That is essential 

to preserve the fairness of this proceeding going forward.

Id., at 39-40. The court also noted that because Attorney Graff did not 

specifically remember whether he had any type of strategy in allowing this 

questioning, it was highly unusual, in a vacuum, for an attorney to allow this 

type of interaction between a client and a police officer. In sum, the court 

excluded the Detective’s testimony jointly predicated on Sixth Amendment 

and unfair prejudice grounds. The court would later summarize that “[i]n 

essence, Attorney Graff provided [Klunk] with no legal advice, guidance, or 

protection whatsoever, as he turned him over to an experienced detective for 

unqualified questioning in a death case.” Trial Court Opinion, 10/15/21, at 8.

After the court made its ruling, the Commonwealth filed a timely notice 

of appeal, which, as an interlocutory appeal, contained proper certification. 

See Pa.R.A.P. 311(d) (indicating that this outcome would terminate or 

substantially handicap the prosecution in this case). Thereafter, the relevant 

parties complied with their respective obligations under Pennsylvania Rule of 

Appellate Procedure 1925. Accordingly, this appeal is ripe for review.

The Commonwealth presents three issues:

1. Did the lower court err in granting Klunk’s motion to suppress 

based on grounds not raised within that motion?

2. Did the lower court err in finding Klunk’s waiver of his Sixth 

Amendment right to counsel was not knowing or voluntary?
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3. Did the lower court err in incorrectly applying a Sixth Amendment 

analysis to a claim of prejudice under the Pennsylvania Rules of 

Evidence?

See Commonwealth’s Brief, at 4-5.

Preliminarily, we note the ambiguity in the record as to whether the 

lower court granted Klunk’s motion to suppress or his motion in limine. As 

evidenced, supra, the Commonwealth framed its first question as predicated 

on it having appealed from the grant of a suppression motion. However, the 

court’s verbiage in its order, speaking in terms of exclusion and unfair 

prejudice, see Pa.R.E. 403 (allowing for the exclusion of relevant evidence if 

there is a danger of unfair prejudice), falls more squarely within the dictates 

of a motion in limine. In either case, “the Commonwealth may appeal a pretrial ruling on a motion in limine which excludes Commonwealth evidence in 

the same manner that it may appeal an adverse ruling on a suppression 

motion[.]” Commonwealth v. Boczkowski, 846 A.2d 75, 87 (Pa. 2004). 

Our Supreme Court has stated: “[t]here is no essential difference 

between suppression rulings and rulings on motions in limine to admit or 

exclude evidence. In both cases, a pretrial ruling is handed down which admits 

or excludes evidence at trial[.]” Commonwealth v. Gordon, 673 A.2d 866, 

868 (Pa. 1996). “That suppression motions are always of constitutional 

dimension and motions in limine are only sometimes of constitutional 

dimension is of no import[.]” Id. 

Despite the court utilizing, predominantly, a motion in limine analysis, 

we affirm its decision as if it were purely a suppression issue being decided. 
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See Commonwealth v. Clouser, 998 A.2d 656, 661 n.3 (Pa. Super. 2010) 

(“It is well-settled that this Court may affirm on any basis.”). If we were 

performing a motion in limine review, the exclusion of such evidence would 

be at the sound discretion of the trial court and subject to an abuse of 

discretion standard. See Commonwealth v. Arrington, 86 A.3d 831, 842 

(Pa. 2014). However, in the context of a Commonwealth appeal from a 

suppression order:

[the appellate court] follow[s] a clearly defined standard of review 

and consider[s] 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 facts bind an appellate court if the 

record supports these 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. Deck, 954 A.2d 603, 606 (Pa. Super. 2008) (citation 

omitted). 

The Commonwealth avers that the lower court “abused its discretion 

where it sua sponte granted [Klunk’s] motion to suppress on grounds not 

within [his] motion.” Commonwealth’s Brief, at 21. After it became clear that 

there was no Fifth Amendment violation present in this case, the court’s 

conclusion that Klunk’s Sixth Amendment right to counsel had been violated 

was improper because the court “may only rule on allegations specifically 

raised in a [d]efendant’s omnibus pretrial motion.” Id., at 22.
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While we agree with the Commonwealth that a suppression motion 

“shall state specifically and with particularity the evidence sought to be 

suppressed, the grounds for suppression, and the facts and events in support 

thereof,” Pa.R.Crim.P. 581(D), the cases cited by the Commonwealth in 

support of its argument all feature a concomitant lack of consideration of the 

allegedly unasserted issue at the corresponding suppression hearing. See, 

e.g., Commonwealth v. Whiting, 767 A.2d 1083, 1087 (Pa. Super. 2001) 

(“Moreover, it was improper for the reason that the court never took any 

testimony or evidence at the suppression hearing on this issue and, therefore, 

could not make an informed decision.”); Commonwealth v. Carter, 234 

A.3d 729, 733-34 (Pa. Super. 2020) (identifying that the suppression motion 

and subsequent hearing were wholly unrelated to the basis on which the court 

found suppression). Stated differently, because the Commonwealth was 

unaware of the precise reasons for suppression ultimately found in those cited 

cases, it was unable to defend itself or provide evidence in a responsive motion 

or at the attendant hearings.

Here, placing aside the conceptual overlap between the right to counsel 

contained within the Fifth and Sixth Amendments, as distinct from Whiting 

and Carter, it was the Commonwealth that effectively “opened the door” for 

the court to make an informed decision predicated on Sixth Amendment 

grounds. When given the opportunity to respond at the hearing, the 

Commonwealth cited, in open court, Commonwealth v. Briggs, 12 A.3d 291 

(Pa. 2011), for the proposition that “defendants can voluntarily waive their 
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6th Amendment right to counsel, and that’s what happened in this case. 

[Klunk] waived that right to counsel.” N.T., 8/12/21, at 35. The 

Commonwealth continued: “Attorney Graff was standing in the room. He was 

right there. Detective Craul took that opportunity to speak to [Klunk], and 

that’s what we have in this case, a statement that was made. His right to 

counsel was waived.” Id. A few moments later, the Commonwealth conveyed 

to the court that “the 6th Amendment right to counsel attaches after ... 

charges are brought, and it specifically talks about preliminary hearings, and 

at that time police can’t deliberately go out and speak to people unless they 

waive their right to counsel, and ... that’s what happened in this case[.]” Id., 

at 36. 

While there is no explicit mention of the Sixth Amendment in Klunk’s 

suppression motion/motion in limine, Klunk argued during the hearing that 

“no warnings were given prior to [Detective Craul] asking questions and that 

[the Detective] relied upon ... the flippant gestures of Attorney Graff to go 

ahead and talk to him[.]” Id., at 31. Even though Klunk expressly argued in 

the context of the Fifth Amendment, such averments necessarily implicated 

the Sixth Amendment, discussed infra, as demonstrated by the 

Commonwealth’s response, which attempted to convince the court of Klunk’s 

Sixth Amendment waiver.

Clearly, then, this case is not one in which the court made a unilateral 

or sua sponte ruling; the Commonwealth ably defended itself against a theory 

it thought was present in the case and further cited authority in support of its 
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position. Although perhaps inartfully suggested by Klunk, the court, having 

observed the full testimony of both Attorney Klunk and Detective Craul, was

well-apprised of the Sixth Amendment issue that was present. In fact, it is 

unclear what more testimony could have been taken to give the court more 

information in its determination. As such, we find that despite there being no 

Sixth Amendment argument in Klunk’s motion, it was fairly suggested by 

Klunk’s argument at the corresponding hearing and, further, that the 

Commonwealth was fully cognizant of, and completely responsive to, the Sixth 

Amendment issue to the point where the court was able to make an informed 

decision.

Having found no fatal defect in the procedure employed by Klunk and 

the court prior to the court’s suppression determination, we next must 

evaluate whether Klunk was, in fact, deprived of his Sixth Amendment right 

to counsel. We conclude that he was.

The Sixth Amendment to the United States Constitution indicates, 

among other things, that “[i]n all criminal prosecutions, the accused shall 

enjoy the right to ... have the assistance of counsel for his defense.” See also

Pa. Const. Art. I, § 9 (enumerating, materially, the same right to counsel). 

“The right to counsel extends not only to certain summary proceedings, at 

trial, guilty plea hearings, sentencing, but also to every critical stage of a 

criminal proceeding.” Commonwealth v. Fill, 202 A.3d 133, 138 (Pa. Super. 

2019) (citations omitted); see also Commonwealth v. Carlson, 244 A.3d 

18, 22 (Pa. Super. 2020) (stating that the Sixth Amendment right to counsel 
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attaches at the initiation of adversarial proceedings, including the filing of a 

criminal complaint) (citation omitted). “The essence of [a defendant’s Sixth 

Amendment] right is the opportunity for a defendant to consult with an 

attorney[.]” Carlson, 244 A.3d at 23 (citation omitted). “Once the adversary 

judicial process has been initiated, the Sixth Amendment guarantees a 

defendant the right to have counsel present at all critical stages of the criminal 

proceedings.” Id. (citation omitted). 

Generally, “[c]ourts indulge every reasonable presumption against 

waiver of fundamental constitutional rights and ... do not presume 

acquiescence in the loss of fundamental rights. A waiver is ordinarily an 

intentional relinquishment or abandonment of a known right or privilege.” 

Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (footnotes and citations 

omitted). “After the Sixth Amendment right to counsel attaches, it does not 

depend upon any further request by the defendant.” Commonwealth v. Hill, 

42 A.3d 1085, 1091 (Pa. Super. 2012) (citation omitted). “In other words, the 

Sixth Amendment right to counsel is ‘self-effectuating,’ in that the accused 

has no obligation to assert it.” Id. (citation omitted). By way of example, if 

the government is deliberately eliciting incriminating information in the 

absence of counsel and after the attachment of the Sixth Amendment right, 

absent some sort of definite waiver by a defendant, that act constitutes a 

constitutional violation. See Massiah v. United States, 377 U.S. 201, 206 

(1964).
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In order to waive one’s Sixth Amendment right to counsel, such a waiver 

must be “voluntary, knowing, and intelligent.” Hill, 42 A.3d at 1091 (citation 

omitted). “The determination whether an accused has knowingly and 

voluntarily waived his constitutional rights depends on the facts of each 

particular case. These circumstances include the background, experience and 

conduct of the accused.” Id. (citations omitted). The onus is on the 

government to demonstrate, by a preponderance of the evidence, that a 

waiver was a “free and deliberate choice[.]” Id. (citation omitted). 

The Commonwealth does not dispute that Klunk had a Sixth Amendment 

right to counsel when he was questioned by the Detective. See 

Commonwealth’s Brief, at 19. However, the Commonwealth’s position is that 

there was no Sixth Amendment violation. Klunk’s attorney was present in the 

same room as Klunk when Klunk’s attorney waived the Detective on to speak

with him. Stated differently, there was no deprivation of counsel in this 

instance because Klunk’s attorney was mere feet away. Moreover, the 

Commonwealth highlights that it was not a custodial interrogation, but instead 

a casual conversation, so Klunk’s ability to terminate the interaction at any 

point further shows no Sixth Amendment problem. Finally, the Commonwealth 

asserts that it did not engage in any coercion or trickery to get Klunk to admit 

to inculpatory pieces of information throughout the Detective’s questioning. 

In response, the court writes that the Commonwealth’s position

[u]tterly discounts Attorney Graff’s testimony that he was busy 

chatting with the [MDJ] and that, under normal circumstances, he 

would have found out what subjects the detective intended to 
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delve into. Attorney Graff had not discussed [Klunk’s] rights with 

him, nor advised [Klunk] as to his obligation, or lack thereof, to 

speak with the [D]etective. The conversation was described as 

casual. It was so casual that the [D]etective did not apprise 

[Klunk] of any constitutional rights or of his right to remain silent. 

The [D]etective did not inform [Klunk] as to the subject of the 

conversation. The [D]etective did not even inquire whether 

[Klunk] wished to talk to him before launching into questioning 

designed to elicit incriminating statements. 

Trial Court Opinion, 10/15/21, at 14. The court concluded that Klunk was not 

aware of “the nature of his rights, nor of the ramification of forgoing them.” 

Id., at 15. In addition, the court noted that, despite the apparent trial strategy 

involving Attorney Graff admitting to certain elements of the crimes with which

Klunk had been charged, “the right to waive counsel belongs to [Klunk] and 

not to Attorney Graff.” Id.

At the suppression/motion in limine hearing, the Detective told the court 

that there was no conversation between Klunk and Attorney Graff after the 

Detective asked if he could speak with Klunk. See N.T., 8/12/21, at 13. 

Without any prior qualification or any other identifying pieces of information, 

the Detective began to ask questions of Klunk. See id., at 15. The Detective 

did not tell Klunk that he did not have to answer his questions, nor did he give 

Klunk any type of constitutional warnings. See id., at 16. Furthermore, the 

Detective did not inquire as to whether Klunk wanted to speak with him. See 

id. At no point did the Detective tell Klunk that he was extracting information 

as part of his investigation into the victim. See id., at 17.

Despite Klunk’s counsel being technically in the room at the time, it does 

not appear, from the record, that he was “present” for Sixth Amendment 
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purposes. In other words, the facts of this case compel a finding that Attorney 

Graff’s preoccupation with the MDJ effectively denied Klunk his Sixth 

Amendment right to counsel: Klunk’s attorney had absolutely no idea what 

content the Detective would discuss with his client or even what the 

Detective’s particular purpose was in seeking that meeting.

It is true that Klunk could have waived his Sixth Amendment right at 

any point. See Montejo v. Louisiana, 556 U.S. 778, 786 (2009) (“[T]he 

defendant may waive the right whether or not he is already represented by 

counsel; the decision to waive need not itself be counseled.”). However, 

beyond the mere fact that Klunk provided responses to the Detective’s 

questions, there is no evidence to show that Klunk, in fact, knowingly or 

intelligently waived this right to counsel. From his own testimony, the 

Detective did not provide any context to his questioning nor did he identify 

what his purpose was. Moreover, Klunk’s attorney intentionally or unwittingly 

placing his client in a position to be interrogated in his absence is immaterial 

to whether Klunk, himself, knowingly waived his constitutional right. 

While we ascribe no malice or nefariousness to the Detective’s actions, 

especially as he was acting with at least some level of consent from Klunk’s 

attorney, the information gleaned from the Detective’s interview was not 

extracted after a clear waiver of Klunk’s constitutional right.2 Therefore, it 

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2 For example, although such hypotheticals are not presently before us, if the 

Detective had expressly identified his purpose or unambiguously asked Klunk 

(Footnote Continued Next Page)
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was not an error or an abuse of discretion for the court to find a Sixth 

Amendment violation, and we affirm having construed the lower court’s 

decision through the lens of suppression.3

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 08/11/2022

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whether he wanted to proceed despite the topic being discussed, the likelihood 

of finding a Sixth Amendment violation would have greatly diminished.

3 As we affirm on a basis distinct from the lower court, wholly on suppression 

grounds, discussion of the court’s unfair prejudice finding made pursuant to 

Pennsylvania Rule of Evidence 403 and in the context of the Sixth Amendment 

is unnecessary.