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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ELTON EUGENE HILL, :
:
Appellant : No. 646 MDA 2011
Appeal from the PCRA Order December 27, 2006,
Court of Common Pleas, Dauphin County,
Criminal Division at No. CP-22-CR-0001407-1998
BEFORE: PANELLA, DONOHUE and ALLEN, JJ.
MEMORANDUM BY DONOHUE, J.: FILED JULY 10, 2015
Appellant, Elton Eugene Hill (“Hill”), appeals the order dated December
27, 2006 denying his petition for relief pursuant to the Post Conviction Relief
Act, 42 Pa.C.S.A. § 9541 et seq. (“PCRA”). Pursuant to an opinion issued on
November 21, 2014, the Supreme Court reversed this Court’s previous
decision. Commonwealth v. Hill, 104 A.3d 1220 (Pa. 2014). On remand,
we affirm the trial court’s order.
In our prior decision, we set forth the following relevant factual and
procedural history of this case:
In the early morning of April 8, 1998, intruders
broke into the home of Mark and Kim Davis and
threatened the Davis’ young children with a baseball
bat. One of the intruders, James Purcell (“Purcell”)
raped Ms. Davis. Mr. Davis was able to subdue
Purcell and call the police. He left his teenage son to
guard Purcell while he ran outside to pursue Hill, age
17 at the time, whom he saw sitting in a car at the
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bottom of his driveway. Mr. Davis followed Hill in an
attempt to get a license plate number, but Hill
turned his car around and attempted to run Mr.
Davis off the road.
On April 21, 1998, detectives from the Derry
Township Police Department, including Detective
Daniel Kelly (“Detective Kelly”), arrived at Hill’s
parents’ home where Hill resided. Detective Kelly
asked Hill to meet him at the police station. Upon
his arrival at the police station, the police escorted
Hill to an interrogation room to await the arrival of
his parents. When they arrived and joined Hill,
Detective Kelly read a form containing his Miranda1
rights and gave Hill and his parents a chance to
consult privately. Detective Kelly then presented
them with a two-part form, the top part entitled
“Constitutional Rights (Adults)” and the bottom
“Waiver of Rights Miranda Warnings.” Hill’s parents
signed the top part of the form but not the bottom
part, and Hill did not sign either part. Detective
Kelly testified, however, that both Hill and his
parents verbally agreed to consent to an interview
without the presence of an attorney. N.T., 4/25/06,
at 106. At the conclusion of the interview, Detective
Kelly arrested Hill, and three days later (on April 24,
1998), the Commonwealth filed a criminal
information charging Hill with various criminal
offenses.2 Hill’s parents then retained an attorney,
Herbert Goldstein (“Attorney Goldstein”).
On April 25, 1998, Hill was transported from county
prison back to the police station. Attorney Goldstein
met with Hill and advised him that he was about to
be taken downstairs for a polygraph examination and
that he should tell the truth.3 Attorney Goldstein, a
representative of the district attorney’s office, and
Detective Joseph Steenson (“Detective Steenson”),
the polygraph examiner, met to determine and agree
on the questions to be asked during the polygraph
examination. At the outset of the polygraph
examination, with Detective Kelly present (but
without Attorney Goldstein), Detective Steenson read
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Hill a form that contained a recitation of his Miranda
rights, which Hill then initialed and signed. That
form, however, has apparently been lost and is not
part of the certified record on appeal. Detective
Kelly soon left the room and the polygraph
examination proceeded to conclusion. Attorney
Goldstein sat outside the examination room for some
period of time, but went back to his office prior to
the completion of the polygraph examination and did
not return.
At the conclusion of the polygraph examination,
Detective Steenson asked and received a short
written statement from Hill. After a break, Detective
Kelly re-entered and Detective Steenson left, at
which time Detective Kelly proceeded to interrogate
Hill. Detective Kelly did not ask questions from
those approved by Attorney Goldstein prior to the
polygraph test, but rather testified that his
interrogation involved a comparison between Hill’s
answers during the polygraph test with those made
during the prior April 21, 1998 interrogation with his
parents present. Id. at 122. At trial, Detective Kelly
testified that Hill began to cry uncontrollably, made
incriminating statements, and drew diagrams of the
crime scene. N.T., 11/18/98, at 283 ff., 297-98.
On November 20, 1998, a jury found Hill guilty of
the above-referenced crimes. On March 15, 1999,
the trial court sentenced Hill to serve an aggregate
term of not less than 186 months and not more than
1008 months of incarceration in a state correctional
institution. On March 7, 2001, this Court affirmed
Hill’s judgment of sentence, and on November 7,
2001, our Supreme Court denied Hill’s petition for
allowance of appeal.
On May 29, 2002, Hill filed a pro se PCRA petition.
In February 2003, appointed counsel filed a petition
to withdraw. On January 29, 2004, the PCRA court
dismissed Hill’s pro se PCRA petition, but after an
appeal by Hill’s privately retained counsel, on April 7,
2005, this Court vacated the PCRA court’s dismissal
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of Hill’s pro se PCRA petition.4 On April 25, 2006 and
July 27, 2006, the PCRA court held evidentiary
hearings, and on December 27, 2006 the PCRA court
again dismissed Hill’s PCRA petition. On February 9,
2007, Hill’s counsel filed a statement of matters
complained of on appeal, but failed to docket an
appeal. On November 15, 2010, Hill filed a new pro
se PCRA petition seeking reinstatement of his
appellate rights nunc pro tunc. On November 22,
2010, the PCRA court appointed Hill new counsel,
and on March 23, 2011, reinstated Hill’s right to file
an appeal to the December 2006 dismissal of his
PCRA petition.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
These charges included burglary, 18 Pa.C.S.A. §
3502, aggravated assault, 18 Pa.C.S.A. § 2702,
simple assault, 18 Pa.C.S.A. § 2701, possession of
an instrument of crime, 18 Pa.C.S.A. § 907,
possession of a prohibited weapon, 18 Pa.C.S.A. §
908, criminal conspiracy, 18 Pa.C.S.A. § 903, and
recklessly endangering another person, 18 Pa.C.S.A.
§ 2705.
3
Attorney Goldstein testified that he indicated to Hill
that “this is a lie detector test and you take the test
and you tell the truth.” Id. at 17. Hill similarly
testified that Attorney Goldstein’s “exact words were
‘Just tell the truth and you will be fine. Go
downstairs with the officer and I’ll see you later.”
Id. at 71.
4
Of relevance to the present appeal, in response to
Hill’s claim that his constitutional rights to counsel
had been violated, we indicated that “the state of the
record has not been developed sufficiently” and that
“[Hill] must be afforded the opportunity to fully
develop this claim with the assistance of counsel.”
Commonwealth v. Hill, No. 349 MDA 2004 (Pa.
Super. April 7, 2005) (unpublished memorandum).
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Commonwealth v. Hill, 42 A.3d 1085 (Pa. Super. 2012), reversed, 104
A.3d 1220 (Pa. 2014).
On March 1, 2012, this Court reversed the trial court’s order denying
Hill’s requested PCRA relief, id., but on November 21, 2014, our Supreme
Court reversed and remanded this case for further consideration in
accordance with its decision. Commonwealth v. Hill, 104 A.3d 1220 (Pa.
2014). On remand, we again consider the two issues raised by Hill on
appeal:
1. Whether [Hill] was deprived of his constitutional
right to effective assistance of counsel when his trial
counsel failed to file a motion to suppress [Hill’s]
statement on 21 April 1998 as a violation of
Miranda and its progeny.
2. Whether [Hill] was deprived of his constitutional
right to effective assistance of counsel when his trial
attorney abandoned [Hill] at a critical stage in the
proceedings and when trial counsel failed to file a
motion to suppress [Hill’s] post-polygraph statement
on 25 April 1998 as a violation of [Hill’s] right to
counsel under the Sixth Amendment to the United
States Constitution as well as Article I Section 9 of
the Pennsylvania Constitution.
Hill’s Supplemental Brief at 4. In accordance with this Court’s order dated
December 31, 2014, the parties have filed supplemental briefs addressing
these issues in light of the Supreme Court’s decision.
When reviewing an order of a PCRA court, our standard of review is
limited to whether the determinations of the PCRA court are supported by
the evidence of record and free of legal error. Commonwealth v. Lesko,
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923 A.2d 1119, 1124 (Pa. 2007). Our scope of review is limited to the
findings of the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the PCRA court level.
Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citing
Commonwealth v. Colavita, 993 A.3d 874, 886 (Pa. 2010)). The PCRA
court's credibility determinations, when supported by the record, are binding
on this Court. Commonwealth v. Medina, 92 A.3d 1210, 1214-15 (Pa.
Super.) (quoting Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011)),
appeal granted, 105 A.3d 658 (Pa. 2014).
Counsel is presumed to be effective, and the defendant bears the
burden of proving ineffectiveness. Burt v. Titlow, __ U.S. __, __, 134
S.Ct. 10, 17 (2013) (citing Strickland v. Washington, 466 U.S. 668, 689-
90 (1984); Commonwealth v. Ligons, 971 A.2d 1125, 1137 (Pa. 2009)
(citing Commonwealth v. Cooper, 941 A.2d 655, 664 (Pa. 2007)). The
test for determining the ineffectiveness of counsel is the same under both
the United States and Pennsylvania Constitutions. Commonwealth v.
Williams, 936 A.2d 12, 19 (Pa. 2007). To obtain relief on a claim of
ineffective assistance of counsel, an appellant must show (1) that there is
merit to the underlying claim; (2) that counsel had no reasonable basis for
his/her course of conduct; and (3) that the ineffectiveness resulted in
prejudice to the appellant. See, e.g., Commonwealth v. Rega, 933 A.2d
997, 1018 (Pa. 2007). The failure to satisfy any one of the prongs of the
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test for ineffective assistance of counsel requires rejection of the claim.
Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). Trial counsel
will not be deemed ineffective for failing to pursue a meritless claim.
Commonwealth v. Pursell, 724 A.2d 293, 304 (Pa. 1999).
For his first issue on appeal, Hill contends that while at the Derry
Township police station on April 21, 1998, he was subjected to a custodial
interrogation that occurred in the absence of a valid waiver of his Miranda
rights. Hill’s Supplemental Brief at 24. Hill notes that neither he nor his
parents completed the written waiver of rights form, as only some portions
of the form were signed before Lieutenant Kelly began an interrogation. Id.
at 28. In particular, there is no signature in response to the question,
“[k]nowing these rights, are you willing to answer any questions without the
presence of a lawyer?” N.T., 4/25/2006, at 110.
As a general rule, because of the inherently coercive nature of police
custodial interrogation, statements elicited from an accused in that
environment are inadmissible unless the accused was informed of and
voluntarily waived his privilege against self-incrimination and the right to
counsel. Miranda v. Arizona, 384 U.S. 436 471–79 (1966);
Commonwealth v. DeJesus, 787 A.2d 394, 401–03 (Pa. 2001);
Commonwealth v. Kunkle, 79 A.3d 1173, 1179-80 (Pa. Super. 2013)
(“Statements made during custodial interrogation are presumptively
involuntary, unless the accused is first advised of her Miranda rights.”)
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(quoting Commonwealth v. Williams, 941 A.2d 14, 30 (Pa. Super. 2008)),
appeal denied, 2015 WL 1997695 (Pa. April 22, 2015). Waiver is made
voluntarily if the decision to make it is the product of a free and
unconstrained choice. Commonwealth v. O'Bryant, 388 A.2d 1059, 1062
(Pa. 1978).
In determining whether a waiver is valid, a suppression court looks to
the totality of the circumstances surrounding the waiver. DeJesus, 787
A.2d at 402–03; Commonwealth v. Lyons, 79 A.3d 1053, 1066 (Pa.
2013), cert. denied sub nom., Lyons v. Pennsylvania, 134 S. Ct. 1792
(2014). This Court recently summarized relevant Pennsylvania law
regarding the waiver of Miranda rights as follows:
We begin by noting that “[i]t is the Commonwealth's
burden to establish whether [a defendant] knowingly
and voluntarily waived his Miranda rights. In order
to do so, the Commonwealth must demonstrate that
the proper warnings were given, and that the
accused manifested an understanding of these
warnings.” [Commonwealth v.] Baez, 21 A.3d
[1280,] 1283 [(Pa. Super. 2011] (quoting
Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d
1122, 1135–36 (2007) (citation omitted)). The basic
precepts regarding what constitutes a sufficient
waiver of Miranda rights have been defined through
a line of cases beginning with Commonwealth v.
Bussey, 486 Pa. 221, 404 A.2d 1309, 1314 (1979)
(plurality opinion). In that plurality opinion, our
Supreme Court rejected the more lenient Federal
constitutional rule that a defendant can implicitly
waive his Miranda rights, instead holding that “an
explicit waiver is a mandatory requirement.” Id. at
1314 (emphasis added); see also North Carolina
v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d
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286 (1979) (holding that under Federal constitutional
law, an implicit waiver of Miranda rights could be
found where an accused expresses an understanding
of his rights and gives a statement without expressly
waiving the same). Our Supreme Court elaborated
that an “explicit waiver” meant “an outward
manifestation of a waiver such as an oral, written or
physical manifestation.” Id. at 1314 n.11.
In Commonwealth v. Hughes, 536 Pa. 355, 639
A.2d 763 (1994), the Court applied Bussey without
acknowledging its limited precedential value as a
plurality decision. There, the Court found that the
defendant had “explicitly waived” his Miranda rights
by “clearly and unequivocally” indicating that he
understood his rights and then responding to the
officer's questions. Id. at 770. In other words, the
defendant's conduct “clearly manifested an intent to
waive his rights.” Id. Similarly, in Commonwealth
v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003), our
Supreme Court held that the defendant's twice
stating he understood his Miranda rights after they
were read to him, and answering questions
immediately thereafter, sufficiently “manifested the
intent to waive his rights.” Id. at 844 n.13. Finally,
in Baez, this Court relied on all of the above-cited
Supreme Court cases in concluding that the
defendant had sufficiently manifested his intent to
waive his Miranda rights where those rights were
read to him, he indicated one time that he
understood them, and then he answered the
questions asked by police. Baez, 21 A.3d at 1286.
Commonwealth v. Cohen, 53 A.3d 882, 885-86 (Pa. Super. 2012).
The PCRA court reached the following findings of fact relevant to
whether Hill waived his Miranda rights before the interrogation on April 21,
1998:
(3) The police did not begin questioning [Hill] until
his parents arrived.
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(4) After [Hill’s] parents arrived, Lieutenant Daniel
Kelly read the Miranda warnings to [Hill] and his
parents. The police then withdrew and gave [Hill]
time alone to consult with his parents.
(5) After [Hill] had consulted with his parents alone
for about fifteen (15) minutes, [Hill’s] father
summoned the police officers back into the room.
[Hill] and his parents indicated that they would
consent to an interview of [Hill]. [Hill] then orally
indicated that he understood his Miranda rights and
was willing to submit to questioning. Lieutenant
Kelly inadvertently failed to obtain a signed waiver
from [Hill].
Trial Court Opinion, 12/27/06, at 2-3. Based upon these findings of fact, the
PCRA court concluded that Hill “was properly advised of his rights by the
police and thereafter knowingly, intelligently and voluntarily consented” to
questioning. Id. at 5.
The certified record supports these findings of fact. At the PCRA
hearing, Lieutenant Kelly testified as follows:
Q. Did you read that warning form to Mr. and Mrs. Hill
in the presence of their son? Did you give them
private time to discuss the matter?
A. Yes, I did.
Q. What happened – by the way, how long was that
private time?
A. I would estimate about 15 to 20 minutes.
Q. Where you and the other officers when they were
having their quiet time?
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A. We were across the hallway in our office. I believe
Mr. Hill came out and got us when they were done
with their quiet time.
Q. Who was in the room during the time when you and
other officers left the room where [Hill] was?
A. Just [Hill] and his parents, his mother and father.
Q. What happened after the elder Mr. Hill summoned
you back into the room?
A. Myself and Detective Coulter went back into the
room. They indicated that they understood the
Miranda rights and that they were willing to let their
son speak to – with us. It was at that time on the
top portion of that form were it says, I believe,
Constitutional Rights and in parenthesis it says
“adult,” that portion is for the concerned adult to
sign that they understand their constitutional rights
and they consent to the interview.
I had Mr. and Mrs. Hill – I read that to them and
they did understand their rights and they signed.
The Xs you see beside their names on the top
portion of that form are Xs that I myself had put on
those lines prior to walking back into the room.
When they signed, it was my error. I failed to have
them sign again on the bottom. It is kind of
redundant, but that’s the way the form was. And I
failed to have them sign the second time at the
bottom.
Q. You put the tiny little Xs on the line where the
person is supposed to sign?
A. Correct.
Q. After you read all those rights to [Hill], the II – after
their quiet time, did he gave [sic] an indication as to
whether or not he was willing to speak to you on this
subject?
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A. Yes, he did.
Q. What did he indicate?
A. He indicated that he understood his rights and that
he would speak without the presence of an attorney.
Q. At any point during the interview on April 21, did
[Hill] invoke his rights to silence?
A. Never.
Q. Did he invoke his right to counsel?
A. No, never.
Q. Did he bring up – use the word “attorney” at any
point?
A. No, he never requested – it was never requested,
never mentioned.
Q. With regards to his parents, at no time during the
April 21 interview did his parents ever indicate a
desire to end the interview or have an attorney
present?
A. No, they never did.
N.T., 4/25/2006, at 101-03; see also N.T., 11/18/1998, at 269.
Hill and his parents offered strikingly different testimony regarding the
events of April 21, 1998 at the PCRA evidentiary hearing. Hill testified that
he and his parents asked for an attorney but the police summarily denied
the request, telling them Hill did not need one. Id. at 67. Hill also testified
that because he thought he needed an attorney, he did not sign the waiver
form. Id. Hill’s mother similarly testified that the police informed them that
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they did not need an attorney and proceeded to interrogate her son. Id. at
57-58. Hill’s father testified that he signed the top portion of the waiver
form but refused to sign the bottom portion because he insisted that his son
needed a lawyer before any questioning. Id. at 94. He testified that he put
“X”s on the form next to any line requiring a signature for the waiver of
Miranda rights, indicating his intent to demonstrate an objection to the
interview without an attorney present (and to prevent a signature from
being added by someone else at a later time). Id. at 95.
In its findings of fact, the PCRA court found Lieutenant Kelly’s
testimony regarding the events of April 21, 1998 to be more credible than
that of Hill and his parents. As indicated hereinabove, the PCRA court
makes the credibility determinations and, so long as supported by the
certified record, they are binding on this Court. Medina, 92 A.3d at 1214-
15. Because Lieutenant Kelly’s testimony amply supports the PCRA court’s
findings of facts, they are binding here and establish that Hill sufficiently
manifested his intent to waive his Miranda rights on April 21, 1998. Hill’s
first issue on appeal thus lacks any merit.
For his second issue on appeal, Hill argues that in connection with the
polygraph examination on April 25, 1998, he executed only a limited waiver
of his constitutional right to counsel restricted solely to the polygraph
examination itself, and that as a result the post-polygraph interrogation was
neither consensual nor voluntary. Hill’s Supplemental Brief at 22.
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The United States Supreme Court addressed this issue in its 1982
decision in Wyrick v. Fields, 459 U.S. 42 (1982) (per curiam).1 In Wyrick,
the Supreme Court reversed a decision of the Eighth Circuit Court of Appeals
that effectively established a bright line rule that defendants must always be
re-advised of their Miranda rights before a post-polygraph interrogation
commences. Id. at 47. In Wyrick, the defendant requested the polygraph
examination, the post-polygraph interview was conducted by the same
person who had conducted the polygraph (after he had merely switched off
the polygraph machine), and the written waiver he signed included language
much broader than typically contained in a standard Miranda waiver. Id. at
43-47. Specifically, in addition to the standard Miranda warnings, the
waiver form also advised the defendant as follows: “If you are now going to
discuss the offense under investigation, which is rape, with or without a
lawyer present, you have a right to stop answering questions at any time or
speak to a lawyer before answering further, even if you sign a waiver
certificate.” Id. at 44. The Supreme Court disagreed with the Eighth
Circuit’s suggestion that the government should have reminded the
defendant of his Miranda rights before proceeding to any post-test
1
Although Wyrick involved the issue of waiver of the defendant’s Fifth
Amendment right to counsel, in light of the Supreme Court’s ‘subsequent
decisions in Patterson v. Illinois, 487 U.S. 285 (1988) and Montejo v.
Louisiana, 556 U.S. 778 (2009), the decision in Wyrick applies equally to
possible waivers of a defendant’s Sixth Amendment right to counsel as well.
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questioning. Id. at 46-47. The Supreme Court ruled that whether Fields
had waived his right to counsel at a post-test examination had to be based
upon the “totality of the circumstances,” and that the facts as presented
demonstrated that new Miranda warnings were not necessary. Id. at 47-
48.
In our prior decision in this case, we focused our attention principally
on the breadth and scope of the waiver signed by Hill prior to the polygraph
examination, following a number of federal and state rulings interpreting and
applying Wyrick. See, e.g., United States v. Gillyard, 726 F.2d 1426
(9th Cir. 1984) (standard Miranda warnings, rather than more expansive
language in the Wyrick warning, did not permit post-polygraph
interrogation); United States v. Johnson, 816 F.2d 918, 921 n.4 (3d Cir.
1987) (“[A]ppellant signed waiver forms which strongly suggested that the
waiver of rights was applicable only to the polygraph examination.”); United
States v. Leon–Delfis, 203 F.3d 103, 111-12 (1st Cir. 2000) (despite
signing two waivers, appellant “did not mean he knowingly and intelligently
waived his rights for post-polygraph questioning.”); Monroe v. Coplan,
2007 WL 3264853, at *10 (Kan. App. October 11, 2007) (“Unlike the
situation in Wyrick, the waiver in the present case did not make it clear that
Mr. Downing would be subject to further questions after finishing the
polygraph examination.”). We considered it significant that Attorney
Goldstein pre-approved the questions to be asked during the polygraph
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examination, as this effort largely served to establish the scope of the
examination, and thus the scope of the waiver executed in connection
therewith.
In reversing our decision and remanding the case back to this Court,
however, our Supreme Court emphasized that to give sufficient “heed to the
High Court’s teaching in Wyrick,” our principle focus should be on the
continuity of the interrogation at the conclusion of the polygraph
examination. Hill, 104 F.3d at 1242.
Thus, there is force in the Commonwealth's
argument that the panel should have focused on
factors such as the continuity of the interrogation on
April 25th, a circumstance dispelling concerns of the
staleness of the warnings, and the fact that, despite
being expressly made aware of his rights (including
the “right to have an attorney present to speak with
before and during questioning if you so desire” … and
acknowledging that he understood those rights,
appellee never invoked them.
Id.
Regarding the continuity of the interrogation after Detective Steenson
completed the polygraph examination, the PCRA court made the following
relevant findings of fact:
(11) [Hill] executed a written waiver of his Miranda
rights, although that written waiver cannot presently
be located.
(12) [Hill] submitted to a polygraph examination
and was informed by Detective Steenson that he had
failed the examination. Immediately after the
polygraph examination, Detective Steenson and
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Lieutenant Daniel Kelly interviewed [Hill]. [Hill]
made incriminating statements in this interview. The
statements made to Detective Steenson and
Lieutenant Kelly were part of the interview to which
[Hill] submitted as part of the Miranda waiver.
(13) [Hill] never invoked his right to silence or to
counsel during the interview on April 25, 1998.
(14) The police officers made no threats or promises
to [Hill] before or during the interview.
(15) Attorney Goldstein anticipated that the
polygraph process would include a pre-test interview
and a post-test interview, as was customary in such
cases.
(16) Attorney Goldstein did not insist on being
present for all aspects of the polygraph process as
he was aware that if he did so, the polygraph would
not be administered. Attorney Goldstein determined
that taking the polygraph was in his client’s best
interests based on [Hill’s] assertion of innocence,
and the facts of the case as outlined by [Hill] to his
said counsel.
(17) The pre-test and post-test interviews by
Lieutenant Kelly and Detective Steenson were part of
the polygraph process.
Trial Court Opinion, 12/27/06, at 2-3.
The testimony of Lieutenant Kelly at the PCRA hearing supports these
findings of fact. N.T., 4/25/06, at 105-06, 117-19. Importantly, Lieutenant
Kelly testified that Hill indicated that he understood his rights and did not, at
any time on April 25 (before or after the polygraph examination), ask to end
the questioning or request a lawyer. Id. at 106. Hill testified to the
contrary, including that when Lieutenant Kelly began the post-polygraph
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interrogation he (Hill) inquired regarding Attorney Goldstein’s whereabouts
and was informed that he was not at the police station. Id. at 73. At trial,
Hill testified that Lieutenant Kelly ignored his request to have Attorney
Goldstein present and continued to ask him questions. N.T., 11/19/1998, at
513. Again, however, it was within the PCRA court’s province to make
credibility determinations, and on this point the PCRA court credited
Lieutenant Kelly’s testimony over Hill’s. Medina, 92 A.3d at 1214-15. We
also note that at trial, Hill acknowledged that he understood that he had the
right not to answer Lieutenant Kelly’s questions and was free to stop the
interrogation at any time. N.T., 11/19/98, at 608.
The PCRA court’s findings of fact regarding the continuity of the post-
polygraph interrogation, which are adequately supported by the certified
record on appeal, are sufficient to provide a basis for the PCRA court’s
conclusion Hill knowingly, intelligently and voluntarily made his April 25,
1998 post-polygraph statement to Lieutenant Kelly. Trial Court Opinion,
12/27/06, at 5. Accordingly, based upon our standard of review, we will not
disturb the PCRA court’s determination that Hill’s second issue on appeal is
without merit and the PCRA court did not err in dismissing the PCRA petition
for this reason.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2015
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Com. v. Hill, E.
Combined Opinion