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Commonwealth v. Boczkowski3/23/2004
tograph the scratches on his body, take fingernail scrapings, and obtain items found in or near the hot tub. Appellant also agreed to submit to a polygraph examination. During this entire time, appellant was free to move around the police station and was told that he was free to leave at any time. Between approximately 6:00 a.m., when the polygraph examiner was contacted, and 8:15 a.m., when the examiner arrived at the police station, appellant ate breakfast with the officers while discussing football, his children and other topics. Appellant never expressed that he was tired or that he wished to go home. He did request permission to contact his father to inquire about his children, and that request was accommodated.
When the polygraph examiner, Trooper Richard Ealing, arrived at the station, he explained the process to appellant and advised him of his Miranda rights. Appellant signed a form explicitly waiving those rights and was subjected to a polygraph examination. During the examination, Trooper Ealing repeatedly told appellant that he was free to leave and could not be forced to take the examination. The examination was completed at 10:15 a.m., at which time Trooper Ealing informed appellant that he had failed. The trooper expressed his belief that appellant was responsible for his wife's death, and appellant nodded in the affirmative. Appellant stated, "This is pretty serious; maybe I should call someone," but he neither identified whom he might wish to call nor did he pursue that issue.
Trooper Ealing informed the detectives that appellant had failed the polygraph examination, at which time appellant was again reminded of his Miranda rights, which he did not exercise. Again, appellant nodded in the affirmative when Detective Waters stated a belief that appellant was responsible for Maryann's death. When all three officers confronted appellant with their belief that he had caused Maryann's death, he again nodded in agreement. Appellant then told the officers that he would tell them what happened in the presence of his attorney, James Herb, Esquire. All questioning ceased, and the officers made several attempts to contact Attorney Herb.
At 11:30 a.m., appellant was transported, without use of any restraints, to police headquarters for fingernail scrapings and a physical examination of his scratch marks. At noon, appellant signed a consent to search his clothing and body and he cooperated with the physician who took fingernail scrapings and examined the scratch marks. Attorney Herb arrived at police headquarters at approximately 2:00 p.m. and met with appellant alone for approximately one hour. Following that private meeting, Detective Cvetic again advised appellant of his Miranda rights, this time in the presence of Attorney Herb. Appellant elected to make no further statements and left police headquarters at 3:30 p.m. in the company of Attorney Herb.
On this record, the trial court found that appellant voluntarily accompanied police to the station house and that, while he certainly was questioned by police, such circumstances did not constitute custodial interrogation since he was free to leave at all times. That reality was reinforced by the fact that questioning ceased when appellant eventually invoked his right to have counsel present as well as the fact that, after counsel arrived and appellant consulted with him, he left in the company of counsel and was not arrested until some time later. In addition, the trial court stressed that, in any event, appellant was properly warned of his rights, he voluntarily waived those rights and spoke with police, and when he finally invoked those rights they were honored by police. The record fully supports the trial court's l
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