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J. S06045/03
2003 PA Super 115
COMMONWEALTH OF PENNSYLVANIA,
:
IN THE SUPERIOR COURT OF
:
PENNSYLVANIA
Appellant
:
:
v.
:
:
PATRICIA McCARTHY,
:
:
Appellee
:
No. 2300 EDA 2002
Appeal from the Order entered July 16, 2002
In the Court of Common Pleas of Monroe County
Criminal Division at No. 289 Criminal 2002.
BEFORE:
BENDER, MONTEMURO* and BECK, JJ.
OPINION BY BECK, J.:
Filed: March 24, 2003
¶ 1
The Commonwealth brings this appeal from an order of the court of
common pleas, Monroe County, that suppressed the oral and written
statements of appellee Patricia Ann McCarthy. For the reasons that follow,
we affirm.
¶ 2
A suppression hearing on June 17, 2002, established the following
facts. On December 27, 2001, Detective Christopher James Wagner of the
Pocono Mountain Regional Police Department responded to a call from the
North Campus of the Pocono Mountain Intermediate Elementary School.
From the school principal, Wagner learned of thefts of a credit card, as well
as currency and prescription medication, from a school office. Wagner
conducted interviews at the school of faculty and staff who had access to the
office. The first interview, on January 22, 2001, was primarily to collect
* Retired Justice assigned to the Superior Court.

J. S06045/03
samples of handwriting. Wagner read a police form that included the
statement: "I am not under arrest. I fully understand that I am free to
leave." He also read each person a "consent to voluntary search" form. He
asked all of them if they understood. All stated that they did understand.
Wagner proceeded to explain to the employees that they had the right to
refuse the search and did not have to provide writing samples. Appellee
signed the consents. N.T., 6/17/2001, at 3-9. During that interview,
appellee denied any knowledge of the thefts.
¶ 3
The police forwarded the handwriting samples to the handwriting
analysis department of the State Police Crime Laboratory. Wagner, not a
handwriting expert himself, suspected that appellee's handwriting was like
that on one of the credit card receipts. He returned to the school on January
24 and again interviewed appellee. He was in plain clothes, not police
uniform. He read her the notification of no arrest again, and she signed it
again. N.T., 9-13. Wagner proceeded to inform appellee that he suspected
her involvement in the thefts, and he advised her that she should cooperate.
Appellee first admitted to one theft. After being warned that it would be
unwise to stop cooperating, she admitted to three. After more questioning,
appellee stated, "I'll take the blame for the whole thing." N.T., at 16. She
also stated that she had trouble remembering specifics because her mind
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J. S06045/03
was foggy due to depression and medication.1 Ultimately, she confessed.
N.T., at 17. At the conclusion of the meeting, appellee was free to leave.
On January 28, 2002, a criminal complaint charged appellee with forgery, 2
theft by unlawful taking,3 theft by deception,4 and receiving stolen property.5
After the suppression hearing, the court issued its order suppressing the
incriminating statements on July 16, 2002.
¶ 4
The scope of review on the issue of suppression of evidence is whether
the trial court abused its discretion. We determine whether the factual
findings are supported by the record and we reverse if the legal conclusions
drawn from those facts are in error. Commonwealth v. Masters, 737 A.2d
1229 (Pa. Super. 1999).
¶ 5
The Commonwealth argues that the prophylactic rule enunciated in
Miranda v. Arizona, 384 U.S. 436 (1966), incorporating the Fifth
Amendment protection against self-incrimination, applies only to custodial
interrogations. The test for determining whether or not a person is in
custody and entitled to the protection of Miranda is whether the person "is

1 At the time of the interview, appellee was taking four thirty-milligram
capsules of Paxil two times a day. N.T., at 40.
2 18 Pa.C.S.A. § 4101(a)(2).
3 18 Pa.C.S.A. § 3921.
4 18 Pa.C.S.A. § 3922(a)(1).
5 18 Pa.C.S.A. § 3925(a).
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J. S06045/03
physically deprived of his or her freedom of action in any significant way or
is placed in a situation in which he or she reasonably believes that his or her
freedom of action is restricted by. . . interrogation." Commonwealth v.
O'Shea, 456 Pa. 288, 292, 318 A.2d 713, 715 (1974). They ask us to
conclude that appellee was not in custody, and therefore was not entitled to
Miranda warnings. They base their arguments on the signed statements,
the fact that the interrogation took place in a school office, not the police
station, that she had signed a waiver, and that she was never placed in
handcuffs.
¶ 6
Our reading of the record leads us to a different conclusion. Wagner
admitted that his purpose in the return interview was to get appellee to
confess, and that the interview took place in an office with the door closed.
N.T., at 21. Wagner told appellee she was a suspect, and that he was
confident that the handwriting analysis would establish that she was the one
who had illegally used the credit card. Appellee testified that Wagner urged
her to confess, promising her that if she did, all she would get would be
probation and placement in a rehabilitation program. If she did not, she
would receive jail time. If she did not confess, he would arrest her and take
her out, in handcuffs, in front of all her friends. Appellee asked for
permission to call her husband, and to talk an attorney, and Wagner
refused. N.T., at 13, 28-30, 38-39. As she told the court: "I stood up,
went to the door, and told him, `Look, I just want to talk to my attorney,'
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J. S06045/03
and he told me, no, this is my window of opportunity; if I walked through
that door he would make sure that all the charges stuck and he would
embarrass me in front of my friends. That's when I sat down." N.T., at 330.
¶ 7
Our Supreme Court has held that the basic test to determine whether
a person is being subjected to a custodial interrogation that necessitates
Miranda warnings is whether she is being deprived of her physical freedom
in a significant way, or whether she is placed in a situation in which she
reasonably believes that her freedom of action is restricted by the
interrogation. Commonwealth v. Turner, 772 A.2d 970 (Pa. Super.
2001), citing Commonwealth v. Chacko, 500 Pa. 571, 459 A.2d 311, 314
(1983). The standard is an objective one, with due consideration given to
the reasonable impression conveyed to the person being interrogated.
Commonwealth v. Edmiston, 535 Pa. 210, 634 A.2d 1078 (1993). A
person is considered to be in custody for the purposes of Miranda when the
officer's show of authority leads the person to believe that she was not free
to decline the officer's request, or otherwise terminate the encounter.
Commonwealth v. Witherspoon, 756 A.2d 677 (Pa. Super. 2000). We
agree with the hearing court that the facts of the situation prevail over any
document that appellee signed.
¶ 8
In conclusion, appellee also argues that the confession was not freely
or intelligently given. The voluntariness of a confession is determined by the
totality of the circumstances. Commonwealth v. Templin, 568 Pa. 306,
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J. S06045/03
795 A.2d 959 (2002). We conclude that the circumstances of the
confession, viewed in their entirety, indicate that it was not freely and
voluntarily given. We therefore affirm the order of the court suppressing
appellee's statements to police.
¶ 9
Order affirmed.
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