author: KELLY, Judge:

text:
    610 A.2d 1006
    COMMONWEALTH of Pennsylvania v. Victor Martin PARRELLA, Jr., Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1991.
    Filed June 3, 1992.

      David J. Flower, Dist. Atty., Somerset, for Com., appellant.
    Robert D. Gleason, Johnstown, for appellee.
    Before CAVANAUGH, BECK and KELLY, JJ.
   KELLY, Judge:

In this Opinion we are called upon to determine whether the trial court properly ordered the suppression of tape recordings of conversations between the appellee and his deceased estranged wife in the prosecution of the appellee for criminal homicide pursuant to 18 Pa.C.S.A. § 5721. The tapes and derivative evidence in controversy was uncovered through the unconsented recording of conversations between the appellee and his estranged wife, which occurred in an apartment on the night of her death. The tapes were made through the use of an improvised interception system consisting of an electronic baby monitor and tape recorder that was surreptitiously installed by the appellee’s girlfriend in the apartment where she resided with the appellee. We affirm.

The relevant facts for the purposes of this appeal as discerned from the stipulations of the parties and the transcript of the preliminary hearing are as follows. The appellee, Victor M. Parrella, Jr., is charged with criminal homicide in connection with the death of his estranged wife, Donna Jean Parrella. In Count III of his Application for Omnibus Pre-Trial Relief, the appellee motioned to suppress the contents of tape recordings of conversations between himself and his estranged wife, which were recorded on the night of her death, January 19-20, 1990. The tape recordings were taken by private individuals acting without color of state authority in an apartment located directly above the Mountain House Tavern in Point Borough, Somerset County. The apartment was orally leased by Shelly Lea Homer on a week by week basis where the appellee also resided.

On January 19, 1990, after having been advised by the appellee that he intended to meet with his estranged wife that evening in the apartment, Ms. Homer purchased a Fisher Price Baby Monitor and several blank tapes at a local department store. The baby monitor consisted of two parts, a monitor which would pick up all sounds in the room where it was placed, and a receiver, which would transmit the sound. Ms. Homer then installed the monitor in a drop ceiling in the apartment bedroom and placed the receiver next to a tape recorder on a porch adjacent to one of the apartment windows.

At approximately 11:30 p.m. on January 19, 1990, Ms. Homer turned on the receiver and the tape recorder. Ms. Homer then returned to the Mountain House Tavern below and sat with two friends, Sandra Feldbauer and William Hill. Neither the appellee nor the decedent had any knowledge that their conversations inside the apartment were being recorded.

At approximately 1:00 a.m. on January 20, 1990, Ms. Homer and Ms. Feldbauer testified that they heard a loud thumping noise emanating from the apartment. Ms. Feldbauer also testified that while she was changing the tape in the tape recorder outside the apartment, she heard the appellee say, “Why am I holding a gun to the head of someone I really want to be with?” Additionally, Raymond Wiencek, who resided in the apartment next door, testified that he had previously heard arguing coming from the Homer-Parrella apartment. Mr. Wiencek further testified that at approximately 1:00 a.m., he heard a loud noise which sounded like a gunshot and then heard the appellee repeating over and over, “Donna, are you all right?” However, the police were not notified at that time. Ms. Homer subsequently retrieved the tapes and went to Ms. Feldbauer’s brother’s apartment where she, Ms. Feldbauer and several others listened to the tapes. Sometime later on the morning of January 20, 1990, Ms. Homer and Ms. Feldbauer returned to the Homer-Parrella apartment to remove Ms. Homer’s personal belongings. At that time, Ms. H6rner discovered blood on the carpet in the apartment. The police were subsequently contacted and the tapes were turned over to them.

Shortly thereafter, the appellee was arrested and charged with criminal homicide. A preliminary hearing was held before District Justice Joseph A. Cannoni who ordered the appellee held for trial. The appellee then filed a motion to suppress the tapes and all derivative evidence alleging the tapes were recorded in violation of the Wiretapping and Electronic Surveillance Act, 18 Pa.C.S.A. § 5701 et seq. (the Act); thus, the tapes and all derivative evidence must be suppressed pursuant to 18 Pa.C.S.A. § 5721. A hearing was held before the Honorable John M. Cascio. Judge Cascio then granted the appellee’s motion to suppress the tapes and all derivative evidence. The Commonwealth filed a timely appeal wherein it has alleged that the trial court’s order suppressing the tapes seriously impairs its ability to present its case and prove the charges of criminal homicide against the appellee.

On appeal, the Commonwealth raises two issues for our review.

I. WHETHER THE LOWER COURT ERRED IN RULING THAT THE CONVERSATION BETWEEN THE DEFENDANT AND THE ALLEGED DECEDENT/VICTIM WAS A PROTECTED “ORAL COMMUNICATION” WITHIN THE MEANING OF THE WIRETAP AND ELECTRONIC SURVEILLANCE CONTROL ACT, 18 Pa.C.S.A. SECTION 5701, ET SEQ., THAT IS, THAT THE ORAL COMMUNICATION WAS UTTERED BY A PERSON WHO POSSESSED A REASONABLE EXPECTATION OF PRIVACY SUCH THAT THE COMMUNICATION WOULD NOT BE SUBJECT TO INTERCEPTION UNDER CIRCUMSTANCES JUSTIFYING SUCH EXPECTATION WHERE THE CONVERSATION OCCURRED UNDER CIRCUMSTANCES WHERE INDIVIDUALS NOT PARTY TO THE CONVERSATION ARE ABLE TO HEAR THE CONVERSATION WITHOUT ELECTRONIC OR MECHANICAL DEVICES.
II. ASSUMING ARGUENDO THAT THE CONVERSATION AT ISSUE IS A PROTECTED “ORAL COMMUNICATION,” WHETHER SUCH AN INTERPRETATION OF THE WIRETAP AND ELECTRONIC SURVEILLANCE CONTROL ACT UNCONSTITUTIONALLY INFRINGES ON THE RIGHT OF AN APARTMENT TENANT TO BE AWARE OF ACTIVITIES IN HER APARTMENT AS PART OF HER RIGHTS OF “POSSESSING AND PROTECTING PROPERTY” AS GUARANTEED BY ARTICLE I, SECTION 1 OF THE PENNSYLVANIA CONSTITUTION.

(Commonwealth’s Brief at 2).

We note at the outset that because Ms. Horner and Ms. Feldbauer were private individuals who were not acting under color of state authority, their non-consensual recording of the appellee’s and decedent’s conversation was not “state action,” and therefore, is not subject to suppression under the exclusionary rule of the United States Constitution’s Fourth Amendment prohibition against unreasonable search and seizure or under Article I, Section 8 of the Pennsylvania Constitution. See Commonwealth v. Kean, 382 Pa.Super. 587, 556 A.2d 374, appeal denied, 525 Pa. 596, 575 A.2d 563 (1989); Commonwealth v. Borecky, 277 Pa.Super. 244, 419 A.2d 753 (1980).

The Commonwealth contends in its first issue that the trial court erred in suppressing the tapes under 18 Pa. C.S.A. § 5721. The Commonwealth argues that the fact the appellee may have had expectation that his conversation with his estranged wife was not subject to interception is not conclusive, as the expectation of privacy must also be reasonable. The Commonwealth asserts that because limited portions of the appellee’s and decedent’s conversations were clearly audible through the naked ear to people standing outside the apartment, the parties lost any reasonable expectation of privacy; thus, their conversations were properly recorded. We disagree.

The focus and purpose of the Wiretapping and Electronic Surveillance Control Act is the protection of privacy. Commonwealth v. DeMarco, 396 Pa.Super. 357, 371, 578 A.2d 942 (1990) (emphasis in original). Section 5703 of the Act sets forth the law concerning the interception, disclosure, or use of wire, electronic, or oral communication as follows.

Except as otherwise provided in this chapter, a person is guilty of a felony of the third degree if he:
(1) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor , to intercept any wire, electronic or oral communication;
(2) intentionally discloses or endeavors to disclose to any other person the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication; or
(3) intentionally uses or endeavors to use the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know, that the information was obtained through the interception of a wire, electronic or oral communication.

The statute defines “intercept” as the “aural acquisition or other acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical or other device. 18 Pa.C.S.A. § 5702. See also Commonwealth v. Henlen, 522 Pa. 514, 516, 564 A.2d 905, 906 (1989); Commonwealth v. Kean, supra, 382 Pa.Super. at 597 n. 2, 556 A.2d 374. Accordingly, we find that Ms. Horner’s and Ms. Feldbauer’s use of an electronic baby monitor and receiver in conjunction with a tape recorder in order to record the conversations of the appellee and the decedent in the apartment to be an interception pursuant to 18 Pa.C.S.A. § 5702 and 5703.

However, the Act provides exceptions to the general prohibitions on the interceptions and disclosure of wire and oral communication. 18 Pa.C.S.A. § 5704(2) permits properly authorized investigative or law enforcement officers to intercept wire or oral communications involving criminal activities. 18 Pa.C.S.A. § 5704(2)(ii) also permits the interception of oral communication by a private individual who is one of the parties to a communication, if that private individual has given their prior consent and the attorney general, district attorney, or their specifically designated deputy attorney generals, or assistant district attorneys have reviewed the facts and are satisfied that the consent was freely and voluntarily given and have given their approval before the interception occurs. See Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988); Commonwealth v. Rodriguez, 519 Pa. 415, 548 A.2d 1211 (1988). Other than as provided in 18 Pa.C.S.A. § 5704(2)(ii), a private citizen may not intercept a wire or oral communication unless all parties to the communication have given their prior consent to such interception. Barasch v. Bell Telephone Company of Pennsylvania, 529 Pa. 523, 533, 605 A.2d 1198, 1203 (1992) (emphasis added); Commonwealth v. DeBlase, 357 Pa.Super. 71, 76, 515 A.2d 564, 566 (1986) (This Court refuses to create an exception when the private citizen who violated the Act is subsequently murdered.); 18 Pa.C.S.A. § 5704(4). Under the act, any aggrieved person may move to suppress the contents of any intercepted wire, electronic or oral communications or the evidence derived therefrom if the communications were unlawfully intercepted. Commonwealth v. DeMarco, supra, 578 A.2d at 948, 949; Commonwealth v. DeBlase, supra, 515 A.2d at 566; 18 Pa.C.S.A. § 5721.

Instantly, the Commonwealth has attempted to rely upon Commonwealth v. Cooper, 240 Pa.Super. 477, 362 A.2d 1041 (1976) for the proposition that because portions of the appellee’s and decedent’s conversation were easily overheard outside the apartment, the appellee lost all reasonable expectation of privacy, thus enabling Ms. Homer and Ms. Feldbauer to tape record their conversations inside the apartment. We find the Commonwealth’s reliance upon Commonwealth v. Cooper, supra, to be misplaced.

In Commonwealth v. Cooper, supra, a police officer, lawfully entitled to be in the adjacent hotel room, overheard appellant Cooper’s conversations concerning the sale of marijuana, unaided by any mechanical or electronic amplification device. Therefore, this Court properly held that because the conversations were carried on in a tone quite audible to a person standing outside the hotel room, the conversations were knowingly exposed to the public and were not subject to the protection under the Fourth Amendment as the risk of being overheard by an eavesdropper is an inherent condition and a risk assumed whenever we speak. See Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582 (1967); Hoffa v. United States, 385 U.S. 293, 301-03, 87 S.Ct. 408, 413-14, 17 L.Ed.2d 374, 381-82 (1966).

In the case at bar, unlike Commonwealth v. Cooper, supra, only limited excerpts of the appellee’s and decedent’s conversations were able to be overheard by parties outside the apartment without the aid of the improvised interception system. Accordingly, the appellee and decedent only lost their reasonable expectations of privacy as to the limited portions of their conversations which were overheard outside the apartment without the aid of the improvised interception system. The appellee and decedent did not lose their reasonable expectations of privacy to all of their conversations which occurred in the apartment on the January 19-20,1990 night, merely because some portions of their conversations were able to be heard outside the apartment. If we were to adopt the Commonwealth’s argument, we would be enabling any eavesdropper to immediately begin the unconsented mechanical or electronic amplification and interception of the conversations of anyone in their home once a portion of their conversation was able to be overheard outside the home with the naked ear. Clearly, this was not the result intended by the legislature when they adopted the Act, whose primary focus and purpose was the protection of privacy. Thus, we find no merit in the Commonwealth’s contention that Ms. Horner and Ms. Feldbauer were entitled to surreptitiously record all of the conversations between the appellee and the decedent which occurred inside the apartment on the night of January 19-20, 1990, because limited portions of their conversations inside the apartment were overheard by persons outside the apartment.

Moreover, the conduct of Ms. Horner and Ms. Feldbauer clearly violated the Act as neither the appellee or the decedent had given their prior consent to the interception and tape recording of their conversation inside the apartment as required by 18 Pa.C.S.A. § 5704(4). The fact that excerpts of the appellee’s and the decedent’s conversations were subsequently overheard outside the apartment is immaterial because Ms. Horner and Ms. Feldbauer had set up their improvised interception equipment in the apartment before the appellee and the decedent had even begun their conversations. Thus, Ms. Horner and Ms. Feldbauer had already decided to intercept the appellee’s and decedent’s conversation in violation of the Act before the appellee and decedent arrived at the apartment. Accordingly, the appellee and the decedent could not have possibly lost their reasonable expectation of privacy and impliedly consented to the interception of their conversations when the interception of their conversations inside the apartment had already commenced before any portion of their conversations were overheard outside the apartment without the aid of the improvised interception system.

In its second issue on appeal, the Commonwealth contends that any interpretation of the Act which prohibits a person with a possessory interest in a premises from monitoring activities on the premises unconstitutionally infringes upon their rights to possess and protect their property, and therefore, is unconstitutional under Article I, Section 1 of the Pennsylvania Constitution. The Commonwealth argues that under Commonwealth v. Goldberg, 208 Pa.Super. 513, 224 A.2d 91 (1966), a person having an interest in a property has a paramount right with regard to the use of the property. The Commonwealth asserts that when a person possessing a paramount interest consents to the use of her premises, there is an implied condition that the premises will not be used to the detriment of the paramount possessor’s interest; thus, the paramount possessor may monitor the activities of subordinate possessor to ensure that the premises are not being used to her detriment. We disagree.

We find that the Commonwealth’s reliance upon Commonwealth v. Goldberg, supra, to be misplaced as the case is both factually and legally distinguishable from the case before this Court. The Goldberg case arose under the long repealed Pennsylvania Anti-Wiretapping Statute, Act of July 16, 1957, P.L. 956 No. 411, (repealed). In Goldberg, the appellant was the named subscriber to a telephone in the marital home he shared with his wife. The appellant, suspecting his wife of infidelity, tapped his own phone in order to monitor the telephone calls between his wife and her purported paramour. The appellant was subsequently arrested and convicted of violating the Anti-Wiretapping Statute. This Court reversed the appellant’s conviction holding that the purpose of the Anti-Wiretapping Statute was to protect a telephone subscriber’s phone calls from being intercepted by a third person and not to protect the telephone line from being monitored by its own subscriber. Thus, the appellant, as the subscriber, possessed a paramount interest to intercept telephone conversations on the line when persons he permitted to use the telephone were doing so in detriment to the appellant’s business, household or marital interests. Therefore, the appellant, as the subscriber and possessor of a paramount interest in the telephone line, could not be convicted under the Anti-Wiretapping Statute for tapping his own line. Commonwealth v. Goldberg, supra, 208 Pa.Superior Ct. at 517, 224 A.2d at 93. However, this case was only concerned with whether the appellant violated the Anti-Wiretapping Statute and did not discuss whether the conversations intercepted by the appellant without the consent of the intercepted parties were admissible in any legal proceedings.

Subsequently, however, this exact issue has been addressed by our Supreme Court in Commonwealth v. Papszycki, 442 Pa. 234, 275 A.2d 28 (1971), which was decided under the repealed Anti-Wiretapping Statute and by this Court in both Commonwealth v. DeBlase, supra, and Commonwealth v. Baldwin, 282 Pa.Super. 82, 422 A.2d 838 (1980), which were decided under an earlier version of our current act and the repealed Anti-Wire Tapping Act, respectively. In each of these cases, both our Supreme Court and this Court have held that unless all parties have given their consent to the interception of their telephone conversations by a private individual, the evidence elicited through the illegal interception is inadmissible in any legal proceeding and must be suppressed. Furthermore, our current act requires that all parties to a communication must give their consent before any interception may occur. See Barasch v. Bell Telephone Company of Pennsylvania, supra. Finally, the Act permits any aggrieved person to move to suppress the contents of any intercept wire, electronic or oral communication, or evidence derived therefrom, taken in violation of the Act. See 18 Pa.C.S.A. § 5721.

Instantly, Ms. Homer is not on trial for violating 18 Pa.C.S.A. § 5704(4), rather it is the appellee who is on trial for murder. Thus, we are not called upon to determine whether Ms. Homer may be prosecuted for the unconsented recording of conversations in her own apartment, but rather whether the fruits of her unconsented interception of the conversations inside the apartment may be admitted into evidence against her roommate, the appellee. Accordingly, the Commonwealth’s argument that the Act unconstitutionally infringes upon Ms. Homer’s rights under Article I, Section 1 of the Pennsylvania Constitution to protect her property is not in issue as she is not being prosecuted for violating the act; therefore, this interesting issue cannot be resolved until it is raised by a party who is being prosecuted under the Act for the unconsented interception of conversations in their own dwelling. But see Commonwealth v. Murray, 423 Pa. 37, 51, 223 A.2d 102, 109 (1966) (under Article I, Section 1 of the Pennsylvania Constitution, “[t]he right of privacy is as much property of the individual as the land to which he holds title and the clothing he wears on his back.”). Here, the tapes and derived evidence sought to be utilized as evidence by the Commonwealth in its criminal homicide prosecution of the appellee were recorded by Ms. Homer and Ms. Feldbauer without the consent of either the appellee or the decedent. Due to this lack of consent, the tapes were taken in violation of 18 Pa.C.S.A. § 5704(4). The fact that one of the interceptors, Ms. Horner, resided in the orally leased premises with the appellee is immaterial as 18 Pa.C.S.A. § 5721 clearly specifies that upon motion, any wire, electronic, or oral communication intercepted in the violation of the Act must be suppressed. Thus, the trial court properly suppressed the tapes and all derivative evidence pursuant to 18 Pa.C.S.A. § 5721.

Finally, when the trial court entered the order granting the appellee’s motion to suppress, the trial court suppressed only the tapes of the conversations between the appellee and the decedent, and the testimony from any person regarding what he or she heard on the tapes. The trial court's order did not suppress at trial the testimony of any person regarding what he or she may have overheard outside the apartment without the aid of any electronic or mechanical amplification device; thus, the Commonwealth is free to present such evidence at trial.

Based upon the foregoing, the trial court’s order suppressing the tapes and all derivative evidence is affirmed.

Order AFFIRMED.

      . When the Commonwealth has certified that the suppression of evidence substantially handicaps the prosecution, “that certification is not contestable” and "in and of itself precipitates and authorizes the appeal.” Commonwealth v. Dugger, 506 Pa. 537, 545, 486 A.2d 382, 386 (1986); see also Commonwealth v. DeMarco, 396 Pa.Super. 357, 578 A.2d 942 (1990).

      . Article 1, section 1:
      All men are bom equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

      . Moreover, the principle on which the Goldberg court relied upon, that a telephone subscriber possesses an absolute right to record his own conversations and to protect the use made of his own telephone, which was first set forth in People v. Appelbaum, 277 App.Div. 43, 97 N.Y.S.2d 807, aff’d 301 N.Y. 738, 95 N.E.2d 410 (1950), is no longer the law of Pennsylvania. See Barasch v. Bell Telephone Company of Pennsylvania, supra (caller I.D. service held to be violative of 18 Pa.C.S.A. § 5704(4) as calling party has not consented to the capture of his or her phone number by the called party). See also Commonwealth v. Jung, 366 Pa.Super. 438, 531 A.2d 498 (1987) (highly critical of Commonwealth v. Goldberg, supra in dicta).


source: Caselaw Access Project

license: Public Domain

text:
    610 A.2d 1013
    COMMONWEALTH of Pennsylvania, Appellant, v. Yvonne R. MORGAN.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1992.
    Filed June 3, 1992.

      Syndi L. Norris, Asst. Dist. Atty., Carlisle, for Com., appellant.
    Robert J. Mulderig, Carlisle, appellee.
    Before WIEAND, MONTEMURO and KELLY, JJ.
   KELLY, Judge:

In this appeal we are asked to determine whether it is error to suppress inculpatory statements made by a suspect who has been advised of and thereafter exercises Miranda rights in a non-custodial setting. We find that under the circumstances herein, it was error to suppress the statements and reverse.

I. FACTS AND PROCEDURAL HISTORY

The trial court set forth its findings as follows:

1. On June 11, 1990, a patrolman of the Mechanicsburg Police Department, by telephone, asked the defendant to stop in the police department to discuss a theft incident at the York Federal Bank located in Mechanics-burg.

2. Defendant arrived with another female employee of the Bank. The patrolman explained generally about his investigation of the theft and told the defendant he wanted to hear her side of the story.

3. The defendant asked if she was under arrest. The patrolman said she was not and that she could leave at any time.

4. The patrolman then gave defendant her Miranda warnings,. She said that she understood and she signed a written waiver of her Miranda rights. A copy marked Commonwealth Exhibit No. 1 was introduced.

5. After she signed the waiver, the defendant stood up and said she did not want to talk and wanted to talk to an attorney.

6. The patrolman did not ask any questions at the time, but proceeded to tell the defendant what procedure he would then follow about filing charges before a District Justice and the setting of bail.

7. After the above was done, the defendant said she would give a statement. The officer said he could not talk to her since she said she initially wanted an attorney. The officer also reminded her again that she was free to leave and was not under arrest.

8. She then said that she did not want an attorney and would give a statement, which she did.

9. She was then placed under arrest.

Trial Court Opinion at 1-2. Thereafter, the defendant moved to suppress the statements made. The trial court granted the suppression request.

The Commonwealth has timely appealed the suppression order, alleging in good faith that it substantially handicaps its prosecution of the defendant, appellee. The Commonwealth urges that there existed no cause to exclude the statements from trial because the record reveals no evidence that the statements were derived unconstitutionally. After a thorough review of the relevant law and the facts of this case, we agree.

In concluding that appellee’s confession was involuntary, the trial court set forth essentially two grounds on which to base its decision. We will address each in turn.

II. PRESUMPTIVE COERCION

The first basis for the trial court’s decision may be seen from the following excerpt of the trial court opinion:

We are not aware of any factual situation on point in our county or state appellate decisions. Also, we do not wish to extend our appellate case law in holdings that suppress voluntary statements made by criminal defendants. We believe, however, that in this case defendant’s due process rights were violated by the officer’s actions. First, we believe that if the police advise a person of their Miranda rights, even in a non-custodial setting, and the person chooses to exercise their right to counsel, then that exercise should be honored by the police and all questioning should cease. We realize that the police are given little guidance in this area, but we believe that by taking this preventive measure, both the defendant’s due process rights and the police’s duty to find the truth will be protected. Thus, in this case all questioning and conversation should have ceased.

Trial Court Opinion at 8-9 (emphasis added).

The reasoning used in this portion of the trial court’s opinion is born, of course, from the doctrine announced in the landmark decision Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Sometimes called “presumptive coercion,” this doctrine’s evolution was chronicled most recently by the United States Supreme Court:

In Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, 10 ALR 3d 974 (1966), we established a number of prophylactic rights designed to counteract the “inherently compelling pressures” of custodial interrogation, including the right to have counsel present. Miranda did not hold, however, that those rights could not be waived. On the contrary, the opinion recognized that statements elicited during custodial interrogation would be admissible if the prosecution could establish that the suspect “knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Id., at 475, 16 L.Ed.2d 694, 86 S.Ct. at 1628, 10 ALR 3d 974.
In Edwards v. Arizona, 451 U.S. 477, 68 L.Ed.2d 378,101 S.Ct. 1880 (1981), we established a second layer of prophylaxis for the Miranda right to counsel: once a suspect asserts the right, not only must the current interrogation cease, but he may not be approached for further interrogation “until counsel has been made available to him,” 451 U.S. at 484-485, 68 L.Ed.2d 378, 101 S.Ct. 1880, [1885] — which means, we have most recently held, that counsel must be present, Minnick v. Mississippi, 498 U.S. -, 112 L.Ed.2d 489, 111 S.Ct. 486 (1990). If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect’s statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards. This is “designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights,” Michigan v. Harvey, 494 U.S. 344, 350, 108 L.Ed.2d 293, 110 S.Ct. 1176 [, 1180] (1990). The Edwards rule, moreover, is not offense-specific: once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present. Arizona v. Roberson, 486 U.S. 675,100 L.Ed.2d 704, 108 S.Ct. 2093 (1988).

McNeil v. Wisconsin, — U.S.-,-, 111 S.Ct. 2204, 2208, 115 L.Ed.2d 158, 167-68 (1991).

Instantly, despite its stated reluctance to do so, the trial court, in holding as it did, in fact added a chapter to the “presumptive coercion” chronicle. This we believe was error.

Here, the parties do not contend, the trial court did not find, and the facts do not suggest that appellee was in custody at the time she was questioned by the police officer. The account of the incident given by the police officer, which was in relevant part corroborated by appellee, established that appellee came to and remained at the police station of her own volition. She was repeatedly advised that she was free to leave at any point. She was also advised of her Miranda rights while at the police station. Significantly, appellee testified that she had understood that she was not under arrest and that she could have left the police station whenever she liked. N.T. 1/08/91 at 32-33. Under these circumstances, she was not legally in custody. See Berkemer v. McCarty, 468 U.S. 420; 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983); Commonwealth v. Ellis, 379 Pa.Super. 337, 355-57, 549 A.2d 1323, 1332 (1988).

Given this, it is clear the holdings in neither Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), nor its progeny, are applicable herein. It is well settled that, “Miranda warnings are necessary only on those occasions when a suspect is undergoing actual ‘custodial interrogation.’ ” Commonwealth v. Fento, 363 Pa.Super. 488, 492, 526 A.2d 784, 786 (1987); see also Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714; Commonwealth v. Ellis, supra, 549 A.2d at 1329 (citing cases). Thus, generally where the suspect is not in custody, the exercise of Miranda rights need not be honored. As Judge Wieand recently explained in a case strikingly similar to this, Commonwealth v. Reed, 400 Pa.Super. 207, 583 A.2d 459 (1990),

Instantly, it is clear that appellant was not in custody at the time he made the remark about getting counsel. He had voluntarily agreed to accompany the police to the station for further questioning and he had been informed repeatedly that he did not have to answer questions and was free to leave at any time. Indeed, he had agreed in writing, without coercion, that he understood that he wasn’t under arrest, was free to leave at any time, and could refuse to answer questions. When appellant suggested the possible need for a lawyer, Lieutenant Holmberg told him again that he was free to go. Appellant, however, did not leave. Instead, he remained and confessed to the killing. Under these circumstances, appellant’s statements were not subject to suppression merely because the questioning continued after he mentioned the possibility of getting a lawyer.

Id., 400 Pa.Superior Ct. at 218, 219, 583 A.2d at 464 (emphasis added). Although it failed to command a majority in this Court, this aspect of the Reed decision may find adequate support among several members of the United States Supreme Court. A 6-3 majority of that Court recently stated:

We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than “custodial interrogation”.... If the Miranda right to counsel can be invoked at a preliminary hearing, it could be argued, there is no logical reason why it could not be invoked by a letter prior to arrest, or indeed prior to identification as a suspect. Most rights must be asserted when the government seeks to take action they protect against. The fact that we have allowed the Miranda right to counsel, once asserted, to be effective with respect to future custodial interrogation does not necessarily mean that we will allow it to be asserted initially outside the context of custodial interrogation, with similar future effect.

McNeil v. Wisconsin, — U.S. -, -n. 3, 111 S.Ct. 2204, 2211 n. 3 115 L.Ed.2d 158, 171 n. 3 (1991) (emphasis added); see also Commonwealth v. Lewis, 407 Pa.Super. 186, 195-96, 595 A.2d 593, 597-98 (1991) (quoting McNeil, supra).

The only fact that makes this case unique is that here, unlike in any previous case, the police officer took the precautionary step of reading Miranda rights to a noncustodial suspect, before they were exercised. The trial court held that it was this fact that rendered the confession presumptively coerced. Our research has disclosed no appellate court which has held this to be the law. We are neither inclined nor empowered to be the first.

While we share the trial court’s legitimate concern that police are provided meaningful guidance in such difficult areas, we are mindful of the pitfalls of announcing additional bright line rules in this regard. Asked recently to give such guidance in a related context, the United States Supreme Court refused, reasoning that,

the police do not need our assistance to establish such a guideline; they are free, if they wish, to adopt it on their own. Of course it is our task to establish guidelines for judicial review. We like them to be “clear and unequivocal,” see e.g. Roberson, 486 U.S. at 681-682, 100 L.Ed.2d 704, 108 S.Ct. 2093, [at 2098-2099] but only when they guide sensibly, and in a direction we are authorized to go. Petitioner’s proposal would in our view do much more harm than good, and is not contained within, or even in furtherance of, the Sixth Amendment’s right to counsel or the Fifth Amendment’s right against compelled self-incrimination.

McNeil v. Wisconsin, supra, — U.S. at-, 111 S.Ct. at 2211, 115 L.Ed.2d at 171 (holding it inappropriate to rule that police may never initiate questioning of any person in custody who has requested counsel). The same may be true herein.

Ultimately, the question of whether and how far to extend the prophylactic measures first announced in Miranda is one of policy. The answer, which has vexed the United States Supreme Court throughout the years, has been a study of compromise, an example of a reslicing of the same Gordian Knot. Even a cursory review of the many relevant decisions of the United States Supreme Court reveals that the appropriate weight to accord the transcending values at stake is in no sense readily discernable. For example, in reversing a conviction based on a confession derived during an eight hour detention, Chief Justice Warren explained that:

[N]either the likelihood that the confession is untrue nor the preservation of the individual’s freedom of will is the sole interest at stake. As we said just last Term, “The abhorrence of society to the use of involuntary confession ... also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.” Thus a complex of values underlies the stricture against use by the state of confessions which, by way of convenient shorthand, this Court terms involuntary, and the role played by each in any situation varies according to the particular circumstances of the case.

Blackburn v. Alabama, 361 U.S. 199, 207, 80 S.Ct. 274, 280, 4 L.Ed.2d 242, 248 (1960) (quoting Spano v. New York, 360 U.S. 315, 320-21, 79 S.Ct. 1202, 1205-06, 3 L.Ed.2d 1265, 1270 (1959) (emphasis added)). Speaking through Justice Jackson, an earlier Supreme Court upheld a conviction based on a confession obtained under somewhat analogous circumstances, stating that:

We are not willing to discredit constitutional doctrines for protection of the innocent by making of them mere technical loopholes for the escape of the guilty. The petitioners háve had fair trial and fair review. The people of the State are also entitled to due process of law.

Stein v. New York, 346 U.S. 156, 196-97, 73 S.Ct. 1077, 1099, 97 L.Ed. 1522, 1548-49 (1953) (emphasis added).

It may well be true that the additional dose of prophylaxis prescribed by the trial court in this case is necessary to better guide police and to more appropriately measure the acceptability of confessions. It may also be true that to again move the bright line of Miranda would upset the delicate balance of interests the Court has achieved thus far. Indeed, there is reason to believe that at least two members of the United States Supreme Court will most assuredly dismiss any additional prophylaxis as unwise and unnecessary. Dissenting in Minnick v. Mississippi, supra, Justice Scalia expressed his view that:

Today’s extension of the Edwards prohibition is the latest stage of prophylaxis built upon prophylaxis, producing a veritable fairyland castle of imagined constitutional restriction upon law enforcement. This newest tower, according to the Court, is needed to avoid “inconsisten[cy] with [the] purpose” of Edwards’ prophylactic rule, ante, [— U.S.] at-, [111 S.Ct. at 487] 112 L.Ed.2d at 498, which was needed to protect Miranda’s prophylactic right to have counsel present, which was needed to protect the right against compelled self-incrimination found (at last!) in the Constitution.

498 U.S. at -, 111 S.Ct. at 497, 112 L.Ed.2d at 506 (Rehnquist, C.J. joins).

We do not know the ultimate wisdom of the trial court’s decision to presume coercion where, as here, Miranda warnings have been read, the right to counsel has been invoked, but questioning did not cease until a lawyer was present, in a non-custodial setting. Nor do we know for certain how either the Pennsylvania or the United States Supreme Court will view such a rule. We do recognize, however, that the trial court’s decision is based on yet another measure of prophylaxis which the trial court has, for good or bad, added to the Miranda “castle.” If a majority of either or both of the Supreme Courts chooses to endorse such additional prophylaxis, they may of course do so. In the absence of such Supreme Court guidance, however, we are unwilling to tip the balance of interests thus far achieved by endorsing such a rule ourselves. We hold, therefore, that it is error for a court to consider a confession presumptively coerced merely because a request for a lawyer is not honored where, as here, the suspect was not in custody at the time.

III. ACTUAL COERCION

The trial court’s alternative grounds for suppressing appellee’s inculpatory statements are as follows:

Secondly, and most controlling in this case, we believe that the officer, by advising her of the possible penalties that she might be subjected to, and by ignoring her request for an attorney, both overstepped his bounds and coerced defendant’s statement. Clearly, it was not the defendant who initiated the conversation after she had indicated that she wanted an attorney; it was the officer who initiated the conversation. But for the fear of possible penalties and the tone of the officer’s voice, we do not believe that the defendant would have given the statement. We believe, therefore, that the defendant’s statement was not made voluntarily and should be suppressed.

Trial Court Opinion at 9. In other words, the trial court determined, the appellant was also actually coerced into confessing.

The reasoning used in. this portion of the trial court’s opinion falls under the rubric of confession law which is grounded in the Fourteenth Amendment’s “Due Process” clause. In describing the history of this area of law, the Supreme Court has, only relatively recently, clarified the standards by which we must measure claims of actual coercion:

The Due Process Clause of the Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” Just last Term, in Miller v. Fenton, 474 U.S. 104, 109, 88 L.Ed.2d 405, 106 S.Ct. 445 [449] (1985), we held that by virtue of the Due Process Clause “certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned.”
Indeed, coercive government misconduct was the catalyst for this Court’s seminal confession case, Brown v. Mississippi, 297 U.S. 278, 80 L.Ed. 682, 56 S.Ct. 461. The Court has retained this due process focus, even after holding, in Malloy v. Hogan, 378 U.S. 1, 12 L.Ed.2d 653, 84 S.Ct. 1489 (1964), that the Fifth Amendment privilege against compulsory self-incrimination applies to the States.
Thus the cases considered by this Court over the 50 years since Brown v. Mississippi have focused upon the crucial element of police overreaching. While each confession case has turned on its own set of factors justifying the conclusion that police conduct was oppressive, all have contained a substantial element of coercive police conduct. Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.

Colorado v. Connelly, 479 U.S. 157, 163-64, 107 S.Ct. 515, 519-20, 93 L.Ed.2d 473, 481-82 (1986) (citations and footnotes omitted, emphasis added).

Measuring the instant case by the Colorado v. Connelly standard, we are compelled to disagree with the trial court that appellee was actually coerced into confessing. None of the factors the trial court identified may, alone or in concert, suffice to constitute actual coercion.

First, there is nothing inherently coercive about the fact that the officer warned appellee of her right to remain silent, of the fact that what she said could be used against her, of her right to cut off questioning whenever she so chose to, or of her right to an attorney. The decision to gratuitously apprise appellee of her Miranda rights in situations such as this, where the law did not require that such advice be offered, should be applauded, not deterred. This fact suggests that the police officer acted with an abundance of caution to insure that no answer be given without the benefit of a relevant legal education. To find fault with this would surely inhibit such spontaneous tutelage. Neither law nor logic would compel us to do so.

Nor is there anything sufficiently coercive about the fact that the appellee requested a lawyer and was not granted one in this case. It is true that appellee requested an attorney. It is also true, however, that appellee later affirmatively declined to have an attorney present when being questioned. No one held her inside the police station while she changed her mind. No one compelled her to talk with the officer without first gaining the advice of a lawyer. Appellee gave the statement only after being reminded of Miranda rights to which, under the circumstances (noncustodial setting), she was not even technically entitled. In light of these facts, it cannot be successfully maintained that the failure to cease questioning until an attorney was made available was in any way actually coercive.

Not even the officer’s decision to advise appellee of the procedures he would take in filing charges against her can be considered sufficiently coercive. In a related context, this Court has held that the threat to seek or obtain a search warrant, absent indication of intent to deceive, does not vitiate the consent to search a home given thereafter. Commonwealth v. Woods, 240 Pa.Super. 72, 368 A.2d 304 (1976); see also Commonwealth v. Bagley, 408 Pa.Super. 188, 201, 596 A.2d 811, 817 (1991). The clear import of this holding is that a suspect’s decision to waive a constitutional right cannot be made involuntary purely because of the fact that it was preceded by the lawful explanation of the potential legal consequences of failing to do so. Here, as in Commonwealth v. Woods, supra, the officer merely described the steps he would take if the suspect did not agree to cooperate at that time. As a matter of law, the officer was perfectly authorized to act in each way he described. Appellee was thus left with a “choice” of cooperating or waiting to see if the officer would in fact take the action he described. See Commonwealth v. Woods, supra. Such a choice suggests no coercion. Id.

Indeed, the only evidence in this record which might indicate that appellee was coerced into making an inculpatory statement is that relating to the “tone” of the officer’s voice. According to the appellee, the officer’s tone became somewhat “hostile” when describing the procedures he would take in investigationg the crime without her assistance. This evidence is relevant to our inquiry under Colorado v. Connelly, supra, as it relates to the degree to which appellee may have been intimidated into confessing without the presence of an attorney. See and compare Fare v. Michael C., 442 U.S. 707, 727, 99 S.Ct. 2560, 2573, 61 L.Ed.2d 197, 214 (1979) (“The officers did not intimidate or threaten respondent in any way.”). However, tone, and tone alone, cannot constitute constitutionally cognizable coercion. Given the fact that appellee, by her own admission, could have avoided such a presumably undesirable tone simply by walking out the same door of the police station through which she had voluntarily entered only a short time earlier, we believe that the officer’s tone of voice falls woefully short of meeting that level of “overreaching” or “oppressive” conduct proscribed in Colorado v. Connelly, supra. We are, therefore, convinced that under the current state of confession law, this confession cannot be shown to a product of actual coercion.

IV. CONCLUSION

For the foregoing reasons, we conclude that the trial court erred in determining that the instant confession was involuntarily made. The law regarding neither presumptively nor actually coerced confessions will support such a finding. Accordingly, we reverse the trial court’s order suppressing the appellant’s confession.

Suppression order Reversed.

WIEAND, J., concurs in the result.

      . See Oregon v. Elstad, 470 U.S. 298, 306 n. 1, 105 S.Ct. 1285, 1292 n. 1, 84 L.Ed.2d 222, 230-31 n. 1 (1985) ("[a] Miranda violation does not constitute coercion but rather affords a bright-line, legal presumption of coercion, requiring suppression of all unwarned statements.”) (emphasis in original); see also Commonwealth v. Henry, 410 Pa.Super. 324, 336-41, 599 A.2d 1321, 1327-29 (1991) (Kelly, J., concurring) (distinguishing actually and presumptively coerced confessions for the purposes of the harmless error doctrine).

      . We note that "the mere giving of Miranda warnings does not render an investigatory detention custodial.” Commonwealth v. Douglass, 372 Pa.Super. 227, 249 n. 9, 539 A.2d 412, 423 n. 9 (1988) (plurality) (iciting Commonwealth v. Haggerty, 495 Pa. 612, 615, 435 A.2d 174, 175 (1981)).

      . Compare Minnick v. Mississippi, supra (custodial setting); Commonwealth v. Santiago, 405 Pa.Super. 56, 591 A.2d 1095 (1991) (en banc) (same).

      . We note that the previous holdings regarding the voluntariness of a confession may well have provided for the consideration of additional factors in the totality of the circumstances. See generally Gehring, Colorado v. Connolly: The Demise of Free Will as an Independent Basis for Finding a Confession Involuntary, 33 Vill.L.Rev. 895 (1988) (and cases cited therein). However, we view the holding in Colorado v. Connelly, supra, as requiring that the focus of our attention be upon the conduct of the police. See id. We therefore limit our examination accordingly.

      . We note that had appellee been in custody at this point, the question of whether it was the police or appellee who reinitiated the interrogation would have been dispositive since police initiated interrogation under those circumstances would have been considered presumptively coercive. See Minnick v. Mississippi, supra; Commonwealth v. Santiago, 405 Pa.Super. 56, 71, 591 A.2d 1095, 1102 (1991) (en banc) ("Proof that counsel had been requested, that the police had reinitiated questioning thereafter, and that counsel was not actually present during any such interrogation, dispositively establishes that the fifth amendment right to counsel as currently expounded by the Supreme Court was violated."). Since appellee was not in custody at the time of the questioning, however, this determination is unnecessary.