Prosecutors will be allowed to use the statement provided by a man accused of stabbing a bicyclist on the South Side in 2012 even though his attorney had asked that police not speak to his client outside his presence.
Anthony Scholl Jr., 23, of West Mifflin is charged with aggravated assault and attempted homicide after police say he attacked Colin Albright on Sept. 5, 2012.
At a hearing last month before Allegheny County Common Pleas Judge Jeffrey A. Manning, Mr. Scholl's defense attorney, Ryan Tutera, asked that his client's statement to police be suppressed.
Mr. Tutera cited a number of reasons the statement should not be used against Mr. Scholl, including that his previous defense lawyer asked to be present during any interview with police and that his client was suffering from mental illness at the time of the statement and therefore could not make a knowing waiver of his right to remain silent.
In a 17-page opinion issued Friday, Judge Manning denied the defense motion, writing, "the Court finds that the commonwealth has met its burden, by the slimmest of margins, of establishing that the defendant's Miranda waiver was knowing, intelligent and voluntary."
According to police, Mr. Scholl was driving across the Hot Metal Bridge on Sept. 5, 2012, when Mr. Albright cut him off while riding a bicycle. Mr. Albright then walked up city steps near Josephine Street, detectives said, when Mr. Scholl chased him and stabbed him.
The knife narrowly missed Mr. Albright's brain stem and carotid artery, authorities said.
After several weeks, investigators identified Mr. Scholl as a possible suspect.
On Oct. 24, 2012, Daniel Joyce, Mr. Scholl's attorney on an unrelated case, learned detectives wanted to speak to him on the Albright case. Mr. Joyce specifically requested he be present for any questioning.
But the next day, detectives picked Mr. Scholl up at the Allegheny County Jail, where he was being held on the unrelated charges, and transported him to police headquarters to be interviewed.
The attorney was not contacted, although investigators did allow Mr. Scholl's mother to join him.
Assistant district attorney Kevin Chernosky argued to the judge at the hearing in December that Mr. Scholl had to be the one to assert his right to a lawyer.
In his opinion, Judge Manning agreed, writing that Pennsylvania case law specifically says that the right to counsel must be invoked by the individual in custody -- not a lawyer or parent.
"[W]hether an attorney physically appears in an attempt to represent the accused does not alter the fact that it is the accused who must invoke his Fifth Amendment right to counsel," Judge Manning wrote, quoting a 2013 Superior Court case.
In addition, he said the waiver must be made at the time of the initiation of a case, not for future prosecutions.
"At the time that the defendant was interrogated in this matter, the prosecution had not commenced," the judge wrote.
Judge Manning said in his opinion that he found the question of whether Mr. Scholl's statement should be precluded based on his mental health issues to be more difficult.
Mr. Tutera presented extensive evidence at the hearing that his client had been hospitalized in a voluntary commitment at Jefferson Regional Medical Center Oct. 9-19, 2012, where he was diagnosed with psychosis and bipolar disorder.
He was said to have homicidal ideation and be experiencing auditory hallucinations.
According to court records, Mr. Scholl stopped taking his prescribed medications on Oct. 19, which Judge Manning said, meant he was off of them for at least six days when he was questioned by police.
"Here there is evidence that a few days after his statement, the defendant was not competent," Judge Manning wrote. "The record does not establish, however, that that illness prevented him from fully understanding his rights and voluntarily waiving those rights on Oct. 25, 2012."
The judge also noted that neither the detectives nor Mr. Scholl's mother, who accompanied him to his questioning, said he appeared to have any problem understanding his rights that day.
"In the absence of testimony from an expert stating that, at the time the defendant gave his statement he was unable, due to mental illness, to knowingly and voluntarily waive those rights, this court is constrained to conclude that the defendant's waiver was knowing, intelligent and voluntary."
Paula Reed Ward: email@example.com or 412-263-2620.