J-A08035-16

                               2016 PA Super 120

IN RE: N.M.                             :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                                        :
APPEAL OF: N.M.                         :     No. 950 EDA 2015

             Appeal from the Dispositional Order March 17, 2015
            in the Court of Common Pleas of Philadelphia County
             Juvenile Division at No(s): CP-51-JV-0003317-2014

BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.:                           FILED JUNE 14, 2016

      N.M. (Appellant) appeals from the dispositional order entered March

17, 2015, after she was adjudicated delinquent of retail theft. Upon review,

we vacate the order and remand for further proceedings consistent with this

opinion.

      The   juvenile   court   summarized   the    testimony   offered   at   the

adjudicatory hearing in this matter as follows.

      Stephen McCartney was the first witness to testify.           Mr.
      McCartney testified that on December 21, 2014, he was working
      as a plain clothes loss prevention agent at Nordstrom Rack store
      located at 17th and Chestnut Streets, Philadelphia, Pa. On that
      date, Mr. McCartney said that he observed [Appellant], along
      with another young woman, J.B., enter the store at
      approximately 3:45 PM. Mr. McCartney identified [Appellant] at
      the bar of the court. Mr. McCartney explained that he began
      surveillance of the two young women because they were
      carrying seemingly empty bags and looking around suspiciously.
      Mr. McCartney testified that he maintained continuous
      observation of [Appellant] and [J.B.] once they were in the
      women’s shoe department on the third floor of the store. He
      explained that [J.B.] selected a pair of blue Ugg boots valued at
      $159.97[] and, approximately five (5) minutes later, they
      headed for the men’s shoe department where [J.B.] sat down
      and placed one boot into each of the two bags that were carried



* Retired Senior Judge assigned to the Superior Court.
J-A08035-16


      into the store. Mr. McCartney said he observed [Appellant] hand
      a black handbag to [J.B.] so a boot could be concealed in it. Mr.
      McCartney testified that while [Appellant] was carrying a black
      handbag and [J.B.] carried an empty H & M shopping bag, the
      women switched bags once the boots were placed in them. Mr.
      McCartney testified that he was approximately 20 to 25 feet
      away when he made these observations and he had a complete
      view of the transaction. Mr. McCartney watched the two women
      proceed down the elevator to the first floor where [Appellant]
      left the store through the Chestnut Street exit while [J.B.] left
      the store through the 17th Street exit passing all of the points of
      sale without stopping to pay for the merchandise.              Mr.
      McCartney testified that the police were called and both
      [Appellant and J.B.] were stopped and arrested.                The
      merchandise was returned to the store.

              The only witness to testify for the defense was [Appellant].
      She testified that she was at the Nordstrom Rack store on
      December 21, 2014 with her friend, [J.B.]. [Appellant] testified
      that her friend was shopping for boots and she sat down in the
      men’s section to try them on. [Appellant] indicated that [J.B.]’s
      books were in her black handbag, and it was heavy, so they
      exchanged bags. [Appellant] said that it was crowded on the
      first floor and she walked out the Chestnut Street exit when she
      looked back and realized that [J.B.] was[ not] behind her. She
      testified that she started to call [J.B.’s] cell phone while walking
      back to the store when security guards came towards her asking
      for the boot and grabbing the H & M bag. She was then taken
      back to the detention room and the bag was emptied out.
      [Appellant] testified that she did not know until that time that
      [J.B.] put the boot in the bag. [Appellant] further testified that
      she did[ not] see [J.B.] put the boots in the separate bags and
      she did[ not] realize that she carried a boot out of the store in
      the H & M bag.

Juvenile Court Opinion, 7/7/2015, at 3-5 (citations omitted). Of particular

import for purposes of this appeal, Appellant sought to call J.B. as a defense

witness at the adjudicatory hearing, but the juvenile court prevented her

from doing so out of concern for protecting J.B.’s Fifth Amendment right

against self-incrimination. N.T., 3/17/2015, at 17-20.


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J-A08035-16


       Following the adjudicatory hearing, the juvenile court adjudicated

Appellant delinquent for retail theft and placed Appellant on probation. This

appeal followed.

      On   appeal,    Appellant   presents   the   following   issues   for   our

consideration:

      1. Was not [A]ppellant … denied her constitutional rights to
         compulsory process, a fair trial and to present a defense
         when the juvenile court would not permit her teenage defense
         witness to provide completely exculpatory testimony by
         erroneously ruling that the teenager could not waive her
         privilege against self-incrimination?

      2. Did not the juvenile court err and abuse its discretion in
         adjudicating [A]ppellant delinquent without inquiring into
         whether, or making a finding that, [A]ppellant was in need of
         treatment, rehabilitation or supervision?

Appellant’s Brief at 3.

      “We will disturb a juvenile court’s disposition only upon a showing of a

manifest abuse of discretion.” In re C.A.G., 89 A.3d 704, 709 (Pa. Super.

2014). However, where an appeal presents a question of law, our standard

of review is de novo and our scope of review is plenary. In re R.R., 57 A.3d

134, 139 (Pa. Super. 2012).

      In her first issue, Appellant contends that the juvenile court improperly

prevented J.B. from waiving her privilege against self-incrimination and

testifying to corroborate Appellant’s defense that Appellant did not know that

J.B. had put the Ugg boot in Appellant’s bag.         Appellant’s Brief at 11.

Appellant argues that the juvenile court erred in so doing because, inter alia,



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J-A08035-16


J.B. was represented by counsel, fully advised of her right against self-

incrimination, and wished to testify on Appellant’s behalf.     Id.   Appellant

claims that the juvenile court’s decision violated her constitutional rights to

have compulsory process for obtaining witnesses in her favor, to a fair and

just trial, and to present a defense.   Id. at 11, 15-17.

      The Sixth Amendment to the United States Constitution and Article 1,

Section 9 of the Pennsylvania Constitution provide that, in all criminal

prosecutions, an accused has a right “to have compulsory process for

obtaining witnesses in his favor.” U.S. Const. amend. VI; Pa. Const. art. 1,

§ 9. This right attaches to juvenile proceedings pursuant to section 6338 of

the Juvenile Act, which provides that “[a] party is entitled to the opportunity

to introduce evidence and otherwise be heard in his own behalf and to cross-

examine witnesses.” 42 Pa.C.S. § 6338(a).

      Notwithstanding the above, the right to have compulsory process for

obtaining witnesses in one’s favor “is qualified to the extent of existing

testimonial privileges of witnesses, such as the privilege against self-

incrimination. The right to compulsory process guarantees a defendant the

process to obtain witnesses in his favor but does not grant him the right to

secure the attendance of any and all witnesses.”            Commonwealth v.

Lyons, 833 A.2d 245, 254 (Pa. Super. 2003). A juvenile’s Fifth Amendment

right against self-incrimination is also provided for in section 6338 of the




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J-A08035-16


Juvenile Act. See 42 Pa.C.S. § 6338(b) (“A child charged with a delinquent

act need not be a witness against or otherwise incriminate himself.”).

      Keeping these principles in mind, we observe that the issue in this

case is unusual in that it does not involve a challenge to an assertion of the

privilege by a juvenile, but instead a challenge to a court’s prohibition

against a juvenile’s waiver of that privilege:

      [Appellant’s Counsel]:   … Your Honor, at this time I would call
      [J.B.] to the stand.

      THE COURT: How do you expect to do this?

      [Appellant’s Counsel]: Your Honor, I believe [J.B.’s counsel] will
      colloquy [J.B.] on the stand about testifying --

      THE COURT: How old is [J.B.]?

      [Appellant’s Counsel]:   [J.B.] was born in ’98, so she is 16 years
      old, Your Honor.

      THE COURT: She’s not testifying. She is the coconspirator on
      the case where the Commonwealth just tried to amend for
      conspiracy. I would not allow that, but only because they didn’t
      do it in a timely fashion.

            What is the benefit to this juvenile to get up on the stand
      and tell a story?

      [Appellant’s Counsel]: Your Honor, she’s going to tell the truth
      that there was --

      THE COURT: It’s not about the truth, it’s about whether she has
      5th Amendment rights.

      [Appellant’s Counsel]: She does have 5th Amendment rights.

      THE COURT: Very good, she does. And that’s what [J.B.’s
      counsel] is here for, to be 5th Amendment counsel.



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J-A08035-16


     [Appellant’s Counsel]: I was not involved in the conversation
     about the 5th Amendment rights, but I understand from [J.B.’s
     counsel] that he explained what her rights are, the
     consequences of testifying here today. She said she still wants
     to testify, which is why we put the colloquy on the record.

     THE COURT: Sure, she might want to buy a car too but can
     she? No. You know why? Because she’s not 18 yet. She’s a
     juvenile. So just because she wants to testify doesn’t mean she
     gets to testify. And it’s pretty clear to the [c]ourt that she has
     some serious 5th Amendment issues.

     [Appellant’s Counsel]: Understood, Your Honor.

     THE COURT: Was she ever arrested?

     [Appellant’s Counsel]: She was arrested, Your Honor.

     THE COURT: And is that still coming up?

     [J.B.’s Counsel]: I can tell the [c]ourt that she was -- her case
     was diverted. She got GAP, and she is not quite completed that
     program.

     THE COURT: Okay. So then she has double exposure.

     [J.B.’s Counsel]:   I’ve advised her, and she understands her
     exposure.

     THE COURT: Have you advised her not to testify?

     [J.B.’s Counsel]: I have advised her of all of her options, Your
     Honor. If it was my decision, I would tell her not to, but she’s
     indicated that she wants to.

     THE COURT: I’m not saying that. What difference does it make
     what she wants to do? The idea is that I appointed you as her
     counsel to advise her legally what she should do. It’s pretty
     clear to me that legally she shouldn’t testify, so I’m not going to
     allow her to testify.

N.T., 3/17/2015, at 17-20.




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J-A08035-16


        This Court and the Pennsylvania Supreme Court have recognized that

the right against self-incrimination is personal and thus cannot be invoked

by another. See Commonwealth v. Hall, 701 A.2d 190, 198 (Pa. 1997)

(“Since one’s Sixth Amendment and Fifth Amendment rights are personal,

they cannot be invoked by another party.”); Hull v. Hannahstown Mutual

Ins. Co., 678 A.2d 815, (Pa. Super. 1996) (explaining that “[o]ur Supreme

Court has held that fifth amendment rights are personal to the individual and

may not be asserted by another,” and concluding that the trial court

improperly invoked the privilege on behalf of a witness). Nevertheless, we

are well aware of the concern regarding “the innate disadvantages

associated with the immaturity of most youth” and the need to balance

those    considerations   against   the   interests   of   society   and   justice.

Commonwealth v. Williams, 475 A.2d 1283, 1287 (Pa. 1984).                       In

Williams, which addressed a juvenile’s waiver of his Miranda1 rights in the

context of providing a confession during police interrogation, our Supreme

Court held:

               The requirements of due process are satisfied, and the
        protection against the use of involuntary confessions which law
        and reason demand is met by application of the totality of
        circumstances analysis to all questions involving the waiver of
        rights and the voluntariness of confessions made by juveniles.
        All of the attending facts and circumstances must be considered
        and weighed in determining whether a juvenile’s confession was
        knowingly and freely given. Among those factors are the



1
    Miranda v. Arizona, 384 U.S. 436 (1966).


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J-A08035-16


        juvenile’s youth, experience, comprehension, and the presence
        or absence of an interested adult.[2]

Id. at 1288. Other factors to consider in this context also include “(1) the

duration and means of an interrogation; (2) the defendant’s physical and

psychological state; (3) the conditions attendant to the detention; (4) the

attitude of the interrogator; and (5) any and all other factors that could

drain a person’s ability to withstand suggestion and coercion.” In re V.C.,

66 A.3d 341, 351 (Pa. Super. 2013) (internal quotation marks omitted)

(providing further that waiver must be made voluntarily, knowingly, and

intelligently).

        Both Appellant and the Commonwealth draw a connection between the

case sub judice and those concerning a juvenile’s waiver of his or her

Miranda rights in the context of police interrogations, as there appears to

be no binding precedent addressing the specific issue of whether a court can

preclude a juvenile witness from waiving his or her Fifth Amendment rights

to provide testimony on behalf of a defendant at trial.           We observe that

there    is   persuasive   authority   from   other   jurisdictions   that   supports

application of a totality-of-the-circumstances approach herein. For example,

2
  We note that “the ‘interested adult’ rule …. provided that no person under
the age of eighteen years could waive his right to remain silent and his right
to the assistance of counsel without being provided an opportunity to consult
with an interested adult, who is informed of the juvenile’s rights and is
interested in the welfare of the juvenile.” Williams, 475 A.2d at 1286-87.
As indicated above, the presence or absence of an interested adult is no
longer a per se requirement, but one factor in determining the voluntariness
of a juvenile’s waiver of his or her Miranda rights. Id. at 1288; In re V.C.,
66 A.3d 341, 351 (Pa. Super. 2013).


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J-A08035-16


in Garza v. Texas, 248 S.W.3d 742 (Tex. App. 2008), a mother was

arrested for stealing merchandise from a department store. Id. at 742-43.

Her daughter, C.M., was the only defense witness at trial. Id. at 743. Prior

to C.M.’s taking the stand, the trial court learned upon inquiry that juvenile

charges were pending against C.M. as a result of the same incident and thus

appointed counsel to advise C.M. of her rights with regard to testifying at

her mother’s trial.   Id.   C.M. eventually was called as a witness, at which

time she acknowledged that she had visited with her appointed attorney,

that he had explained to her the ramifications of her testimony, and that she

agreed to testify despite her conversation with her attorney. Id. at 743-44.

Through her testimony, C.M. accepted all responsibility for the theft which

had occurred. Id.

      In rejecting the mother’s claim on appeal,3 the Texas Court of Appeals

looked favorably upon the manner in which the trial court handled C.M.’s

testifying:

      Here, when placed in context, the record does not support
      appellant’s contention that the trial court’s remarks and cited
      conduct were intended to, nor had the effect of, coercing C.M. to
      alter her testimony. Rather, the record shows that the trial court
      engaged in the conduct to protect the rights of an unrepresented
      minor, who was subject to pending juvenile charges, and to
      insure that C.M. was not pressured or manipulated by her
      mother to take the blame for the offense.

3
  The mother argued that “the trial court violated her right to due process of
law under the Fourteenth Amendment by making statements to the sole
defense witness [and engaging in conduct] resulting in and calculated to
dissuade the witness from clearing [the mother] of the accused offense.”
Garza, 248 S.W.3d at 744.


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J-A08035-16



             Nor was the tenor of the trial court’s questions and
      remarks directed at C.M. overbearing or coercive. Rather, the
      trial court’s tenor was inquisitive and cautious with the apparent
      focus being to insure that C.M. understood the incriminating
      effect of her testimony and to make certain that C.M.’s waiver of
      her right against self-incrimination was made intelligently,
      voluntarily, and independent of her mother’s influence.

Id. at 745-46 (noting further that “C.M. did not decline to testify as a result

of the trial courts actions” and that “C.M. implicitly waived her right against

self-incrimination and testified in her mother’s defense[ d]espite appointed

counsel’s presumed advice”). Thus, looking at the various factors present in

the case (i.e., that C.M. had charges pending from the same incident, had

appointed counsel, presumably was advised of her right against self-

incrimination, and had not been subject to coercion),4 the Texas Court of

Appeals found no error.

      In State v. Melina, 210 N.W.2d 855 (Minn. 1973), the defendant was

convicted of receiving or concealing stolen property with respect to a bicycle

he had been found riding. Id. at 855. At trial, the “defendant testified that

he got [the] bicycle from Marvin Bolles, but not to keep, only to use. [The

d]efendent testified that he did not know where Marvin got the bicycle.” Id.

The defendant called Marvin Bolles and another individual, who were two of

the defendant’s juvenile companions at the time of the arrest, as defense


4
  The Court also observed that the mother “appear[ed] to suggest that the
trial court’s conduct in some manner shaded or inhibited C.M.’s testimony,”
but rejected that contention because it was not supported by the record.
Garza, 248 S.W.3d at 746.


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J-A08035-16


witnesses, but the “trial court refused to permit either to waive his privilege

against self-incrimination” on the basis that they were juveniles and

incapable of doing so. Id. at 855-56.

      On appeal, the Supreme Court of Minnesota concluded that, “[w]hile in

the instant case the court’s action reflected a natural concern for the

constitutional rights of the juveniles called as defense witnesses,” the trial

court erred in preventing the juvenile defense witnesses from testifying

based solely on the fact that they were juveniles.      Id. at 856. The Court

further explained that

      [w]hen it is clear to a trial court that a juvenile by testifying will
      incriminate himself, it becomes incumbent upon the court to see
      that independent counsel, a parent, or other competent adult
      adviser is obtained to advise the juvenile concerning his
      constitutional privilege against self-incrimination. The court can
      interrogate and satisfy itself that the right was intelligently
      waived, if such be the case. … If, after proper advice by
      independent counsel, an adult adviser, or parent, the juvenile
      wishes to testify, the court should allow his testimony.

Id. (citations omitted).

      Upon review, we likewise conclude that a juvenile may waive his or her

right against self-incrimination in the context of providing witness testimony

if the waiver is knowing, intelligent, and voluntary. In determining whether

such waiver is proper, we believe that a totality-of-the-circumstances test

strikes the proper balance between accounting for the disadvantages

associated with one’s youth and ensuring the interests of justice are served.

We therefore adopt that test today and, in so doing, hold that the following



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J-A08035-16


factors are among those to be considered when implementing this approach:

“the juvenile’s youth, experience, comprehension, and the presence or

absence of an interested adult,” Williams, 475 A.2d at 1288; the presence

or absence of appointed counsel; the advice provided by counsel; and

whether the juvenile was facing criminal charges arising from the same

incident at issue.     Moreover, any evidence of coercion or improper

suggestion on behalf of the defendant, other witnesses, the attorneys

involved, and the juvenile court is also to be considered. See In re V.C., 66

A.3d at 351 (stating that “the relinquishment of the right must have been

voluntary in the sense that it was the product of a free and deliberate choice

rather than intimidation, coercion or deception”). Finally, the juvenile court

shall conduct an on-the-record colloquy to ensure that the juvenile is fully

aware of both “the nature of the right being abandoned and the

consequences of the decision to abandon it.” Id.

      Turning to the circumstances of this case, the juvenile court offered

the following reasoning for its decision to preclude J.B. from waiving her

privilege against self-incrimination:

            In order to protect the Fifth Amendment rights of the
      witness[], counsel was appointed to represent her. Further, the
      purpose of the in[-]court colloquy was to determine whether the
      witness understood that she could remain silent pursuant to her
      Fifth Amendment right against self-incrimination. The witness’s
      waiver of her right to remain silent was significant to the [c]ourt
      because the witness was also facing charges arising from the
      facts of the instant case. It was clear to the [c]ourt that counsel
      advised [J.B.] not to testify. Furthermore, [J.B.’s] parents were
      not present in court and did not participate in the discussion with


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J-A08035-16


      counsel about their child’s waiver of her Fifth Amendment rights.
      Under [s]ection 6338 of the Juvenile Act, this [c]ourt refused to
      permit her testimony.

Juvenile Court Opinion, 7/7/2015, at 6-7.          Thus, the juvenile court

considered many, but not all, of the factors outlined above in precluding J.B.

from waiving her Fifth Amendment rights.

      Nevertheless, we conclude that a remand is proper in this case

because, notwithstanding the juvenile court’s representation that an on-the-

record colloquy of J.B. occurred, the court did not cite—and the record does

not reveal—that such a colloquy was in fact conducted. In the absence of

this colloquy, we have little basis upon which to confirm that J.B. was fully

aware of both the nature of her Fifth Amendment right against self-

incrimination and the consequences of waiving that right.      Moreover, we

have no indication of the manner in which her youth, experience, and

comprehension impacted her decision, or whether there was any indication

that J.B. was coerced or otherwise influenced improperly when making her

decision.   Given these circumstances (i.e., no on-the-record-colloquy), we

hold that the juvenile court’s refusal to permit J.B. to waive her Fifth

Amendment right was in error.5 Thus, Appellant is entitled to a new


5
  The Commonwealth argues that Appellant did not preserve her claim
because she failed to make a sufficient offer of proof as to the substance of
J.B.’s testimony. Commonwealth’s Brief at 10-12. We agree with Appellant
that, as demonstrated by the record, she was, for all intents and purposes,
precluded from making an adequate offer of proof by the juvenile court.
See Romeo v. Manuel, 703 A.2d 530, 534 n.2 (Pa. Super. 1997)
(addressing an issue “as properly before this Court” where there was no


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J-A08035-16


disposition wherein the juvenile court shall perform a proper colloquy with

respect to J.B.’s waiver of her Fifth Amendment rights and give full

consideration to all of the factors outlined above.

      Given our disposition above, we need not render a decision on

Appellant’s second issue. However, in the event that the juvenile court finds

on remand that Appellant committed retail theft, we remind the court of its

responsibilities pursuant to Section 6341(b) of the Juvenile Act:

      (b) Finding of delinquency.--If the court finds on proof
      beyond a reasonable doubt that the child committed the acts by
      reason of which he is alleged to be delinquent it shall enter such
      finding on the record and shall specify the particular offenses,
      including the grading and counts thereof which the child is found
      to have committed. The court shall then proceed
      immediately or at a postponed hearing, which shall occur
      not later than 20 days after such finding if the child is in
      detention or not more than 60 days after such finding if
      the child is not in detention, to hear evidence as to
      whether the child is in need of treatment, supervision or
      rehabilitation and to make and file its findings thereon. …
      In the absence of evidence to the contrary, evidence of the
      commission of acts which constitute a felony shall be sufficient to
      sustain a finding that the child is in need of treatment,
      supervision or rehabilitation. If the court finds that the child is
      not in need of treatment, supervision or rehabilitation it shall
      dismiss the proceeding and discharge the child from any
      detention or other restriction theretofore ordered.



offer of proof on the record but the trial judge had prevented the appellant
from approaching sidebar regarding the evidentiary ruling, explaining that
“[t]his Court will not hold the lack of an offer of proof against [the] appellant
because of the trial court’s refusal to accept the offer of proof”). We further
agree that the substance of J.B.’s testimony was apparent from the context.
See Pa.R.E. 103(a)(2) (“A party may claim error in a ruling to … exclude
evidence only[] if … a party informs the court of its substance by an offer of
proof, unless the substance was apparent from the context.”).



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J-A08035-16


42 Pa.C.S. § 6341(b) (emphasis added). See Commonwealth v. M.W., 39

A.3d 958, 962 (Pa. 2012) (holding that “a juvenile court must determine (1)

that the juvenile committed the delinquent acts alleged; and (2) that the

juvenile is in need of treatment, supervision, or rehabilitation, before it may

enter an adjudication of delinquency”) (emphasis in original).

      Based on the foregoing, we conclude that the juvenile court erred in

preventing J.B. from waiving her Fifth Amendment right against self-

incrimination without conducting a proper on-the-record colloquy of J.B. and

without full consideration of all of the factors set forth above. Accordingly,

we vacate the March 17, 2015 dispositional order and remand for a new

proceeding consistent with this opinion.

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/14/2016




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