J-A03038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.R., A MINOR         :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                                          :
                                          :
APPEAL OF: J.R., A MINOR                  :         No. 2684 EDA 2014

              Appeal from the Dispositional Order August 15, 2014
                In the Court of Common Pleas of Lehigh County
              Juvenile Division at No(s): CP-39-JV-0000318-2014


BEFORE: GANTMAN, P.J., MUNDY J., and DUBOW, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED MARCH 30, 2016

        Appellant, J.R., appeals from the dispositional order entered in the

Lehigh County Court of Common Pleas, following his adjudication of

delinquency for three counts of indecent assault.1 We affirm.

        In its opinion, the juvenile court fully and correctly sets forth the

relevant facts and procedural history of this case.   Therefore, we have no

reason to restate them.      We add only that the court denied Appellant’s

suppression motion on July 22, 2014, and adjudicated Appellant delinquent

on three counts of indecent assault. The court imposed juvenile probation

on August 15, 2014, until further notice of the court.    On September 11,

2014, Appellant timely filed a notice of appeal. The court ordered Appellant

on September 16, 2014, to file a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b).       The court granted Appellant’s



1
    18 Pa.C.S.A. § 3126.
J-A03038-16


request for an extension of time, and Appellant timely filed his Rule 1925(b)

statement on October 31, 2014.

      Appellant raises the following issue for our review:

         WHETHER THE [JUVENILE] COURT ERRED IN FAILING TO
         GRANT APPELLANT’S MOTION TO SUPPRESS STATEMENTS
         WHERE APPELLANT’S WAIVER OF HIS MIRANDA RIGHTS
         WAS      INVOLUNTARY,     UNKNOWING,     AND/OR
         UNINTELLIGENT IN THAT IT WAS MADE WITHOUT A FULL
         AWARENESS OF THE RIGHTS BEING ABANDONED AND/OR
         CONSEQUENCES OF GIVING UP THOSE RIGHTS?

(Appellant’s Brief at 5).

      We review the denial of a suppression motion as follows:

         Our standard of review in addressing a challenge to a
         [juvenile] court’s denial of a suppression motion is limited
         to determining whether the factual findings are supported
         by the record and whether the legal conclusions drawn
         from those facts are correct.

            [W]e may consider only the evidence of the
            prosecution and so much of the evidence for the
            defense as remains uncontradicted when read in the
            context of the record as a whole. Where the record
            supports the findings of the suppression court, we
            are bound by those facts and may reverse only if the
            court erred in reaching its legal conclusions based
            upon the facts.

Commonwealth v. Williams, 941 A.2d 14, 26-27 (Pa.Super. 2008) (en

banc) (internal citations and quotation marks omitted).      “It is within the

suppression court’s sole province as factfinder to pass on the credibility of

witnesses and the weight to be given their testimony.” Commonwealth v.

Clemens, 66 A.3d 373, 378 (Pa.Super. 2013) (quoting Commonwealth v.

Gallagher, 896 A.2d 583, 585 (Pa.Super. 2006)).

                                     -2-
J-A03038-16


      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Kelly L.

Banach, we conclude Appellant’s issue merits no relief. The juvenile court’s

opinion comprehensively discusses and properly disposes of the question

presented.    (See Juvenile Court Opinion, filed July 22, 2014, at 7-9)

(finding:   Detective   contacted   Appellant’s   stepmother,   who   confirmed

Appellant’s uncle and family friend could act as interested adults on

Appellant’s behalf; stepmother permitted detective to speak with Appellant

in presence of uncle and family friend; prior to Appellant’s interview,

Detective spoke with uncle and family friend outside interview room and

discussed nature of incidents that led to Appellant’s questioning; Detective

showed uncle and family friend photo of Appellant on city surveillance

system; tone of interview was conversational, as Appellant requested to

speak with Detective outside presence of uncle and family friend, and

disclosed information unknown to police; Detective gave Appellant Miranda

waiver form, explained that form was given to all juveniles to read and

consider, and that form contained Appellant’s rights; Detective told Appellant

to discuss waiver form with his uncle and family friend, and indicated where

to sign; court reviewed audio/videotape of interview, which showed

Appellant’s family friend holding waiver form and reading it aloud in

Spanish; court also observed Appellant’s uncle sign waiver form; Appellant’s

uncle gave Detective permission to speak with Appellant alone, as


                                      -3-
J-A03038-16


Appellant’s stepmother authorized Appellant’s uncle to act as “parent”;

Detective told Appellant he could stop talking to Detective and speak with

his uncle at any time; Appellant’s uncle and family friend were interested

and informed adults; Appellant’s uncle read and voluntarily signed Miranda

waiver form; audio/videotape of police interview and Detective’s testimony

at suppression hearing showed Appellant understood and comprehended

questions posed to him in interview, and appropriately responded to

questions). The record supports the court’s decision; therefore, we have no

reason to disturb it.     Accordingly, we affirm on the basis of the juvenile

court’s opinion.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/30/2016




                                      -4-
                                                                     Circulated 03/09/2016 03:40 PM




    IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA
                         JUVENILE DIVISION


In Re: J.M.R.

                                                     No. 2014-423
                                                     CP-39-JV-318-2014



                                         OPINION

KELLY L. BANACH, J.:                                                      ·=)
                                                                          .·-                    ,\·'' ~'·},"
                                                                          \....-r·.          ~   -·


       A Motion to Suppress was filed in the above-captionedmatter on J·;t1, :ZS14.
                                                                          ..    ·~    ....
In said Motion, the Juvenile sought to suppress the statement he gave to Dffi:;~tiv~

John Buckwalter of the Allentown Police Department during a custodial interviewon

May 9, 2014. On June 6, 2014, the Court schedule did not permit the Motionto be

heard and the matter was rescheduled to June 12, 2014. On June 10, 2014, counsel

for the Juvenile filed an Amended Motion to Suppress. In said Motion, the Juvenile

sought to suppress the statement made to DetectiveBuckwalter, allegingthat it was

not voluntary inasmuch as it was not knowingly and intelligentlygiven because a) he

was not informed of the nature of the charges prior to being interviewed;and b) the

totality of the circumstances surrounding the interview demonstrates that he did not

have a "substantive understanding of the warnings given to him, the nature of his

Fifth Amendment rights, or the consequences of waivingthose rights." Juv. Amend.

Mot. to Suppress, June 10, 2014, ,r10.

      On June 12 and June 17, 2014, the Court heard the Juvenile's Motion to

Suppress, including testimony and arguments of counsel. At the conclusion of the

June 17, 2014 Hearing, the parties were permitted to submit Briefs relevant to the



                                            2
Motion to Suppress by July 1, 2014 and the Court took the matter under advisement.

Briefs were timely submitted and this Opinion follows.

                                 SUMMARYOF THE FACTS

      On April 30, May 5, and May 8, 2014, the Allentown Police Department received

reports of a juvenile actor wearing a school uniform (blue blazer with an emblem)

attacking women in Center City Allentown. Investigation led the police to determine

that the school uniform was that of the Roberto Clemente Charter School, located in

Allentown. Police city camera footage was obtained and the Juvenile, J.M.R., was

identified as the juvenile actor on the video.

       On May 9, 2014, Detective John Buckwalter of the Allentown Police Special

Victims Unit called J.M.R.'s residence.    An individual identified himself as J.M.R.'s

uncle and told the detective that J.M.R.'s parents were in New York. Detective

Buckwalter asked the uncle to have the parents call him. J.M.R.'s stepmother, Maria

Peralta, called Detective Buckwalter.     He told her that he wished to speak to J.M.R.

about a crime and that he may be in trouble, although he did not explain the specific

allegations. Detective Buckwalter asked her to have a biological family member bring

J.M.R. to police headquarters.    Their conversation lasted approximately 5 minutes and

Detective Buckwalter was able to ascertain that J.M.R.'s stepmother was not a native

English speaker.

       J.M.R.'s stepmother called Detective Buckwalter back and told him that

J. M .R.'s uncle would bring him to headquarters    to speak with the detective. A short

time later, J.M.R.'s uncle, Miguel Tineo, and Mr. Tineo's employee/friend, Elvido

Delacruz, responded to headquarters       with J.M.R. Upon their arrival, the Juvenile was

placed in an interview room and the two adults remained in a hallway near the

interview room. Detective Buckwalter telephoned J.M.R.'s stepmother and obtained


                                               3
consent to speak with J.M.R. with his uncle present.   Detective Buckwalter

determined that the uncle's command of the English language was poor, but that Mr.

Delacruz's English was better.   Detective Buckwalter explained to Mr. Tineo and Mr.

Delacruz that he wanted to ask J.M.R. a few questions, that J.M.R. was doing

something bad and that the behavior had to stop, and that J.M.R. would go home that

day. The detective showed the men a picture obtained from the camera surveillance,

which showed the actor in question.   Mr. Tineo and Mr. Delacruz conceded that the

      T. /v1. "R.         was the juvenile in the picture. DetectiveBuckwalter also

recalled explaining J.M.R.'s Miranda rights to the adults. Because there was no

Spanish-speaking detective available at the time and because Mr. Delacruz appeared

to understand Detective Buckwalter, he permitted both Mr. Tineo and Mr. Delacruz to

be present during the interview with J.M.R.

      The interviewwith J.M.R. was audio and videotaped. At the beginning of the

interview, DetectiveBuckwalter explained that it was his desire to get the incidents in

Allentownto stop. He further explained that he would be leaving the room so that

J.M.R., his uncle, and Mr. Delacruz could discuss his Miranda rights. J.M.R.

requested that he be permitted to speak with Detective Buckwalter outside the

presence of his uncle and Mr. Delacruz. DetectiveBuckwalter told J.M.R. that was

possible, but to discuss that with his uncle to be sure that all were in agreement.

Detective Buckwalter left the room, giving Mr. Tineo the AllentownPolice Department

Miranda Rights form, which is in both English and Spanish, before he left so that the

three could discuss the Miranda rights and J.M.R.'s willingness to give up those

rights. DetectiveBuckwalter stopped the audio and video recorder at that point, but

not before the camera recorded Mr. Tineo reading the Miranda form aloud, in Spanish,

to J.M.R.


                                            4
       When Detective Buckwalter returned to the room, J.M.R. was signing the

Miranda form and passing it to his uncle to sign. Again, J.M.R. requested that he be

able to speak to Detective Buckwalter alone. With Mr. Tineo's consent, Mr. Tineo and

Mr. Delacruz left the room. Detective Buckwalter first obtained some biographical

information from J.M.R. The Juvenile began by speaking about an incident involving

him throwing a rock at a police car and then began to tell Detective Buckwalter that

he began to "grab people's butt." J.M.R. stated that he would see a girl walk into an

alley and would go grab the girl's "butt." J.M.R. indicated that he first began to

engage in this type of behavior a short time prior and that he had done this to about

10 girls. He indicated that the last one was an adult woman. He explained that he

would grab his victims from behind, placing their arms behind their backs so that they

would not hit him and would touch them "in their butt." J.M.R. also indicated that he

would touch his victims in the vagina and around their breasts.    J.M.R. indicated that

he would sometimes whisper in their ear, at one time telling a victim not to move

because he had a gun and used a toy gun on his victims three times. J.M.R. indicated

that he attempted to get a hand down one of the victim's pants, but was unsuccessful.'

       The interview with J.M.R. was conducted in English and J.M.R.'s responses to

Detective Buckwalter's questions were appropriate, with the Juvenile offering more

information than the police knew at the time. The tone of the interview was

conversational and there was no force or threats made by the police during the

interview. The entire interview process took approximately 35 minutes and the

Juvenile was released to his uncle after it concluded.

                        DISCUSSION AND CONCLUSIONS OF LAW

       In his Letter Brief and Motion to Suppress, the Juvenile argues that his

constitutional   rights pursuant   to the Fifth and Fourteenth Amendments to the United


                                              5
States Constitution, and Article I, section 9 of the Pennsylvania Constitution were

violated when he spoke to Detective Buckwalter.         Specifically he argues that his waiver

of his Miranda rights was not knowingly, intelligently and voluntarily made.

       First, we note that when a challenge is made to the waiver of Miranda rights by

a juvenile, "[r]egardless of whether a waiver of Miranda is voluntary, the

Commonwealth must prove by a preponderance of the evidence that the waiver is also

knowing and intelligent." In re V.C., 66 A.3d 341, 351 (Pa.Super. 2013).

              Miranda holds that "[t]he [juvenile]may waive effectuation"
              of the rights conveyed in the warnings "providedthe waiver
              is made voluntarily, knowingly and intelligently."The
              inquiry has two distinct dimensions. First, 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. Second, the
              waiver must have been made with a full awareness both of
              the nature of the right being abandoned and the
              consequences of the decision to abandon it. Only if the
              "totality of the circumstances surrounding the
              interrogation" reveals both an uncoerced choice and the
              requisite level of comprehension may a court properly
              conclude that Miranda rights have been waived.
                                           In re T.B., 11 A.3d 500, 505-506
                (Pa. Super. 2010)(citing Commonwealth v. Cephas, 361 Pa.
                                       Super. 160, 522 A.2d 63, 65 (1987)).


The totality of the circumstances is evaluated based on factors, including "a

consideration of the juvenile's age, experience, comprehension, and the presence or

absence of an interested adult! .... the duration and means of an interrogation[,] the

[juvenile's]physical and psychological state[,] the conditions attendant to the

detention[,] the attitude of the interrogator[,] and "any and all other factors that could

drain a person's ability to withstand suggestion and coercion." In re V.C. at 351 (citing

Commonwealth v. Knox, 50 A.3d 732.., 746-747 (Pa.Super.2012)).

1 Although a factor in evaluating the totality of the circumstances givingrise to the waiver of
Miranda rights, there is no longer a per se requirement that an interested adult be present
during the interview with law enforcement. See Knox at · 7 'fh';. 47.

                                                6
      In the instant case, the Juvenile, in his Case Law Summary attached to his

Letter Brief, concedes that the issue of coercion, intimidation and/ or deception on the

part of law enforcement is not in issue in this matter.   However, the Juvenile does

argue that his waiver of his Miranda rights was involuntary, unknowing, and/ or

unintelligent in that it was made without a full awareness of the rights being

abandoned and/ or the consequences of giving up those rights. After examining the

totality of the circumstances, the Court disagrees.

       Several of the factors evaluated by the Court are without dispute. The Juvenile

was 13 years old at the time of the interview with DetectiveBuckwalter and had no

prior contact with the police. During his interview, both on the audio/videotape and

as presented by Detective Buckwalter's testimony during the suppression hearing, the

Juvenile appeared to understand and comprehend the questions posed to him and

answered appropriately in response to the questions. Testimony was presented by the

Commonwealth and the Juvenile that DetectiveBuckwalter contacted the Juvenile's

stepmother, who in turn contacted the Juvenile's uncle and a family friend, to act as

interested adults. After the Juvenile was brought to police headquarters, Detective

Buckwalter confirmed with the Juvenile's stepmother that he was able to speak to the

Juvenile with the uncle and family friend present. The tone of the interview was

conversational and the Juvenile and DetectiveBuckwalter appeared to have a good

rapport, demonstrated by the Juvenile's request to speak with the detective outside

the presence of his uncle and family friend and the fact that he made revelations at

that point unknown to the police.

       In consideration of the factors above, the Juvenile suggests that neither Mr.

Tineo (Juvenile's uncle) nor Mr. Delacruz can be deemed to be "interested and

informed adults" given their limited understanding of English, lack of experience with


                                             7
the legal system, their belief that it was the "parents" duty to sign the Miranda form,

and because they did not know the specific crimes for which the Juvenile was been

questioned. Testimony presented at the suppression hearing established that prior to

the commencement of the interview, Detective Buckwalter, Mr. Tineo, and Mr.

Delacruz met outside of the interview room to discuss the nature of the events leading

up to the request for the Juvenile to be brought into headquarters. At that time,

DetectiveBuckwalter believed that he told them about the nature of the incidents and

that he showed them a photograph taken from the city video surveillance system

depicting the Juvenile. By slight contrast, Mr. Tineo and Mr. Delacruz did not recall

being told the specifics of the crimes about which DetectiveBuckwalter wished to

speak to the Juvenile, but only that the detective stated that the Juvenile was "doing

something bad" and that he "needed to stop." Mr. Tineo and Mr. Delacruz were

assured that the Juvenile would be going home with them that evening'.

       Upon entry to the interview room, DetectiveBuckwalter spoke with the

Juvenile, in the presence of Mr. Tineo and Mr. Delacruz, and stated that he wanted to

speak to the Juvenile about things that were going on and that it was his goal to get

the Juvenile's behavior to stop. Detective Buckwalter explained that givingthe

Juvenile a Miranda form was something that every child interviewedgets to read and

to consider. He further explained that it contained his rights. Mr. Tineo, in Spanish

and translated for Detective Buckwalter by Mr. Delacruz, told the Juvenile that he was

to tell the truth to the detective. At that point in the conversation, the Juvenile

requested that Mr. Tineo and Mr. Delacruz not be present in the interview. Detective

Buckwalter explained that it was possible, but that he wished for the Juvenile and his

family to discuss it. He again explained that the Juvenile, Mr. Tineo and Mr. Delacruz

needed to read and discuss the Miranda form and showed each where to sign the


                                             8
form. Despite their testimony that they did not read the form, the Court was able to

review the audio/videotape            interview with the Juvenile.                                   Although the entire private

exchange between the Juvenile, Mr. Tineo and Mr. Delacruz was not recorded, the

Court was able to view Mr. Tineo holding the Miranda form and beginning to read it

aloud, in Spanish. The videotape then shut off to allow Mr. Tineo and Mr. Delacruz to

speak to the Juvenile privately. A few minutes later, the videotape resumed and the

Court was able to observe Detective Buckwalter reenter the interview room and Mr.

Tineo sign the Miranda form, Detective Buckwalter again asked the Juvenile if he

wished to speak alone with him. He then informed Mr. Tineo that he spoke to the

Juvenile's stepmother and that she authorized Mr. Tineo to act as a "parent." After

Mr. Tineo agreed to allow the Juvenile to speak to Detective Buckwalter alone, the

detective explained that if the Juvenile wished to stop talking to the detective, he could

go out and speak with his uncle at any time.

         Although it is only a factor for the Court to consider in evaluating the totality of

the circumstances, the Court does believe that Mr. Tineo and Mr. Delacruz were

interested and informed adults. It is clear that, although he may not recall it, that Mr.

Tineo read the form containing the Miranda warnings and signed it voluntarily.

                                                               CONCLUSION

          Given the totality of the circumstances and the consideration of the relevant
                                                  ! i.i     t :.·
factors, the Court believes that th~ '·Juv~iiile's.waiver of his Miranda rights was
                                           . .,     :. ~·      .     : ·,    -       'I\.




knowing and intelligent, as well i.'Jl$' volumtarily, Theljefg,~et(WJN~iL:7:R.\'.,suppress the
                                           ;...) b(~t,; :··;',__: ;.,1 · '       :          ..   e



 statements given to Detective B\}~~4-\t!r~i
                                 ·~ ) -~ '.. ' . .... . . , .




                                                                                 9
