J-S32008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOHN VALENZUELA                            :
                                               :
                       Appellant               :   No. 2656 EDA 2017

                      Appeal from the Order July 17, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0007911-2011


BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.

MEMORANDUM BY SHOGAN, J.:                          FILED SEPTEMBER 16, 2019

        Appellant, John Valenzuela, appeals from the order denying his motion

to preclude a polygraph examination. We affirm.

        On May 21, 2011, Appellant was arrested and charged with various

crimes related to his sexual contact with his girlfriend’s minor daughter. On

July 18, 2014, a jury convicted Appellant of the crimes of statutory sexual

assault and corruption of minors.1 On June 26, 2015, the trial court sentenced

Appellant to serve a term of incarceration of eleven and one-half to twenty-

three months, to be followed by ten years of probation.         Appellant filed a

timely post-sentence motion, which the trial court denied on October 29,

2015. On direct appeal, this Court affirmed Appellant’s judgment of sentence


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1   18 Pa.C.S. §§ 3122.1 and 6301, respectively.
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on June 27, 2017. Commonwealth v. Valenzuela, 3489 EDA 2015, 174

A.3d 104 (Pa. Super. filed June 27, 2017) (unpublished memorandum). Our

Supreme Court denied Appellant’s petition for allowance of appeal on February

21, 2018.    Commonwealth v. Valenzuela, 181 A.3d 1125 (Pa. 2018).

Subsequently, Appellant filed a federal habeas corpus petition in the Eastern

District of Pennsylvania, which was docketed at Civil Action No. 18-1246. On

June 26, 2019, a report and recommendation order were entered, which

recommended that all of Appellant’s claims be dismissed or denied without an

evidentiary hearing. Valenzuela v. Pennsylvania, 2019 U.S. Dist. LEXIS

108625 (Pa. E.D. filed June 26, 2019).

      Upon release from incarceration, Appellant began supervision with the

Sexual Offenders Unit of the Philadelphia County Department of Probation and

Parole (“the Department”). The Department sought to have Appellant submit

to a polygraph examination under its sex offender treatment policy. Although

Appellant participated in treatment, he denied having committed a sexual

offense.   Pertinent to this appeal, on October 19, 2016, Appellant filed a

motion to preclude the polygraph exam. The trial court held a hearing on July

17, 2017. At the conclusion of the hearing, the trial court denied Appellant’s

motion.    This timely appeal followed.   Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

      Appellant presents the following issue for our review:

      1) Does a defendant retain the right to refuse to answer [a]
      historical polygraph and/or questions about his sexual history,

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       based on Fifth Amendment[2] grounds after conviction and/or
       where his case is pending on collateral appeal?

Appellant’s Brief at 2.

       In his sole claim, Appellant argues that the trial court erred in denying

his motion to preclude a polygraph examination. Appellant’s Brief at 10-24.

Appellant asserts that the polygraph violates his Fifth Amendment right to

remain silent after trial. Id. at 12-21. In addition, Appellant avers that he

retains the right to remain silent while his case is pending on collateral appeal.

Id. at 22-24.

       Initially, we address Appellant’s claim that, because he has a Fifth

Amendment right against self-incrimination, the trial court erred in declining

to grant his motion to preclude the polygraph examination. We disagree.

       It is well settled that “the privilege against self-incrimination can be

asserted ‘in any proceeding, civil or criminal, administrative or judicial,

investigatory or adjudicatory.’”        Maness v. Meyers, 419 U.S. 449, 464,

(1975) (citation omitted). When the privilege is invoked in state proceedings,

it is governed by federal standards. Commonwealth v. Hawthorne, 236

A.2d 519, 520 (Pa. 1968). “In other words, the standards to be … used in

determining whether or not the silence of one questioned about the

commission of a crime is justified are the same in both state and federal


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2 The Fifth Amendment provides, in pertinent part, that no person “shall be
compelled in any criminal case to be a witness against himself.” U.S. Const.
amend. V.

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proceedings.” Commonwealth v. Carrera, 227 A.2d 627, 629 (Pa. 1967),

superseded by statute on other grounds, Commonwealth v. Swinehart, 664

A.2d 957 (Pa. 1995).

      Our review of a Fifth Amendment claim is governed by the following

principles:

             The Fifth Amendment declares in part that “No person …
      shall be compelled in any Criminal Case to be a witness against
      himself”. This guarantee against testimonial compulsion, like
      other provisions of the Bill of Rights, “was added to the original
      Constitution in the conviction that too high a price may be paid
      even for the unhampered enforcement of the criminal law and
      that, in its attainment, other social objects of a free society should
      not be sacrificed.” This provision of the Amendment must be
      accorded liberal construction in favor of the right it was intended
      to secure.

              The privilege afforded not only extends to answers that
      would in themselves support a conviction under a federal criminal
      statute but likewise embraces those which would furnish a link in
      the chain of evidence needed to prosecute the claimant for a
      federal crime. But this protection must be confined to instances
      where the witness has reasonable cause to apprehend danger
      from a direct answer. The witness is not exonerated from
      answering merely because he declares that in so doing he
      would incriminate himself—his say-so does not of itself
      establish the hazard of incrimination. It is for the court to
      say whether his silence is justified, and to require him to answer
      if “it clearly appears to the court that he is mistaken.” However,
      if the witness, upon interposing his claim, were required to prove
      the hazard in the sense in which a claim is usually required to be
      established in court, he would be compelled to surrender the very
      protection which the privilege is designed to guarantee. To
      sustain the privilege, it need only be evident from the
      implications of the question, in the setting in which it is
      asked, that a responsive answer to the question or an
      explanation of why it cannot be answered might be
      dangerous because injurious disclosure could result. The
      trial judge in appraising the claim “must be governed as much by


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        his personal perception of the peculiarities of the case as by the
        facts actually in evidence.”

Hoffman v. United States, 341 U.S. 479, 485-487 (1951) (internal citations

omitted and emphases added).

        The constitutionality of requiring a convicted sex offender to submit to

a polygraph test, in the aspect of a treatment program for sexual offenders,

was addressed by this Court in Commonwealth v. Shrawder, 940 A.2d 436

(Pa. Super. 2007). In Shrawder, the appellant entered a nolo contendere

plea to two counts of luring a child into a motor vehicle and two counts of

corruption of minors.      Id. at 437.    The appellant was sentenced to an

aggregate term of three years of probation and was ordered to cooperate with

any counseling programs, including sexual-offender counseling, which the

adult probation department might deem appropriate. Id. at 437-438. The

probation department determined that sexual-offender counseling was

appropriate. The appellant cooperated with the counseling for one year, but

then learned that continued compliance required that he submit to a polygraph

test.   The appellant argued that a therapeutic polygraph conducted during

sexual-abuse counseling, for which refusing to answer would be considered a

probation violation, violated his rights under the Fifth Amendment of the

United States Constitution and Article One, Section Nine, of the Pennsylvania

Constitution – and was thus an unreasonable condition of probation. Id. at

438-439. The appellant filed a motion for declaratory judgment, arguing that

compliance with the polygraph test would violate his constitutional rights. Id.

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at 438.   After a hearing, the trial court found the test to be a reasonable

condition of probation in the sexual-offender counseling of the appellant. Id.

The appellant appealed.

     In the absence of pertinent authority in this Commonwealth, we

consulted case law from other jurisdictions. We ultimately upheld the use of

polygraph examinations for therapeutic purposes stating:

     [T]he therapeutic polygraph is an essential tool for a therapist
     whose job it is to reveal an offender’s deception and encourage
     him or her to confront his or her urges and deviant behavior. The
     test results further the primary goal of counseling as part of a
     sexual offender’s sentence, which is to rehabilitate the offender
     and prevent recidivism, with reasonably small incremental
     deprivations of the offender’s liberty. We also note that, as [the
     counselor’s] testimony indicates, the candor of Appellant or any
     other probationer is always expected during a probation inquiry,
     whether or not his responses are being recorded through a
     polygraph test. We therefore conclude that polygraph testing can,
     and in this case does, further sentencing goals without excessive
     deprivations of liberty and hold that a therapeutic polygraph is a
     proper element in a sex offender treatment program for a
     convicted sexual offender and does not violate a probationer’s
     rights under the Fifth Amendment to the United States
     Constitution or under Article One, Section Nine of the
     Pennsylvania Constitution, so long as the inquiries made
     pursuant to it relate to the underlying offense for which an
     offender has been sentenced and do not compel him or her
     to provide information that could be used against him or
     her in a subsequent criminal trial.

Shrawder, 940 A.2d at 443 (emphasis added). We held that the appellant in

Shrawder remained free to assert his Fifth Amendment privilege if any

incriminating questions or coercive tactics were actually employed during the

polygraph examination. Id. at n.6.




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       In addressing this argument, the trial court offered the following

discussion:

              For his argument that he has a Fifth Amendment right not
       to take an instant offense polygraph examination, [Appellant]
       relies on Commonwealth v. Fink, 990 A.2d 751 (Pa. Super.
       2010).[3] Fink, however, is inapposite to his claim. Although the
       Superior Court in Fink stated a defendant could invoke his right
       against self-incrimination to questions in the sexual offender
       treatment program, the court made clear a defendant’s Fifth
       Amendment right is not violated where the questions asked “relate
       to the underlying offense for which an offender has been
       sentenced.”       Id. at 760 (emphasis added); see also
       Commonwealth v. Shrawder, 940 A.2d 436 (Pa. 2007) (finding
       a therapeutic polygraph examination is a proper tool in a sex
       offender treatment program, furthers sentencing goals without
       excessive deprivations of liberty, and does not violate a
       defendant’s Fifth Amendment right to silence where questions
       pertain to the underlying offense).

             Moreover, it is well-settled that sexual offender treatment
       programs can “limit the use of the therapeutic polygraph
       examination to confront an offender with his own disingenuous
       statements regarding the activity that led to his conviction.”
       Commonwealth v. A.R., 990 A.2d 1, 7 (Pa. Super. 2010). The
       results from the therapeutic polygraph examination “do not
       undermine an offender’s liberty interests but, instead, encourage
       him to face the deviant behavior that has already been established
       in fact at the guilt-phase of trial and encourage him to accept
       treatment for it.” Id. Further, as the Commonwealth points out,
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3 In Fink, this Court reversed the sentence imposed following probation
revocation, which was based upon the appellant’s discharge from a treatment
program due to refusing to take a polygraph examination that required him to
answer detailed questions concerning every sexual encounter with a minor.
We concluded that the Commonwealth failed to afford the appellant his
privilege against self-incrimination, and found his responses to the polygraph
questionnaire to be privileged. Fink, 990 A.2d at 761. This Court also
concluded that the trial court erred in treating the appellant’s refusal to answer
the questionnaire as grounds for revocation. Id. Hence, the procedural
posture in Fink is different from the instant case and renders Fink
distinguishable.

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      results from a polygraph examination may only be introduced at
      a revocation proceeding and are not admissible at a criminal trial.
      See Commonwealth v. A.R., supra. For these reasons, no relief
      is due.

Trial Court Opinion, 7/18/18, at 4-5.

      Relying on Shrawder, we conclude that requiring Appellant to undergo

a polygraph examination constitutes a reasonable condition of his probation

and furthers the rehabilitative goals therein. Accordingly, we discern no error

on the part of the trial court in denying Appellant’s motion to preclude a

polygraph examination. Thus, Appellant’s contrary claim lacks merit.

      In addition, Appellant argues that he is entitled to invoke his Fifth

Amendment right to remain silent while his matter is on collateral appeal.

Appellant’s Brief at 22-24. However, Appellant’s claim fails pursuant to this

Court’s decision in Commonwealth v. Melvin, 103 A.3d 1 (Pa. Super. 2014)

(“Melvin II”). Specifically, this Court explained:

             In [Commonwealth v.] Melvin, [79 A.3d 1195 (Pa. Super.
      2013) (“Melvin I”),] this Court reviewed applicable decisions of
      our Supreme Court and determined that the requirement that [the
      appellant] write apology letters violated her right against self-
      incrimination during the pendency of her direct appeal. Id. at
      1203. We are aware of no federal or Pennsylvania state law, and
      [the appellant] has not cited to any, that supports the notion that
      the right against self-incrimination extends beyond the pendency
      of a direct appeal. As a result, we must conclude that [the
      appellant] is not entitled to relief from the apology letters
      requirement on constitutional grounds after her direct appeal
      has been decided.

Melvin II, 103 A.3d at 51 (emphases added).




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      The above-cited language explains that the right against self-

incrimination does not extend beyond the direct appeal. Because Appellant’s

case is no longer pending on direct appeal, he may not employ this reasoning

to avoid participation in the polygraph examination at issue. Therefore, this

issue fails.

      In summary, it is our conclusion that the trial court properly denied

Appellant’s motion to preclude the polygraph examination.      Moreover, we

recognize that Appellant remains free to assert his Fifth Amendment privilege

if any incriminating questions or coercive tactics are employed during a

polygraph examination. See Shrawder, 940 A.2d 436, 443 n.6.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/19




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