J-A22007-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

ROBERT LEE DUVALL

                            Appellant                   No. 1900 MDA 2013


              Appeal from the Judgment of Sentence July 15, 2013
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0001394-2012


BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                               FILED MARCH 09, 2015

        Appellant, Robert Lee Duvall, appeals from the judgment of sentence

entered July 15, 2013, by the Honorable Michael E. Bortner, Court of

Common Pleas of York County.            Duvall alleges on appeal that the use of,

inter alia, deceptive police tactics rendered his confession made during a

non-custodial interrogation involuntary. After careful review, we affirm.

        On September 7, 2011, Pennsylvania State Trooper Neal Navitsky

received a report of sexual assault regarding P.B., who has Downs

Syndrome. P.B. reported to her job coach at the Penn-Mar Organization that

her stepfather, Duvall, had sexually assaulted her on numerous occasions.

Trooper Navitsky contacted Duvall and requested that he come in for an

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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interview.    Duvall voluntarily went to the police barracks for an interview.

Trooper Navitsky and Trooper Jeffrey Gotwals interviewed Duvall in a

kitchenette at the barracks for 93 minutes, from 5:27 p.m. to 7:00 p.m.1

       At the beginning of the interview, Trooper Navitsky advised Duvall that

he was not in custody, that he was free to leave and that he was under no

obligation to answer any questions.              Duvall acknowledged these rights.

Trooper Navitsky then began to question Duvall regarding the allegations of

sexual abuse.         Trooper Navitsky informed Duvall, untruthfully, that

preliminary results of a rape kit conducted on P.B. indicated recent sexual

activity.    Trooper Navitsky also insinuated that although he had not yet

received the DNA test results, the results would likely indicate that Duvall

had perpetrated the rape. Duvall repeatedly denied that he had raped P.B.

Trooper Navitsky also indicated, again untruthfully, that the rape kit had

proven the victim had been penetrated by a male penis, and he insinuated

that Duvall’s DNA had been detected. Duvall again insisted that he had not

raped P.B.       After vacillating under questioning, Duvall confessed that he

had raped P.B.

       After again informing Duvall that he was not in custody and that any

statement he wished to make was voluntary, Trooper Navitsky handed


____________________________________________


1
  The transcript reveals that although Trooper Gotwals was present during
the interview and asked Duvall some preliminary questions, Trooper
Navitsky, in large part, singly conducted the interview.



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Duvall a Noncustodial Statement Form. Duvall acknowledged on the written

form that having sex with P.B. was a mistake and that it would never

happen again. Trooper Navitsky then concluded the interview.

          Duvall was later charged with Rape of a Mentally Disabled Person,2

Involuntary Deviate Sexual Intercourse (“IDSI”) of Person with Mental

Disability,3 Aggravated Indecent Assault,4 Aggravated Indecent Assault of

Person with Mental Disability,5 Sexual Assault,6 Indecent Assault,7 and

Indecent Assault of Person with Mental Disability.8            Duvall filed a pretrial

motion to suppress his confession, on the grounds that it was involuntary.

Following a hearing, the trial court denied Duvall’s motion, although it

permitted Duvall to raise the issue of voluntariness before the jury at trial.

          Following a jury trial, Duvall was convicted of Rape of a Mentally

Disabled Person, IDSI of Person with Mental Disability, and Indecent Assault

of a Person with Mental Disability.            The trial court sentenced Duvall to an

aggregate term of five to ten years’ incarceration. Duvall filed a timely post-

sentence motion, which the trial court denied. This timely appeal followed.

          Duvall frames his issue on appeal as follows.

____________________________________________


2
    18   Pa.C.S.A.   §   3121(a)(5).
3
    18   Pa.C.S.A.   §   3123(a)(5).
4
    18   Pa.C.S.A.   §   3125(a)(1).
5
    18   Pa.C.S.A.   §   3125(a)(6).
6
    18   Pa.C.S.A.   §   3124.1.
7
    18   Pa.C.S.A.   §   3126(a)(1).
8
    18   Pa.C.S.A.   §   3126(a)(6).



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      Did the lower court err in denying Duvall’s motion to suppress as
      involuntary his confession during a non-custodial interrogation
      where (a) the trooper admitted that he repeatedly lied to Duvall
      about DNA and other evidence and suggested he would not go to
      jail if he admitted to having consensual sex with P.B.; (b) the
      trooper admitted that he lied for the purposes of “breaking down
      barriers”; (c) the trooper admitted that the confession did not
      include any corroboration beyond the act of sex; (d) Duvall had
      repeatedly denied having sex with P.B.; (e) the trooper indicated
      that he did not and a jury would not believe him; and (f) he
      gave in and confessed due to the unrelenting deception and
      manipulation?

Appellant’s Brief at 12.

      We review the denial of a motion to suppress evidence as follows.

      Our standard of review in addressing a challenge to a trial
      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.

      Further, [i]t 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. Houck, 102 A.3d 443, 455 (Pa. Super. 2014) (internal

citations and quotations omitted).

      We note at the outset that Duvall concedes that he was not in custody

when the interview took place. See Appellant’s Brief at 15. However, “we

must still examine the totality of the circumstances surrounding the



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interrogation to determine if his confession was voluntary because a

noncustodial interrogation might possibly in some situations, by virtue of

some    special   circumstances,   result     in     an   involuntary   confession.”

Commonwealth v. Nester, 709 A.2d 879, 882 (Pa. 1998) (internal quotes

and citation omitted).

       “When a defendant alleges that his … confession was involuntary, the

question is not whether the defendant would have confessed without

interrogation, but whether the interrogation was so manipulative or coercive

that it deprived the defendant of his ability to make a free and unconstrained

decision to confess.” Commonwealth v. Mitchell, --- A.3d ---, 2014 WL

7150724, at *7 (Pa., filed Dec. 16 2014) (citation omitted). When assessing

the voluntariness pursuant to the totality of the circumstances, we examine

the following factors:

       the duration and means of the interrogation; the physical and
       psychological state of the accused; 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.

Nester, 709 A.2d at 882 (citation omitted). The Commonwealth must prove

by a preponderance       of the    evidence        that the   defendant   confessed

voluntarily. See id.

       The totality of the circumstances here reveals that Duvall’s confession

was voluntary.     It is uncontested that Duvall participated in the police

interview on his own free will.    See Commonwealth v. Edmiston, 634

A.2d 1078, 1087-88 (Pa. 1993) (overruled on other grounds) (defendant’s

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decision to voluntarily participate in interview at police station evidenced

lack of coercion). Trooper Navitsky informed Duvall multiple times that he

was not in custody and was free to leave at any time. See Commonwealth

v. Johnson, 42 A.3d 1017, 1029 (Pa. 2012) (fact that officer repeatedly

informed defendant of his rights and defendant’s expressed understanding

indicated lack of coercion). The interview commenced at 5:27 p.m., lasted

just 93 minutes, and Duvall never indicated a desire to terminate the

interview.    See Nester, supra, 709 A.2d at 883 (interview lasting

approximately one hour and fifteen minutes was not unduly long).      Duvall

acknowledged that Trooper Navitsky did not threaten him or otherwise make

any impermissible inducements in exchange for Duvall’s confession, and

Duvall in fact recognized that the Trooper Navitsky was respectful and

treated him fairly. See Commonwealth v. Johnson, 305 A.2d 5, 7 (Pa.

1973) (lack of improper inducements or promises by law enforcement factor

in favor of admissibility).   There is no evidence to suggest that Trooper

Navitsky denied Duvall food or water or that he was otherwise mistreated in

any way.

      The heart of Duvall’s argument is that Trooper Navitsky falsely

insinuated that preliminary results of a rape kit conducted on P.B. indicated

sexual contact had occurred and that the DNA test results would inevitably

reveal that Duvall had raped the victim.       However, we note that the

Pennsylvania Supreme Court has found that the use of artifice or even

intentional misrepresentations to obtain a confession is insufficient to make

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an otherwise voluntary confession inadmissible “where the deception does

not produce an untrustworthy confession or offend basic notions of fairness.”

See Commonwealth v. Williams, 640 A.2d 1251, 1259 (Pa. 1994) (claim

that police falsely stated that they had located a gun sold by appellant which

was of the same caliber used in the crime, was not sufficient to render a

confession involuntary absent other coercive circumstances); see also

Commonwealth v. Jones, 322 A.2d 119 (Pa. 1974) (finding confession

was voluntary even though, after the defendant gave an initial exculpatory

statement, the detective falsely claimed that a co-conspirator had implicated

him).

        Here, although Trooper Navitsky never affirmatively indicated that

DNA test results positively identified Duvall as the perpetrator of the rape,

this artifice was certainly insinuated and he did not disabuse Duvall of this

notion.    Nonetheless, as the totality of the circumstances detailed above

otherwise evidence an almost total lack of coercive circumstances, we do not

find this misrepresentation such that it was likely to cause an untrustworthy

confession.

        As further evidence of coercion, Duvall also points to Trooper

Navitsky’s insistence during the interview that he had sex with the victim,

despite Duvall’s initial denials. Duval seems not to grasp that the point of

the interrogation process is to elicit a confession. This volleying back and

forth is a standard part of that process and does not, in itself, give this Court

cause for concern. “Not all psychological persuasion is prohibited.” Nester,

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supra, at 884 (citation omitted).   It is only when interrogation becomes so

“manipulative or coercive that it deprived the defendant of his ability to

make a free and unconstrained decision to confess” that voluntariness

concerns are implicated. See Mitchell, supra. Such is not the case here.

     In summary, the circumstances of the confession, viewed in their

totality, demonstrate that Duvall was not subject to overbearing physical or

mental coercion such that would render his confession involuntary. We are

therefore satisfied that the Commonwealth met its burden of proving by a

preponderance of the evidence that Duvall’s confession was voluntary.

Accordingly, the trial court properly denied Duvall’s suppression motion, and

we affirm Duvall’s judgment of sentence.

     Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2015




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