J-A33027-16
                               2017 PA Super 60
    IN THE INTEREST OF: N.B., A MINOR     :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                                          :
    APPEAL OF: COMMONWEALTH OF            :
    PENNSYLVANIA                          :
                                          :         No. 527 WDA 2016

                  Appeal from the Order Dated March 11, 2016
                In the Court of Common Pleas of McKean County
              Criminal Division at No(s): CP-42-JV-0000063-2015

BEFORE: LAZARUS, SOLANO, and STRASSBURGER, JJ.*

DISSENTING OPINION BY SOLANO, J.:             FILED MARCH 08, 2017

        The Majority’s opinion omits facts that I consider critical and that

compel affirmance. Appellee’s mother brought both Appellee (N.B.) and his

twin brother (D.B.) to the police station to be interviewed about their joint

alleged sexual misconduct.        Both juveniles made inculpatory statements

during their separate police interviews and both juveniles later moved to

suppress those statements.      Judge Hauser heard both motions, and, after

separate hearings, he granted N.B.’s motion, but denied the motion made

by D.B.      He did so, he explained, because N.B.’s testimony during the

suppression hearing convinced him that, unlike D.B., “[N.B.] did not

intelligently, voluntarily, and knowingly give his statements” to the police.

Tr. Ct. Rule 1925(a) Op., 7/1/16, at 3 (hereinafter, “Rule 1925(a) Op.”;

page numbering added here and in subsequent citations).

        Judge Hauser explained:

        The Court found great distinctions between [N.B.]’s case and his
        twin’s case on the issues of the statements being intelligent and

*
    Retired Senior Judge assigned to the Superior Court.
J-A33027-16


      knowing. The Court gave special consideration to [N.B.]’s own
      testimony. There were several rounds of questioning of [N.B.],
      including inquiry by the Court, that convinced the Court that
      [N.B.] truly did not understand the consequences of his
      inculpatory statements and that he was compelled to testify by
      his mother. For example, [N.B.] testified that although he
      watched television shows like “Cops” he did not understand or
      attach any significance to the Miranda warnings regularly given
      to the suspects arrested on camera. [N.B.] also testified that he
      was specifically participating in the interview because he
      believed he was under compulsion to do so by his mother, and
      that he did not understand himself to be in a position to refuse
      the officer’s questioning.

Rule 1925(a) Op. at 3-4.      Judge Hauser stated that he “afforded great

weight to the testimony of [N.B.].”    Id. at 4.   He then elaborated:    “The

Court can only rely on the facts that were developed as counsel sought to

develop them at the hearing, and at [N.B.]'s hearing there was examination

to great length and detail that assessed [N.B.]'s ability to understand his

situation. The Court strongly considered [N.B.]'s testimony.” Id.

      The Majority reverses Judge Hauser’s suppression order because, it

says, the fact that “Mother brought Appellee to the police station and

advised him to tell the truth . . . cannot be reasonably interpreted to rise to

the level of coercion such that suppression is warranted.” Maj. Slip Op. at 7.

That may be true, but it is not what Judge Hauser held. If Judge Hauser had

concluded that N.B.’s statement had to be suppressed merely because his

mother brought him to the police station, Judge Hauser would have also

suppressed D.B.’s statement, since the mother brought both of her sons to

the station together.


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J-A33027-16


      Judge Hauser suppressed N.B.’s statement because, after being

brought to the police station by his mother, N.B. believed that he was

required to participate in the police interview and, despite receiving warnings

pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), did not understand

that he had a right to decline. Summarizing Judge Hauser’s initial opinion,

dated March 11, 2016, the Majority says that Judge Hauser “determined that

Appellee’s statements should be suppressed because Appellee ‘participated

in the interview under compulsion of a parent[; therefore], the disclosures

made were not voluntary.’”     Id. at 6, quoting excerpts from Tr. Ct. Op.,

3/11/16, at 5 (page numbering added; hereinafter “Mar. 11 Op.”). But that

is not a fair summary of Judge Hauser’s reasoning.        Judge Hauser’s full

paragraph reads:

             However, [N.B.] testified that he was specifically
      participating in the interview because he believed he was under
      compulsion to do so by his mother, and that he did not
      understand himself to be in a position to refuse the officer's
      questioning. Because the Court finds that [N.B.] participated in
      the interview under compulsion of a parent, the disclosures
      made were not voluntary.

Mar. 11 Op. at 5.    Judge Hauser thus based his suppression order on his

finding that N.B. “believed” he had to speak to the police and understood

that he could not refuse — an understanding that, of course, is contrary to

N.B.’s rights under Miranda and its progeny.      That N.B.’s mistaken belief

was influenced by his mother’s parental oversight does not make his




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J-A33027-16


misunderstanding of his constitutional rights any less true. Nor does it make

his statements any more “intelligent,” “voluntary,” or “knowing.”

     The basis for Judge Hauser’s decision is clear when read in the context

of the remainder of his opinion.   Judge Hauser applied the totality-of-the-

circumstances regimen mandated by Commonwealth v. Williams, 475

A.2d 1283, 1288 (Pa. 1984), and explained:        “the Court did assess the

totality of the circumstances and painstakingly reviewed all of the details

surrounding the interview room and the conduct of Officer Caskey.”      Rule

1925(a) Op. at 4.      He rendered his decision after finding that N.B.

“experiences some developmental delays due to a premature birth,”

although “he appeared to be of basic intelligence,” Mar. 11 Op. at 1, 4; and

after reviewing N.B.’s testimony that “he had no appreciation of his rights,”

“was acting under his mother’s direction and instruction,” and, although he

was familiar with the words of the Miranda warnings, “he never attached

any significance to those words and did not believe them to hold any special

meaning.” Id. at 2.

     Most important, Judge Hauser carefully evaluated the credibility of the

witnesses and based his decision on their testimony. Although he found the

mother’s testimony “less credible in the Court's eyes because of her previous

and somewhat inconsistent testimony,” he considered “most strongly” N.B.'s

“own testimony,” reiterating:   “The Court found this factor to be one that

skewed the totality of the circumstances in favor of suppression.”      Rule


                                    -4-
J-A33027-16


1925(a) Op. at 4-5.        This Court is bound by Judge Hauser’s credibility

determinations. In re L.J., 79 A.3d 1073, 1080 n.6 & 1085 (Pa. 2013). We

also are bound by his factual determinations, where, as here, they are

supported by the record. Id.; In re T.B., 11 A.3d 500, 505 (Pa. Super.

2010), appeal denied, 24 A.3d 864 (Pa. 2011); In re B.T., 82 A.3d 431,

435 (Pa. Super. 2013) (reversing denial of motion to suppress juvenile’s

confession). We have no license to overturn Judge Hauser’s appraisal of the

facts.

         Judge   Hauser   correctly   based   his   decision   on   a   careful   and

conscientious factual assessment of N.B.’s lack of understanding of his

Miranda rights.     The Majority’s assertion that Judge Hauser instead made

an erroneous legal ruling that suppressed the statements merely because of

non-governmental parental duress is belied by the record, by Judge Hauser’s

refusal to suppress the statements by D.B., and by Judge Hauser’s own

explanation of what he actually decided. Because we are required to defer

to Judge Hauser’s findings, and because his conclusions of law based on

those findings are sound, I respectfully dissent.




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