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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN THE INTEREST OF:                     :    IN THE SUPERIOR COURT OF
J.M.C., A MINOR                         :          PENNSYLVANIA
                                        :
APPEAL OF: COMMONWEALTH OF              :        No. 1265 MDA 2015
PENNSYLVANIA                            :


                Appeal from the Order Entered June 30, 2015,
            in the Court of Common Pleas of Cumberland County
              Juvenile Division at No. CP-21-JV-0000086-2015


BEFORE: FORD ELLIOTT, P.J.E., JENKINS AND PLATT,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED SEPTEMBER 21, 2016

      The Commonwealth appeals from the June 30, 2015 order granting

J.M.C.’s omnibus pre-trial motion to suppress inculpatory statements that

he made during the course of a court-ordered sex offender treatment

program, as well as any evidence stemming from these admissions. After

careful review, we affirm.

      The relevant facts and procedural history of this case, as gleaned from

the certified record, are as follows.   On September 14, 2010, J.M.C. was

adjudicated delinquent of involuntary deviate sexual intercourse (“IDSI”)

and attempted rape of a child.    (Notes of testimony, 6/1/15 at 3-5.)    On

May 12, 2014, the juvenile court modified the disposition for J.M.C. and

ordered that he successfully complete the sex offender treatment program




* Retired Senior Judge assigned to the Superior Court.
J. A09012/16


at Adelphoi Village Secure Treatment Center (“Adelphoi Village”). (Id. at 4.)

As part of his treatment, J.M.C. was required to disclose his sexual history

and submit to a polygraph administered by the treatment providers at

Adelphoi Village. (Id. at 7.) On June 23, 2014, J.M.C. disclosed during a

pre-polygraph examination that he had sexually assaulted a number of

juveniles, including an autistic boy, S.J. (“the victim”). (Id. at 7, 12, 55.)

Based upon this disclosure, it was later determined that these sexual

assaults occurred between February and August 2009 at a Cumberland

County foster home where both J.M.C. and the victim resided.       (Id. at 9,

18-19; see also “Written Allegation,” 3/17/15 at 3.) At the time of these

sexual assaults, J.M.C. was approximately 14 years old and the victim was

between the ages of 8 and 9 years old. (“Written Allegation,” 3/17/15 at 3.)

J.M.C. was not provided constitutional rights or Miranda1 warnings prior to

the polygraph examination and associated interview. (Juvenile court opinion

and order, 6/30/15 at 2; findings of fact nos. 8, 9.)

        As a result of J.M.C.’s disclosure, this incident was reported to the

Pennsylvania Department of Public Welfare (“DPW”) and the State Police

commenced an investigation. (Notes of testimony, 6/1/15 at 9-11, 17-18.)

On November 20, 2014, J.M.C. was interviewed at Adelphoi Village by

Trooper David Rush (“Trooper Rush”) and Mark Schrode (“Schrode”), a

program representative with the Office of Children and Youth and Family


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


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Services (“CYS”). (Id.) During this interview, the only individuals present

in the room were Schrode, Rush, and J.M.C. (Id. at 13.) Trooper Rush was

unable to affirmatively recall whether J.M.C. was given Miranda warnings

prior to this interview, and no written waiver was ever obtained from J.M.C.

(See notes of testimony, 6/1/15 at 19-20, 29.)            The juvenile court,

however, indicated in its June 30, 2015 opinion that Trooper Rush did in fact

issue constitutional rights warnings to J.M.C. on November 20, 2014, prior to

speaking with him.      (See juvenile court opinion and order, 6/30/15 at 7

(stating, “[t]he second interrogation of [J.M.C.] does not overcome the

evidentiary taint by Trooper [Rush]’s issuance of a constitutional rights

warning.”).)

     Thereafter,   on    December   1,   2014,   State   Trooper   Nicole   Mark

(“Trooper Mark”) and Schrode went to the victim’s home in Cumberland

County and spoke with the victim and his foster parents.             (Notes of

testimony, 6/1/15 at 52-53, 61-63.) During the course of this interview, the

victim confirmed that he and J.M.C. had sexual contact when they resided in

the same foster home. (Id. at 9, 61; see also “Written Allegation,” 3/17/15

at 1-3.)   On December 16, 2014, Rebecca Voss (“Voss”), a staff member

with the Over the Rainbow Children’s Advocacy Center, interviewed the

victim at the request of Schrode.    (Notes of testimony, 6/1/15 at 37-39.)

Voss testified that she conducted a “blind” interview of the victim, noting

that she did not utilize any information about the incident, asked



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open-ended questions, and did not specifically bring up J.M.C.’s name. (Id.

at 42-44.) The victim, however, was aware of why he was being interviewed

based upon his contact with Trooper Mark and Schrode two weeks earlier.

(Juvenile court opinion and order, 6/30/15 at 3; finding of fact no. 13.) The

victim was more forthcoming about the incidents in question during this

interview. (Notes of testimony, 6/1/15 at 55.)

        On March 17, 2015, J.M.C. was charged with IDSI, unlawful contact

with a minor, and indecent assault of a person less than 13 years of age.2

On April 21, 2015, J.M.C. filed an omnibus pre-trial motion to suppress the

statements he made during treatment, as well as any evidence derived from

his admissions, including the statements of the victim.       (See “Omnibus

Pre-Trial Motion to Suppress Evidence,” 4/21/15 at ¶¶ 19-20.) On June 1,

2015, the juvenile court conducted a hearing on J.M.C.’s suppression

motion.      Following the hearing, the juvenile court granted J.M.C.’s

suppression motion on June 30, 2015. In reaching this decision, the juvenile

court reasoned as follows:

                    [J.M.C.’s] initial statement [on June 23, 2014]
              was made without the protection of a constitutional
              rights warning in derogation from criminal law
              practice. The second interrogation of [J.M.C. on
              November 20, 2014] does not overcome the
              evidentiary taint by Trooper [Rush]’s issuance of a
              constitutional rights warning. In essence, [J.M.C.]
              was directed if he wanted to complete his court
              supervision he had to come clean about this sexual
              past. No amount of law enforcement warning would

2
    18 Pa.C.S.A. §§ 3123(b), 6318, and 3126(a)(7), respectively.


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            nullify the Judge’s Order to [J.M.C.] to be compliant
            with the people he dealt with while at Aldephoi
            [Village]. The Aldephoi [Village] statements were
            made in a confrontational style setting, which is to
            say a custodial interrogation within the court
            mandated facilities for [J.M.C.] This is a violation of
            both the [Juvenile Act] and the Constitution;
            therefore, the statements and all derivative evidence
            obtained as a result of this interrogation must be
            suppressed.

Juvenile court opinion and order, 6/30/15 at 7-8.

      On July 23, 2015, the Commonwealth filed a timely notice of appeal,

certifying, pursuant to Pa.R.A.P. 311(d), that the June 30, 2015 order will

terminate or substantially handicap the prosecution. On July 27, 2015, the

juvenile court directed the Commonwealth to file a concise statement of

errors complained of on appeal, in accordance with Pa.R.A.P. 1925.          The

Commonwealth filed its timely Rule 1925(b) statement on August 6, 2015.

The record reflects that the juvenile court did not file a Rule 1925(a) opinion.

      On appeal, the Commonwealth raises the following issues for our

review:

            I.    Whether     the    juvenile court  erred  in
                  suppressing      [J.M.C.’s]  statements   to
                  [Trooper Rush] and CYS worker [Schrode]
                  regarding [J.M.C.’s] sexual abuse of another
                  juvenile victim?

            II.   Whether      the   juvenile   court   erred    in
                  suppressing the juvenile victim’s statements
                  and testimony regarding J.M.C.’s sexual abuse
                  because the statements and testimony relate
                  to the victim’s personal experience and
                  recollection    which   dissipates   any    taint
                  associated with [J.M.C.’s] disclosures?


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Commonwealth’s brief at 2 (emphasis in original).      For the ease of our

discussion, we have elected to address the Commonwealth’s claims

simultaneously.

      “When reviewing the propriety of a suppression order, an appellate

court is required to determine whether the record supports the suppression

court’s factual findings and whether the inferences and legal conclusions

drawn by the suppression court from those findings are appropriate.”

In re O.J., 958 A.2d 561, 564 (Pa.Super. 2008), appeal denied, 989 A.2d

918 (Pa. 2009) (citation omitted).     “Since Juvenile prevailed below, we

consider only the evidence of Juvenile and so much of the Commonwealth’s

evidence that is un-contradicted when read in the context of the entire

record.” In re T.P., 78 A.3d 1166, 1169 (Pa.Super. 2013), appeal denied,

93 A.3d 463 (Pa. 2014) (citation omitted). “Where the suppression court’s

factual findings are supported by the record, [the appellate court is] bound

by [those] findings and may reverse only if the court’s legal conclusions are

erroneous.”     Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super.

2015), appeal denied, 135 A.3d 584 (Pa. 2016) (citation omitted; brackets

in original).     However, “where the questions presented concern legal

questions, we are not bound by the suppression court’s determinations and

our standard of review is de novo.” In re T.P., 78 A.3d at 1169 (citation

omitted).




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      “The Juvenile Act, 42 Pa.C.S.A. § 6301[,] et seq., is designed to

effectuate the protection of the public by providing children who commit

‘delinquent acts’ with supervision, rehabilitation, and care while promoting

responsibility and the ability to become a productive member of the

community.” Commonwealth v. Brown, 26 A.3d 485, 491-492 (Pa.Super.

2011), citing 42 Pa.C.S.A. § 6301(b)(2). Section 6338 of the Juvenile Act

(“the Act”) codifies by statute the rights to confront witnesses, present

evidence, remain silent, and to be free from self-incrimination, as set forth

in the Fifth and Sixth Amendments of the United States Constitution and

Article I, § 9 of the Pennsylvania Constitution. Specifically, Section 6338(c)

governs statements and information obtained from juveniles during a

screening or assessment. This section provides, in relevant part, as follows:

            No statements, admissions or confessions
            made by or incriminating information obtained
            from a child in the course of a screening or
            assessment that is undertaken in conjunction with
            any proceedings under this chapter, including, but
            not limited to, that which is court ordered, shall
            be admitted into evidence against the child on
            the issue of whether the child committed a
            delinquent act under this chapter or on the issue of
            guilt in any criminal proceeding.

Id. at § 6338(c)(1) (emphasis added).

      This court has recognized that allowing these types of statements to

be admitted into evidence would frustrate the Act’s underlying goals of

treatment and rehabilitation. See In re T.P., 78 A.3d at 1173.




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                  The language of the Juvenile Act provisions in
            question reveals that the Juvenile Act is intended to
            foster truthfulness and full disclosure by a juvenile in
            order to further treatment.             By prohibiting
            incriminating statements made during assessments
            from being used in delinquency and adult
            prosecutions, this goal is served—a juvenile can
            freely disclose any transgressions without fear of his
            statements being used in connection with additional
            juvenile     delinquency      proceedings.          The
            Commonwealth’s position [that these statements
            should be admissible] would defeat a critical
            component of juvenile rehabilitation, foster suspicion
            and the potential withholding of information by
            juveniles, violate a duly-enacted statutory provision,
            and give rise to possible constitutional concerns.

Id. at 1175-1176.

       Instantly, the Commonwealth concedes that the statements J.M.C.

made during his court-ordered pre-polygraph interview and polygraph

examination were properly suppressed, pursuant to Section 6338(c)(1).

(Commonwealth’s brief at 7-10; see also notes of testimony, 6/30/15 at

68.)   The Commonwealth, however, contends that J.M.C.’s post-polygraph

statements [on November 20, 2014], as well as those of the victim, were

admissible. (Commonwealth’s brief at 9-16.) In support of this contention,

the Commonwealth maintains that J.M.C.’s subsequent disclosures to

Trooper Rush and Schrode during the November 20, 2014 interview were

not illegally obtained in violation of Miranda, were not involuntary or

coerced, and were not inadmissible as “fruit of the poisonous tree.”

(Commonwealth’s brief at 9-16.) The Commonwealth further contends that

the juvenile court erred in suppressing the statements the victim made


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during the December 1 and December 16, 2014 interviews because “[they]

relate to the victim’s personal experience and recollection which dissipates

any taint associated with [J.M.C.’s] disclosures.”     (Id. at 17.)     For the

following reasons, we disagree.

      In In re C.O., a panel of this court recently addressed whether a

juvenile court erred in suppressing incriminatory statements that a juvenile

made to a youth counselor and CYS caseworker during the course of a

court-ordered treatment program. In re C.O., 84 A.3d 726, 731 (Pa.Super.

2014), appeal denied, 97 A.3d 742 (Pa. 2014).              In ruling that the

questioning of the juvenile while in custody at a residential treatment facility

constituted an “interrogation” within the meaning of Miranda, the In re

C.O. court reasoned as follows:

                   To safeguard an uncounseled individual’s Fifth
            Amendment privilege against self-incrimination,
            suspects subject to custodial interrogation by law
            enforcement officers must be warned that they have
            the right to remain silent, that anything they say
            may be used against them in court, and that they
            are entitled to the presence of an attorney.
            Juveniles, as well as adults, are entitled to be
            apprised of their constitutional rights pursuant to
            Miranda. If a person is not advised of his Miranda
            rights prior to custodial interrogation by law
            enforcement officers, evidence resulting from such
            interrogation cannot be used against him. A person
            is deemed to be in custody for Miranda purposes
            when [he] is physically denied of his freedom of
            action in any significant way or is placed in a
            situation in which he reasonably believes that his
            freedom of action or movement is restricted by the
            interrogation.



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                 In order to trigger the safeguards of Miranda,
           there must be both custody and interrogation.
           Interrogation is defined as police conduct calculated
           to, expected to, or likely to evoke [an] admission.
           Moreover,     [u]nder      certain   circumstances,
           individuals who are not law enforcement
           personnel nevertheless possess the status of
           law enforcement for purposes of custodial
           interrogation.

In re C.O., 84 A.3d at 731–732 (citations and internal quotation marks

omitted; brackets in original; emphasis added). The In re C.O. court held

that the juvenile’s statements were properly suppressed, noting that the

treatment counselor and CYS caseworker, while not police officers, were

required to provide Miranda warnings to the juvenile because they were

investigating him and their questions elicited incriminating responses that

formed the basis for the prosecution. In re C.O., 84 A.3d at 736.

     Similarly, in the instant matter, the June 23, 2014 pre-polygraph

interview and examination wherein J.M.C. disclosed to the Adelphoi Village

treatment providers that he sexually assaulted the victim was the functional

equivalent of an interrogation, sufficient to trigger the protections of

Section 6338(c)(1). As in In re C.O., a component of J.M.C.’s court-ordered

sex offender treatment program required that he fully cooperate with the

treatment providers and disclose his past sexual history. During the course

of this examination, the treatment providers elicited inculpatory responses

from J.M.C., without the benefit of Miranda warnings.     These statements

were subsequently reported to the DPW and led directly to a state police



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investigation.     Consequently, it logically follows that any statements or

evidence derived from this illegal interrogation, including those by J.M.C. in

a subsequent interview with Trooper Rush and Schrode, as well as any of the

allegations of the victim obtained as a direct result of J.M.C.’s court-

mandated disclosure, should be suppressed as “fruit of the poisonous tree.”

        “The ‘fruit of the poisonous tree’ doctrine excludes evidence obtained

from,    or     acquired   as   a   consequence     of,   lawless   official   acts.”

Commonwealth v. Johnson, 68 A.3d 930, 946 (Pa.Super. 2013) (citations

omitted).      “A fruit of the poisonous tree argument requires an antecedent

illegality.”    Id. (citation omitted).    Courts in this Commonwealth have

repeatedly recognized that,

               [w]e need not hold that all evidence is “fruit of the
               poisonous tree” simply because it would not have
               come to light but for the illegal actions of the police.
               Rather, the more apt question in such a case is
               whether, granting establishment of the primary
               illegality, the evidence to which instant
               objection is made has been come at by
               exploitation of that illegality or instead by
               means sufficiently distinguishable to be purged
               of the primary taint.

Commonwealth v. Loughnane, 128 A.3d 806, 815 (Pa.Super. 2015)

(emphasis added), citing Commonwealth v. Cunningham, 370 A.2d 1172,

1176-1177 (Pa. 1977), quoting Wong Sun v. United States, 371 U.S. 471,

487-488 (1963).

        Here, an antecedent illegality occurred, as the Adelphoi Village

treatment providers “possess[ed] the status of law enforcement for purposes


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of custodial interrogation” at the time J.M.C. made the incriminating

statements.      See In re C.O., 84 A.3d at 732.     Moreover, the statements

given by J.M.C. on November 20, 2014, as well as any evidence derived

from this interview, were not purged of the primary taint of this initial illegal

interrogation.    As the juvenile court aptly recognized in its opinion, “[t]he

second interrogation of [J.M.C. on November 20, 2014] d[id] not overcome

the evidentiary taint by Trooper [Rush]’s issuance of a constitutional rights

warning.” (See juvenile court opinion and order, 6/30/15 at 7.)

      The state police were able to secure the victim’s statements about the

abuse as a direct result of J.M.C.’s initial disclosure that he sexually

assaulted a number of juveniles in 2009, and not through any independent

investigation or source.       The application of the “independent source

doctrine” is only proper “where the independent source is to be truly

independent from both the tainted evidence and the police or investigative

team which engaged in the misconduct by which the tainted evidence was

discovered.”      Commonwealth v. Henderson, 47 A.3d 797, 799 (Pa.

2012), cert. denied, 133 S.Ct. 435 (2012) (citation and internal quotation

marks omitted). Herein, the state police possessed no information as to any

victims or witnesses in this case, or that J.M.C. had even committed the

crimes in question, prior to the disclosures he made as part of his

court-ordered      sex   offender   treatment   program.        Permitting   the

Commonwealth to utilize J.M.C.’s statements under these circumstances, as



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well as any evidence directly derived from these statements, would frustrate

the juvenile court’s ability to order sexual offender treatment that requires

full disclosure and render the protections afforded by Section 6338(c)(1) of

the Act futile. See In re T.P., 78 A.3d at 1175-1176.

     Accordingly, we discern no error on the part of the juvenile court in

suppressing the inculpatory statements J.M.C. made during the course of a

court-ordered sex offender treatment program, as well as any evidence or

statements stemming from these admissions, including those of the victim.

Therefore, we affirm the juvenile court’s June 30, 2015 suppression order.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/21/2016




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