J-S82039-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN RE: J.C., JUVENILE                    :       IN THE SUPERIOR COURT OF
                                         :             PENNSYLVANIA
                                         :
                                         :
APPEAL OF: J.C., JUVENILE                :       No. 2213 EDA 2018

          Appeal from the Dispositional Order Entered May 31, 2018
               in the Court of Common Pleas of Lehigh County
             Juvenile Division at No(s): CP-39-JV-0001142-2017

BEFORE:     LAZARUS, J., OLSON, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:          FILED MARCH 12, 2019

     J.C. (Appellant) appeals from the dispositional order entered on May

31, 2018, following his adjudication of delinquency for burglary, simple

assault, and possession of an instrument of crime.      Specifically, Appellant

challenges the denial of his pre-trial motion to suppress his statement and

DNA sample. Upon review, we affirm.

     On April 7, 2017, shortly after midnight, South Whitehall Township

detectives were called to a home for a reported burglary. Upon arrival, the

victim notified detectives that he had cut the burglar with a machete,

causing the burglar to flee. Appellant was apprehended nearby, exhibiting

injuries consistent with being cut by a machete. Appellant was transported

to the hospital. N.T., 2/8/2018, at 11-14, 47.

     After processing the scene of the burglary, Detectives Chad Moyer and

Timothy Shoudt proceeded to the hospital at approximately 4:00 a.m. to

question Appellant. Hospital staff notified the detectives that Appellant was


*Retired Senior Judge assigned to the Superior Court.
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recovering from surgery. The detectives, who were in plain clothes, entered

Appellant’s hospital room and identified themselves as police to Appellant,

but did not question him at that time. Because Appellant was 17 years old,

Detective Shoudt called Appellant’s mother and requested her presence at

the hospital so the detectives could interview Appellant about an incident.

The individual who answered the phone identified herself as Appellant’s

mother and stated she would come to the hospital.1 Id. at 14-18, 25-26,

40-41, 47.

      Approximately 1½ hours after Detective Shoudt called Appellant’s

mother, hospital staff called her to notify her that Appellant was ready to be

discharged and she needed to pick him up. Appellant’s mother responded

that she would be there in 20 to 30 minutes. After waiting approximately

one hour, the detectives gave Appellant a hospital phone to call his mother

to ask her to come to the hospital so the detectives could question him.

Again, the detectives waited for her to arrive. Finally, at approximately 8:00

a.m., after Appellant’s mother still failed to appear, the detectives decided to




1 At Appellant’s suppression hearing, Appellant’s mother testified that she
never spoke to police on the phone. She testified that she received a call
from a nurse that Appellant was ready to be picked up and that two
detectives wanted to talk to him, and a second call from Appellant during
which he told her that detectives had asked him questions.            When
Appellant’s mother finally arrived at the hospital, no detectives were
present. N.T., 2/8/2018, at 70-72, 78.



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speak with Appellant in his hospital room. Id. at 18-20, 32-33, 42-43, 51-

52, 54.

        Appellant’s hospital room was separated from the emergency room

area by a curtain. The detectives again identified themselves as police, and

Detective Shoudt read Appellant his rights pursuant to Miranda v. Arizona,

384 U.S. 436 (1966).        Appellant provided verbal confirmation of his

understanding and waiver of those rights.      The detectives then asked

Appellant how he was injured. He stated that he was injured by a robber,

and the detectives told him that they did not believe his story, and they

instead believed he was injured while attempting to burglarize a home. The

detectives also asked Appellant for his DNA sample using a buccal swab to

compare with blood recovered at the scene, to which Appellant consented.

The entire conversation lasted approximately 30 minutes, during which

nurses entered and exited Appellant’s room.      Appellant was still at the

hospital awaiting the arrival of his mother when the detectives left.   N.T.,

2/8/2018, at 20-24, 30, 43-46, 52-54.

        Several months later, Appellant was charged with burglary, simple

assault, terroristic threats,2 and possession of an instrument of crime. On

January 24, 2018, Appellant filed a motion to suppress, challenging the

voluntary, intelligent, and knowing nature of his Miranda waiver and


2   This charge was subsequently withdrawn.



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consent to provide a DNA sample.       A suppression hearing was held on

February 8, 2018, during which the aforementioned facts were developed.

     Regarding Appellant’s waiver of his Miranda rights, both detectives

testified that Appellant appeared alert, responsive, and understanding, and

did not appear to be under the influence of drugs or alcohol.3          N.T.,

2/8/2018, at 20, 25-27, 44-45, 49-50.       On the other hand, Appellant’s

probation officer testified that Appellant is easily confused, struggles with

comprehension, has only completed ninth grade, suffers from several

psychological disorders as well as autism, does not take his prescribed

medications, and is in a special probation program for juveniles with

significant mental health issues.   Id. at 60, 62, 64-65.   The parties later

stipulated to Appellant’s IQ being 72.      See Allentown School District

Reevaluation Report, 3/23/2017, at 3; Stipulation, 3/5/2018.

     On May 23, 2018, the juvenile court denied Appellant’s motion by

order and opinion.    On May 31, 2018, the juvenile court adjudicated




3 No evidence was presented during Appellant’s suppression hearing as to
the type of surgery he underwent, whether local or general anesthesia was
used, or whether Appellant was on any pain medications following surgery.
The only indication of what procedure might have been done is a brief
reference to stitches during the court’s questioning of Appellant’s mother.
N.T., 2/8/2018, at 79.



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Appellant delinquent and committed him to a residential youth facility to

undergo treatment. Appellant timely filed a notice of appeal.4

      We begin with our standard of review of a court’s denial of a motion to

suppress.

      An appellate court may consider only the Commonwealth’s
      evidence 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 factual findings of
      the suppression court, the appellate court is bound by those
      facts and may reverse only if the legal conclusions drawn
      therefrom are in error. It is also well settled that the appellate
      court is not bound by the suppression court’s conclusions of law.

In re B.T., 82 A.3d 431, 435 (Pa. Super. 2013) (citation omitted).

      Preliminarily, the juvenile court found that Appellant was not in

custody, and therefore the Miranda safeguards did not apply.          Juvenile

Court Opinion, 5/23/2018, at 3. “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.”

In re B.T., 82 A.3d at 436 (citation omitted).

      The several factors the court considers to determine whether a
      person is in custody for Miranda purposes under the totality of
      the circumstances of a case include: the basis for the detention;
      its duration; its location; whether the suspect was transferred
      against his will, how far, and why; whether restraints were used;

4Appellant complied with Pa.R.A.P. 1925(b). In lieu of a Pa.R.A.P. 1925(a)
opinion, the trial court referred this Court to its May 23, 2018 opinion, which
addresses Appellant’s issues raised on appeal. Order, 8/21/2018.



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      whether there was a demonstration, threat or use of force; and
      the method of investigation used to confirm or dispel police
      suspicions.

In re K.Q.M., 873 A.2d 752, 755 (Pa. Super. 2005) (citation omitted).

      In this case, Appellant was transported to the hospital and underwent

surgery of some kind for his injuries.   Appellant was ready to be released

following recovery, but the hospital would not release him until a guardian

arrived.   The hospital attempted to contact Appellant’s mother so that

Appellant could be discharged.     The detectives also attempted to contact

Appellant’s mother prior to questioning him, but after four hours decided to

interview Appellant in his hospital room without his mother present.5

Appellant’s mother arrived at some point thereafter, and the hospital

discharged Appellant.   Appellant’s hospital room did not have a door, but

was set off from the remainder of the emergency room area by a curtain.

Prior to the 30-minute interview, the detectives, who were in plain clothes,

identified themselves as police a second time and provided Appellant with

verbal Miranda warnings. During the interview, nurses entered and exited

the room, and the detectives told Appellant that they believed he was the

suspect in the burglary they were investigating.


5 We note that the presence of an interested adult is not required prior to
questioning a juvenile, but is one factor in determining the voluntariness of a
juvenile’s waiver of his or her Miranda rights, and thus police generally
prefer to have an interested person present. See In re T.B., 11 A.3d 500,
507 (Pa. Super. 2010).



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      We find Commonwealth v. Johnson, 727 A.2d 1089 (Pa. 1999),

instructive.   In Johnson, our Supreme Court concluded that Johnson was

not in custody because

      [Johnson’s] inability to leave was not the result of any action of
      restraint by the police, but was due to his physical condition at
      the time. Although the officers displayed their badges, they were
      not    in   uniform    and    conducted    the    interview   with
      the hospital door open and while another patient was in the
      room with [Johnson]. There was no suggestion by [Johnson] that
      he wanted police questioning to cease, or that he objected to the
      questioning.

Id. at 1100.

      Like Johnson, Appellant was not restrained by the police, but by the

hospital. There was no evidence presented that Appellant wished to leave

the hospital; rather, the only evidence regarding Appellant’s restricted

movement was that the hospital would not discharge him without a parent.

Also as in Johnson, Appellant’s room was open to other individuals during

the interview, and there was no indication that Appellant did not wish to

speak to the detectives. Our review of the record reveals that the detectives

did not employ any force or restraints, and in fact gave Appellant the explicit

opportunity to end any questioning by providing him with Miranda

warnings, even though such warnings were not required.          Based on the

totality of the circumstances, we agree with the juvenile court that Appellant

was not in custody at the time he was questioned by police.        Cf. In the

Interest of: J.N.W., 197 A.3d 274, 282-83 (Pa. Super. 2018) (concluding



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J.N.W. was in custody at hospital when she expressed that she wanted to

leave but was told by hospital staff that she was not allowed to, and she was

reluctant to answer coroner’s criminal investigation questions). Accordingly,

because Appellant was not in custody, there was no need for him to waive

his Miranda rights, and we need not determine whether Appellant’s waiver

was knowingly and intelligently given.

      We now turn to Appellant’s claim that his consent to the DNA sample

was not knowing, intelligent, and voluntary. Appellant’s Brief at 18.

      “Although   age   is   one   element   to   acknowledge   in   ascertaining

whether consent was given willingly, minority status alone does not prevent

one from giving consent.” In Interest of Jermaine, 582 A.2d 1058, 1064

(Pa. Super. 1990) (citation and quotation marks omitted).

      In connection with the inquiry into the voluntariness of a consent
      given pursuant to a lawful encounter, the Commonwealth bears
      the burden of establishing that a consent is the product of an
      essentially free and unconstrained choice—not the result of
      duress or coercion, express or implied, or a will overborne—
      under the totality of the circumstances. While knowledge of the
      right to refuse to consent to the search is a factor to be taken
      into account, the Commonwealth is not required to demonstrate
      such knowledge as a prerequisite to establishing a voluntary
      consent. Additionally, although the inquiry is an objective one,
      the maturity, sophistication and mental or emotional state of the
      defendant (including age, intelligence and capacity to exercise
      free will), are to be taken into account.

Commonwealth v. Powell, 994 A.2d 1096, 1101–02 (Pa. Super. 2010)

(citation omitted).




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     Appellant contends that his consent to the DNA sample followed his

purported Miranda violation, and therefore should have been suppressed as

fruit of the poisonous tree.   Appellant’s Brief at 19.   As discussed supra,

there was no Miranda violation. As such, there was no poisonous tree to

produce any such fruit.

     Appellant also argues that his consent was involuntary, unknowing,

and unintelligent “under the same totality of the circumstance[]s as” his

Miranda claim. Appellant’s Brief at 18-19. In denying Appellant’s motion to

suppress his DNA sample, the juvenile court found Appellant’s consent was

not the product of coercion and there was no indication that the detectives

knew or should have known of Appellant’s mental disabilities. Juvenile Court

Opinion, 5/23/2018, at 4-5.

     Our review of the record reveals that even though Appellant had

undergone some type of surgery, he was ready to be discharged by the

hospital, and was alert and appropriately responsive to the detectives’

questions.   The detectives candidly told 17-year-old Appellant that they

wanted to compare his DNA sample to blood recovered at the scene of the

burglary and on the machete used to cut the burglar in order either to clear

Appellant or make him their prime suspect.       They further explained the

process for collecting his DNA sample by buccal swab.          Following that

explanation, Appellant provided verbal consent to submit a DNA sample.




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      While Appellant’s IQ may have been less than the detectives realized,

there was no evidence that Appellant did not appear to understand his

conversation with the detectives or that the detectives coerced Appellant in

any manner.     Rather, the evidence of record indicates that Appellant

provided coherent answers and his vocabulary and general communication

were consistent with those of an adult.        See N.T., 2/8/2018, at 44-45.

Further, there is no evidence of record that would have suggested to the

detectives that at the time they spoke with Appellant he suffered from a low

IQ or mental disabilities. As such, the juvenile court’s analysis is supported

by the record, and we agree with the court that the totality of the

circumstances demonstrates that Appellant voluntarily consented to provide

the DNA sample. See Powell, supra.

      Accordingly, we find no error in the juvenile court’s denial of

Appellant’s motion to suppress.

      Dispositional order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary


Date: 3/12/19

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