J-S39013-19

                                  2019 PA Super 330


    IN THE INTEREST OF: N.M., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
                                               :
    APPEAL OF: N.M., A MINOR                   :      No. 2819 EDA 2018

                Appeal from the Order Dated September 14, 2018
              In the Court of Common Pleas of Montgomery County
               Juvenile Division at No(s): CP-46-JV-0000517-2018


BEFORE: GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.

OPINION BY GANTMAN, P.J.E.:                           FILED OCTOBER 31, 2019

        Appellant, N.M., appeals from the dispositional order entered in the

Montgomery County Court of Common Pleas, following his adjudication of

delinquency on five counts of theft by unlawful taking and three counts of

burglary.1 We affirm.

        The relevant facts and procedural history of this case are as follows.

           On May 13, 2018, the father of a family who lived in a home
           at 439 East Marshall Street in the Borough of Norristown
           contacted the Norristown Police Department to report that
           his home had been burglarized, and seven hundred dollars
           stolen, while he, his wife and their three children slept
           upstairs.   Approximately two weeks later, the father
           contacted Norristown Police Detective Klinger and gave him
           a video recording from a surveillance camera on the
           premises.     The video recording appeared to depict
           [Appellant], whom Detective Klinger knew well, in the act of
           criminal trespass on a residential property at 439 East
           Marshall Street in Norristown.

           On June 27, 2018, twenty-four days before [Appellant’s]
           eighteenth birthday, Detective Klinger prepared to interview
____________________________________________


1   18 Pa.C.S.A. §§ 3921(a) and 3502(a)(1)(ii), respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S39013-19


       [Appellant] about the trespass and burglary at 439 East
       Marshall Street, but he also planned to ask [Appellant]
       about a burglary at 701 Arch Street in Norristown.
       Detective Klinger had known [Appellant] for five or six years
       by that time.      When the detective was a patrolman,
       [Appellant] would walk the beat with him for hours at a time.
       Then-patrolman Klinger and his patrol partner grew to like
       [Appellant]. When they learned someone had stolen his
       bicycle, they gave him a new one. But as familiar as
       [Detective Klinger] was with [Appellant], when it came to
       investigating the two burglaries, Detective Klinger decided
       to enlist the help of a fellow officer who knew [Appellant]
       even better than he: Detective Stephen Sowell. As a former
       school resource officer assigned to [Appellant’s] middle
       school, Detective Sowell had taken [Appellant] on field trips
       and to baseball games as part of a mentoring program.
       [Appellant] even testified that he used to talk to Detective
       Sowell about becoming a policeman someday. Detective
       Sowell testified he and other police officers had a good
       relationship with [Appellant]. “[Appellant] has always been
       around town even before we met him in the school," he
       elaborated. “He would follow us around on patrol calls; he
       would follow us on his bike. So…the whole department knew
       [Appellant]. He’s not a bad kid. He just sometimes makes
       bad choices. Even then, whenever we have contact with
       [Appellant], we’re always trying to help him out.”

       Detective Sowell testified that as of June 27, 2018[,] he had
       known [Appellant] and his mother for approximately seven
       years, and in that time he “had to speak to [Appellant] many
       times.” He stated that [Appellant] had been arrested ten
       times in Norristown and had been a subject of twenty police
       reports in total. Nonetheless, when Detective Klinger told
       Detective Sowell he suspected [Appellant] of being involved
       in the burglary on Arch Street, Detective Sowell doubted
       [Appellant] would have committed a crime that serious.
       Detective Sowell explained, “I’ve known [Appellant] to do
       things, you know, little things here and there, but I’ve never
       known him to do something like that.” [Detective Sowell]
       explained that there were “some items taken in that
       burglary that I personally didn’t think fit [Appellant]. It was
       a large TV. I couldn’t see him taking a TV. And alcohol was
       reported stolen, and I’ve never known him to abuse
       alcohol.”

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       Detective Klinger asked Detective Sowell to serve as the
       main police contact with [Appellant] because [Detective
       Sowell] was specifically assigned to work with juveniles and
       had a better relationship with [Appellant] and his mother.
       Detective     Sowell   called   [Appellant’s]   mother    at
       approximately 9:00 a.m. on June 27th and told her he
       suspected her son of being involved in multiple burglaries.
       He asked, “is it okay if we talk with him and get a
       statement?” He asked if she would “send him down” to the
       police station and she replied that she would.

       Detective Sowell also contacted a man named Maurice Allen,
       a caseworker who supervised [Appellant] in the Academy
       Aftercare program, which was providing court-ordered
       supervision as the result of a prior delinquency disposition.
       Detective Sowell testified that he “wanted to reach out to
       [Mr. Allen] and see if he knew where [Appellant] was, and
       if [Mr. Allen] could help bring [Appellant] in so we could talk
       with [Appellant].” Detective Sowell testified that he knew
       “that children supervised by the Academy are accountable”
       to their case workers, but even [Appellant] did not testify
       that Mr. Allen took [Appellant] into custody, drove him to
       the police station, or made threats or promises to induce
       him to submit to an interview. [Appellant] merely said,
       “Maurice called and said that I had to come down [to the
       police station], because they said there was like burglaries
       that had been robbed.”

       Detective Sowell expected to see [Appellant] around noon,
       but he arrived at the police station only minutes later, at
       approximately 9:30 a.m. [Appellant] did not appear to be
       under the influence of drugs or alcohol. When [Appellant]
       arrived, Detective Sowell brought [Appellant] back into the
       Detective Division, which is an open office area divided into
       cubicles.     Several detectives were present, including
       Detective Klinger in addition to Detective Sowell, and both
       were wearing their badges and guns that day. [Appellant]
       testified that Detective Sowell had to open one door on the
       way back, and said the office had no windows or doors to
       the outside. Although entry to the office was restricted, exit
       was not. [Appellant] was free to leave, and was not
       restrained with handcuffs or shackles. [Appellant] testified
       that he did not “know if [he] could leave the way [he] had

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           come in[,]” but the [court] finds that testimony not to be
           credible, mainly because of [Appellant’s] demeanor, but
           also because of his prior history of ten arrests by the
           Norristown police department, which employed Detective
           Sowell as its juvenile officer.

           The detectives did not place [Appellant] under arrest
           because they were still trying to gather information about
           the two burglaries, one on Arch Street and the other on East
           Marshall. More specifically, [Appellant] was on juvenile
           probation and was wearing a “cuff,” an electronic ankle
           bracelet by which his movements could be tracked by means
           of GPS,[2] and the detectives were in the process of
           obtaining the GPS data to determine whether [Appellant]
           was in the vicinity of the burglaries on Arch Street and East
           Marshall Street when they occurred.

           Detective Sowell told [Appellant] that the police had
           received reports about burglaries of occupied homes, that
           [Appellant] had been captured on video at the scene of one
           of the burglaries, and that he was worried [Appellant] was
           growing up to be “the type of person that’s going to do
           this….” According to [Appellant], Detective Klinger stopped
           over to Detective Sowell’s desk to show [Appellant] a still
           photo taken from the video recording, showing [Appellant]
           at the home on East Marshall Street.

           The tone of the conversation between Detective Sowell and
           [Appellant] was casual. Detective Sowell asked [Appellant]
           “what are you going to do,” “what are you doing for work”
           and “what’s going on with your family?” [Detective Sowell]
           encouraged [Appellant] to find a job with his older brother,
           who had just been admitted to college, and suggested that
           [Appellant] should learn a trade. Then [Detective Sowell]
           reminded [Appellant] that the police had tried to mediate
           many things with him before, but would “not be able to
           mediate this one.” [Detective Sowell] told [Appellant] that
           he might be placed in a residential program for juvenile
           delinquents, but added, “That’s probably a good thing if you
           can go into a placement somewhere where you can learn a
           trade and pick up something or get enough credits to
____________________________________________


2   Global Positioning System.

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       graduate.”

       After Detective Sowell spoke with [Appellant] for
       approximately ten minutes Detective Klinger began
       questioning [Appellant] about the burglary on Arch Street.
       After being shown a photo of the house, [Appellant] said he
       wasn’t sure whether he had burglarized it, but added that
       “maybe he was around back.” Detective Sowell still “didn’t
       think that house sounded like [Appellant],” and thought “he
       would have remembered taking a TV and alcohol.”
       Detective Sowell even told [Appellant] he didn’t think
       [Appellant] was responsible for that burglary.          The
       detectives asked [Appellant] “if he wanted to take a ride,”
       and they got into an unmarked car and drove past the [Arch
       Street] house. [Appellant] told them he did not burglarize
       “that house,” meaning the one on Arch Street.

       While in the car, the detectives continued to talk about what
       [Appellant] planned to do with his life, and the only
       questions they asked him about their investigation
       pertained to the burglary on Arch Street, not East Marshall.
       They drove toward the site of the East Marshall Street
       burglary, and as they neared it [Appellant] “pointed over to
       Marshall Street” and spontaneously blurted out, “I was in
       that one.” The house he pointed to was the one at 439 East
       Marshall Street, which was the location where [Appellant]
       had been recorded on video. As they drove back to the
       police station by way of Moore Street, [Appellant] blurted
       out, “I was in this one and this one.” Detective Klinger
       expressed surprise to Detective Sowell, because they had
       no burglary reports from those houses.3 When asked about
       the unreported burglaries on cross-examination, Detective
       Sowell said, “If they were unreported and it was [Appellant],
       I personally would give him the benefit of the doubt.” They
       returned to the station and told [Appellant] he was free to
       leave, but that they would contact him if they needed to
       speak to him again. They offered him a ride home, but he
       preferred to walk.

          3In addition to being charged with the burglary at the
          home at East Marshall Street, [Appellant] was charged
          with the burglaries of a home at 335 East Moore Street
          and 312 East Airy Street. The Moore Street burglary
          had not been reported to the police department until

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              June [25, 2018,] and the Airy Street burglary had not
              been reported until June [23, 2018].

          In the early afternoon Detective Sowell obtained the GPS
          location data from [Appellant’s] cuff, which placed him
          within a block of three burglaries at the time each was
          committed. (None of the three was the burglary of the
          home on Arch Street.) With that information, Detectives
          Sowell and Klinger were prepared to question [Appellant]
          again. They drove to [Appellant’s] home, where Detective
          Klinger spoke to his mother about having [Appellant] come
          to the police station again that afternoon. She was sitting
          on a couch, holding her baby. Notably, [Detective Klinger]
          did not testify that she said her baby was sick, nor did
          counsel for [Appellant] ask a question that would have
          elicited such testimony on cross-examination.            She
          appeared to comprehend the conversation and did not
          appear to be under the influence of drugs or alcohol. When
          she told Detective Klinger that [Appellant] was not at home,
          he told her that he was probably going to give [Appellant]
          his Miranda[3] warnings and take a statement. He asked if
          she wanted to be present and she said, “No, he can handle
          that,” or “No, he can handle himself.” She asked no
          questions about how [Appellant] would be treated at the
          police station but said, “I don’t know what I'm going to do
          about this one,” expressing her worry about [Appellant] to
          Detective Sowell. The detectives then returned to the police
          station.

          Shortly after they returned to the police station, [Appellant]
          arrived on his own. He did not appear to be under the
          influence of drugs or alcohol. Detective Sowell testified that
          [Appellant] arrived between three o’clock and three thirty in
          the afternoon.      Detective Klinger testified [Appellant]
          arrived at approximately three o’clock.         The evidence
          produced by the Commonwealth against [Appellant]
          includes a small discrepancy in this regard, because
          Detective Klinger wrote in the affidavit of probable cause,
          “At 1530 hours [Appellant] met with me at the police
          station….” This discrepancy is minor, and is easily ascribed
          to imperfect attention to detail. Alternatively, the text of
____________________________________________


3   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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       the affidavit does not necessarily exclude the possibility that
       [Appellant] arrived at the police station before 3:30, but did
       not meet with Detective Klinger until 3:30. Under the
       circumstances, further described infra, the [court] found
       Detective Klinger’s testimony credible.

       Before     questioning   [Appellant],    Detective    Klinger
       telephoned [Appellant’s] mother, told her [Appellant] was
       with [Detective Klinger], told her he was going to take a
       statement from [Appellant], and asked her if she wanted to
       come to the police station to be present. She told him “no,”
       and turned down an offer to speak with her son on the
       telephone. [Detective Klinger] told her he was going to read
       her son the Miranda warnings but she cut him off, telling
       him she knew what they were and that he had her
       permission to take a statement from [Appellant]. She asked
       if [Appellant] would be placed in a residential program, and
       Detective Klinger replied that he did not know, but that did
       not motivate her to go to the police station.

       Detective Klinger asked [Appellant] if he wanted to speak
       with his mother, but he said, “no.” Detective Klinger then
       read [Appellant] the Miranda rights from a written form,
       holding it so [Appellant] could read along.        Detective
       Klinger’s demeanor was calm and friendly. [Appellant] told
       Detective Klinger that he understood his rights. [Appellant]
       had no questions. In court, when testifying on his own
       behalf, [Appellant] conceded that he understood the form to
       state “my rights.” [Appellant] agreed to be questioned, and
       did not ask to speak to his mother, a lawyer or another adult
       before giving a statement to Detective Klinger.

       When the interview began, [Appellant] told Detective
       Klinger that he was not under the influence of medication,
       alcohol or a controlled substance, and that he was not
       suffering from a medical condition that would impair his
       ability to understand the questions and answer completely
       and truthfully. He was never handcuffed or shackled. While
       questioning [Appellant], Detective Klinger kept a normal
       conversational tone and demeanor, refraining from raising
       his voice or “pressing answers” from [Appellant]. Detective
       Klinger made no threats or promises to [Appellant].
       Detective Sowell was asked on direct examination, “Did you
       hear Detective Klinger make any threats to [Appellant]

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       about signing the Miranda form?”         His answer was
       immediate, forceful and credible: “No, that wouldn’t have
       happened while I was in the office.”

       Detective Klinger told [Appellant] that he could refuse to
       answer any questions and stop the questioning any time he
       wished. [Appellant] never asked to stop the interview, but
       Detective Leeds, who was also present, ordered a pizza and
       beverage for [Appellant] and himself, and [Appellant] took
       a break from the interview to eat. At the end of the
       questioning, he was given an opportunity to review the
       [statement] and make changes or additions. His only
       response was to say, “I apologize for what I did. I was
       thinking dumb. I just wanted money.”

       [Appellant] testified on his own behalf at the hearing on the
       suppression motion, and his version of events differed
       materially from those of the three detectives. [Appellant]
       said that in the morning, while riding in the unmarked police
       car, the detectives took him to four houses and asked him
       questions about all four. [Appellant] also said that when he
       was questioned in the afternoon, Detective Sowell said he
       “had to” sign the waiver-of-rights form, or he would be
       charged with “the seven other burglaries.” He said he asked
       to speak to a lawyer, but the detectives refused. [Appellant]
       said he wanted to stop answering questions, and the
       detectives told him, “No, you have to.” In many other
       respects, though, [Appellant’s] testimony was similar to that
       of the detectives, and corroborated theirs.

       [Appellant’s] mother also testified on his behalf.         Her
       testimony also differed materially from that of the
       detectives. She testified that on the morning of June 27,
       2018, when Detective Sowell first contacted her to ask her
       to send [Appellant] to the police station, he did not tell her
       she had a right to be with him at the police station.
       Nonetheless, she revealed that she was aware that she
       could have done so because she testified, “I told him that
       the baby was sick. I would be there, but the baby was sick.”
       Regarding the afternoon questioning of her son, she testified
       that the detectives called to say they were detaining him,
       but never offered to let her speak with him. She testified
       that Detective Klinger did inform her of her son’s Miranda
       rights when he came to her house, but not later, over the

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       telephone. When asked on cross-examination whether she
       did not want [Appellant] to be placed in a residential
       program as a result of the eventual disposition of the
       delinquency proceeding, she replied, “Right is right and
       wrong is wrong. I’m not saying no, I’m not saying yeah.”

       The differences in the testimony between the detectives, on
       the one hand, and [Appellant] and his mother, on the other
       hand, required the undersigned, as the trier of fact, to weigh
       the veracity of the narratives of the witnesses. Detectives
       Sowell, Klinger and Leeds were sequestered, so none of
       them knew how the others testified, yet the testimony of
       each corroborated that of the others. Even the testimony
       of [Appellant] and his mother corroborated key elements of
       their testimony. [Appellant] acknowledged that he was read
       his Miranda rights before being questioned in the
       afternoon; and his mother confirmed the timeline of the
       events and acknowledged that she understood she was
       allowed to be present with her son during the interview. The
       detectives’ answers to questions, whether on direct
       examination or on cross, were responsive, not evasive or
       argumentative.      They sometimes admitted they were
       uncertain as to some facts, and sometimes their testimony
       differed in small details, but those features indicated their
       testimony was not rehearsed, and thus inured to their
       credibility. None of the detectives spoke with a rote or
       robotic tone of voice.

       In contrast, [Appellant’s] demeanor was cagey and he
       appeared unresponsive. He was looking down, evading eye
       contact while he testified. His answers to the leading
       questions of his lawyer were robotic and rote, as if they had
       been rehearsed.          [Appellant’s] mother’s demeanor
       suggested she was somewhat evasive and less than fully
       forthcoming, but she corroborated material elements of the
       testimony of the detectives, and she admitted to feeling
       ambivalent about the possibility that her son might be
       placed in a residential treatment program as a result of the
       eventual disposition.

       With regard to specific differences in the testimony, the
       observation of the witnesses in the courtroom clearly
       indicated that the detectives were fully credible, but
       [Appellant] and his mother were less so.       [Appellant]

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         testified that he wanted to stop the interview, but was told
         he had to continue. He testified that he asked for a lawyer,
         but was denied one. He testified that he was threatened
         with being charged with seven burglaries if he did not admit
         to three of them.      The undersigned finds all of that
         testimony to be not credible. [Appellant’s] mother had no
         objection to her son going to the police station to be
         questioned by the police officers in the morning or the
         afternoon. She was fully aware that she could come along,
         but she did not want to. She did not want to talk about how
         her son would be treated at the police station in the
         afternoon because she knew and trusted the detectives,
         particularly Detective Sowell. She had the opportunity to
         listen to Detective Klinger tell her the Miranda rights to
         which [Appellant] was entitled, but she did not want to
         listen. She was worried about the path [Appellant] was
         following as he reached the legal age of adulthood and she
         was ambivalent about whether placement in a residential
         treatment facility might be best for him if he was
         adjudicated delinquent.

(Trial Court Opinion, filed November 20, 2018, at 2-14) (internal citations

omitted).

      In his afternoon statement, Appellant admitted he had entered three

different residences and removed items from each residence.       On July 12,

2018, Appellant filed a motion to suppress all oral and written statements

given to police on June 27, 2018.     Appellant filed an amended motion to

suppress on July 18, 2018. The court held a suppression hearing on August

6, 2018, and subsequently denied Appellant’s motion to suppress. On August

27, 2018, following a stipulated hearing, the court adjudicated Appellant

delinquent on five counts of theft and three counts of burglary. On September

14, 2018, the court ordered Appellant to be placed in a residential facility at

Summit Academy, to complete 30 hours of community service, and to pay

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$1,000.00 in restitution.     Appellant timely filed a notice of appeal on

September 25, 2018. On September 27, 2018, the court ordered Appellant

to file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). Appellant complied.

      Appellant raises the following issue for our review:

          DID THE JUVENILE COURT ERR IN DENYING [APPELLANT’S]
          MOTION TO SUPPRESS WRITTEN AND ORAL STATEMENTS
          WHERE [APPELLANT] WAS SUBJECTED TO CUSTODIAL
          INTERROGATION WITHOUT THE PROVISION OF MIRANDA
          WARNINGS AND WHERE SUCH WARNINGS WERE ONLY
          OFFERED AS A FORMALITY AT THE CONCLUSION OF THE
          POLICE INVESTIGATION, AT WHICH POINT [APPELLANT’S]
          ALLEGED WAIVER OF CONSTITUTIONAL RIGHTS WAS NOT
          VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY GIVEN?

(Appellant’s Brief at viii) (footnote omitted).

      Appellant argues police subjected him to a custodial interrogation on the

morning of June 27, 2018, because a court-appointed supervisor told

Appellant to go to the police station, where police questioned him in a

“secured” room and in a police car, which showed Appellant reasonably

believed he was not free to leave. Appellant contends the questions during

the morning constituted a custodial interrogation, because the police knew

that the questions they asked were likely to elicit an incriminating response.

Appellant submits the custodial interrogation without Miranda warnings

warranted suppression of any oral or written statement Appellant gave to

police.

      Appellant further suggests the morning and afternoon questionings


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occurred in a continuum, and the afternoon Miranda warnings were

insufficient to cure the lack of Miranda warnings in the morning. Appellant

insists the police leveraged their extensive relationship with him and his family

to neutralize Appellant’s awareness of the environment as hostile, which

resulted in his involuntary waiver of his rights. Appellant asserts his status as

a juvenile and the absence of an interested adult deserve particular

consideration in evaluating whether he effectively waived his Miranda rights.

Appellant concludes this Court should reverse the order that denied

Appellant’s motion to suppress, vacate the dispositional order, and remand for

further proceedings. We cannot agree.

      “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.”   Commonwealth v. Williams, 941 A.2d 14, 26

(Pa.Super. 2008) (en banc) (internal citations omitted).

         [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.

Id. at 27. The reviewing court’s scope of review is limited to the evidentiary

record of the pre-trial hearing on the suppression motion. In re L.J., 622 Pa.

126, 79 A.3d 1073 (2013). “It is within the suppression court’s sole province


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as factfinder to pass on the credibility of witnesses and the weight to be given

their testimony.” Commonwealth v. Luczki, 212 A.3d 530, 542 (Pa.Super.

2019) (quoting Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa.Super.

2013)).   If appellate review of the suppression court’s decision “turns on

allegations of legal error,” then the trial court’s legal conclusions are

nonbinding on appeal and subject to plenary review.       Commonwealth v.

Smith, 164 A.3d 1255, 1257 (Pa.Super. 2017) (quoting Commonwealth v.

Jones, 121 A.3d 524, 526-27 (Pa.Super. 2015), appeal denied, 635 Pa. 750,

135 A.3d 584 (2016)).

      Not every statement an individual makes during a police encounter is

necessarily a response to an interrogation; an individual’s volunteered or

spontaneous utterances are admissible even without Miranda warnings.

Commonwealth v. Gaul, 590 Pa. 175, 180, 912 A.2d 252, 255 (2006);

Commonwealth v. Garvin, 50 A.3d 694, 698 (Pa.Super. 2012) (reiterating

principle that spontaneous or “blurt out” incriminating statements made in

course of small talk with authorities, even in custodial setting, are not per se

subject to suppression). Generic questions seeking general information such

as “name, height, weight, residence, occupation, etc.” are not, as a general

rule, considered part of an interrogation, because they “are not calculated to,

expected to, or likely to elicit an incriminating response, or…asked with [the]

intent to extract or an expectation of eliciting an incriminating [response].”

Id.   Absent coercive or improper tactics, no presumption of compulsion


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attaches to an unwarned admission in this context.         Commonwealth v.

Charleston, 16 A.3d 505, 520 (Pa.Super. 2011), appeal denied, 612 Pa. 696,

30 A.3d 486 (2011), abrogated on other grounds, In re L.J., supra

(overruling unrelated prior law by limiting reviewing court’s scope of review of

suppression decision to evidentiary record of pre-trial hearing on motion to

suppress).

      On the other hand:

         Statements made during custodial interrogation are
         presumptively involuntary, unless the accused is first
         advised of [his] Miranda rights. Custodial interrogation is
         “questioning initiated by law enforcement officers after a
         person has been taken into custody or otherwise deprived
         of his freedom of action in any significant way.” Miranda,
         supra at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. [T]he
         Miranda safeguards come into play whenever a person in
         custody is subjected to either express questioning or its
         functional equivalent. Thus, [i]nterrogation occurs where
         the police should know that their words or actions are
         reasonably likely to elicit an incriminating response from the
         suspect. [I]n evaluating whether Miranda warnings were
         necessary, a court must consider the totality of the
         circumstances. In conducting the inquiry, we must also
         keep in mind that not every statement made by an
         individual during a police encounter amounts to an
         interrogation. Volunteered or spontaneous utterances by an
         individual are admissible even without Miranda warnings.

             Whether a person is in custody for Miranda purposes
             depends on whether the person 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. Moreover, the test for custodial
             interrogation does not depend upon the subjective
             intent of the law enforcement officer interrogator.
             Rather, the test focuses on whether the individual
             being interrogated reasonably believes [his] freedom

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            of action is being restricted.

                                   *     *      *

            Said another way, police detentions become custodial
            when, under the totality of the circumstances, the
            conditions and/or duration of the detention become so
            coercive as to constitute the functional equivalent of
            arrest.

         Thus, the ultimate inquiry for determining whether an
         individual is in custody for Miranda purposes is whether
         there [was] a formal arrest or restraint on freedom of
         movement of the degree associated with a formal arrest.
         Under the totality of the circumstances approach, the
         following factors are relevant to whether a detention has
         become so coercive as to constitute the functional
         equivalent of a formal arrest: the basis for the detention; its
         length; its location; whether the suspect was transported
         against his…will, how far, and why; whether restraints were
         used; whether the law enforcement officer showed,
         threatened or used force; and the investigative methods
         employed to confirm or dispel suspicions.

Williams, supra at 30-31 (some internal citations and quotation marks

omitted). See also Commonwealth v. Yount, 455 Pa. 303, 309, 314 A.2d

242, 246 (1974) (stating any question likely or expected to elicit confession

constitutes “interrogation” under Miranda); Commonwealth v. Turner, 772

A.2d 970 (Pa.Super. 2001) (holding traffic stop where police placed Appellant

in police car and questioned him about narcotic use constituted custodial

interrogation).

         Because Miranda warnings may inhibit persons from giving
         information, …they need be administered only after the
         person is taken into “custody” or his freedom has otherwise
         been significantly restrained. Unfortunately, the task of
         defining “custody” is a slippery one, and policemen
         investigating serious crimes [cannot realistically be

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        expected to] make no errors whatsoever. If errors are made
        by law enforcement officers in administering the
        prophylactic Miranda procedures, they should not breed
        the same irremediable consequences as police infringement
        of the Fifth Amendment itself.       It is an unwarranted
        extension of Miranda to hold that a simple failure to
        administer the warnings, unaccompanied by any actual
        coercion or other circumstances calculated to undermine the
        suspect’s ability to exercise his free will, so taints the
        investigatory process that a subsequent voluntary and
        informed waiver is ineffective for some indeterminate
        period.   Though Miranda requires that the unwarned
        admission must be suppressed, the admissibility of any
        subsequent statement should turn in these circumstances
        solely on whether it is knowingly and voluntarily made.

Oregon v. Elstad, 470 U.S. 298, 309, 105 S.Ct. 1285, 293, 84 L.Ed.2d 222,

___ (1985) (internal citations and some quotation marks omitted).

        [I]f a suspect makes a statement during custodial
        interrogation, the burden is on the Government to show, as
        a prerequisite to the statement’s admissibility in the
        Government’s case in chief, that the defendant voluntarily,
        knowingly and intelligently waived his rights.

           The inquiry has two distinct dimensions. First[,] the
           relinquishment of the right must have been voluntary
           in the sense that it was the product of a free and
           deliberate choice rather than intimidation, coercion or
           deception. Second, the waiver must have been made
           with a full awareness both of the nature of the right
           being abandoned and the consequences of the
           decision to abandon it. Only if the totality of the
           circumstances surrounding the interrogation reveal
           both an uncoerced choice and the requisite level of
           comprehension may a court properly conclude that
           Miranda rights have been waived.

           A determination of whether a juvenile knowingly
           waived his Miranda rights and made a voluntary
           confession is to be based on a consideration of the
           totality of the circumstances, including a consideration
           of the juvenile’s age, experience, comprehension and

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J-S39013-19


            the presence or absence of an interested adult.

In re B.T., 82 A.3d 431, 436 (Pa.Super. 2013) (quoting In re T.B., 11 A.3d

500, 505-06 (Pa.Super. 2010) (internal citations and quotation marks

omitted)   (reiterating   various   factors   to   consider    under   totality   of

circumstances test for custodial interrogation)).

      “Elstad stands for the rule that where an unwarned statement is not

the product of police coercion, ‘a careful and thorough administration’ of a

defendant’s Miranda rights will render any subsequent statement voluntary

and knowing, and therefore, admissible.” Charleston, supra at 521. Thus,

a prior Miranda violation does not necessarily disable a suspect from waiving

Miranda rights in the future, after receiving the requisite warnings.

Commonwealth v. DeJesus, 567 Pa. 415, 434, 787 A.2d 394, 405 (2001),

cert. denied, 537 U.S. 1028, 123 S.Ct. 580, 154 L.Ed.2d 441 (2002),

abrogated on other grounds, Commonwealth v. Cousar, 593 Pa. 204, 928

A.2d 1025 (2007), cert. denied, 553 U.S. 1035, 128 S.Ct. 2429, 171 L.Ed.2d

235 (2008) (referring to rescinded “relaxed waiver” rule utilized in DeJesus

that allowed reviewing court to address merits of waived claims in capital

direct appeals)).

      Furthermore, the presence of an interested adult is also no longer a per

se requirement during a police interview of a juvenile. In the Interest of:

J.N.W., a Minor, 197 A.3d 274 (Pa.Super. 2018).               The presence of an

interested adult, however, is a factor in determining the voluntariness of a


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J-S39013-19


juvenile’s waiver of Miranda rights. Commonwealth v. Smith, 210 A.3d

1050, 1060 (Pa.Super. 2019) (holding: “[W]hether a juvenile defendant was

afforded the opportunity to speak with an interested adult before waiving

Miranda rights is but one factor in the totality-of-the-circumstances

analysis”; likewise, low intelligence level does not necessarily render Miranda

waiver defective); Commonwealth v. Knox, 50 A.3d 732, 747 (Pa.Super.

2012), appeal denied, 620 Pa. 721, 69 A.3d 601 (2013) (holding 17-year-old

appellant knowingly, intelligently, and voluntarily waived Miranda rights,

where police contacted father but father declined to accompany appellant,

appellant had ninth-grade educational level, previous exposure to legal

system, and no trouble reading Miranda waiver form, or appear to be under

the influence of drugs or alcohol). Cf. In the Interest of: N.B., 187 A.3d

941 (Pa.Super. 2018) (en banc) (affirming trial court’s decision to suppress

statements of juvenile made during police interview, where police quickly

recited Miranda warnings and did not provide them in writing to 14-year-old

juvenile, with developmental delays, who did not attach any significance to

warnings; holding: “In light of his age, his intellectual challenges, the absence

of an interested adult, and his belief that he was ‘forced to be there by his

mother and that he was directed to confess[,]’ we conclude that [juvenile] did

not knowingly waive his Miranda rights”); J.N.W., supra (affirming trial

court’s decision to suppress statements of juvenile made during police

interview because 17-year-old juvenile did not voluntarily waive her Miranda


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J-S39013-19


rights, where she was subjected to several different encounters with

authorities which constituted custodial interrogation; questioning of juvenile

at police department, although likely not custodial interrogation, was still

coerced because juvenile’s cooperation was induced with threatening

references to possible charges against her and possible removal of her son

from her care); In re T.B., supra at 507 (holding 15-year-old juvenile with

low I.Q., did not knowingly and intelligently waive Miranda rights, where

police failed to inform interested adult about juvenile’s rights, and no

interested adult attended interrogation). The relevant inquiry is whether the

statement following proper warnings was voluntarily made under the totality

of the circumstances. In re B.T., supra.

      Instantly, police viewed a video recording from a surveillance camera

that appeared to depict Appellant in the act of criminal trespass on a

residential property at 439 East Marshall Street in Norristown. As a result,

Detective Klinger, who knew Appellant well, suspected Appellant might have

been involved in a reported burglary on East Marshall Street. Police asked

Appellant’s mother and his court-ordered supervisor to tell Appellant to come

to the police station. Appellant arrived at the station at approximately 9:30

a.m. He did not appear to be under the influence of drugs or alcohol. When

Appellant arrived, Detective Sowell brought him back into the Detective

Division, which is an open office area divided into cubicles. Several detectives

were present, including Detective Klinger. Detective Klinger and Detective


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J-S39013-19


Sowell were wearing their badges and guns that day. Although entry to the

office was restricted, exit was not, and Appellant was free to leave. He was

not restrained with handcuffs or shackles. Appellant testified that he did not

know if he could leave the way he came in, but the court found that testimony

incredible, given Appellant’s demeanor and his prior history of ten arrests by

the Norristown police department, which employed Detective Sowell as its

juvenile officer. The detectives did not place Appellant under arrest, but they

were trying to gather information about two burglaries, one on Arch Street

and the other on East Marshall Street.

      At this time, Appellant was on juvenile probation and was wearing an

electronic ankle bracelet that tracked his movements. The detectives were in

the process of obtaining the GPS data to see if Appellant had been in the

vicinity of the burglaries on Arch Street and East Marshall Street when they

actually occurred.   Detective Sowell told Appellant about the reports of

burglaries of occupied homes and showed Appellant a still photo taken from

the video recording that showed Appellant at the East Marshall Street

residence.

      The tone of the conversation between Detective Sowell and Appellant

was casual. Detective Sowell tried to encourage Appellant to learn a trade or

follow the example of his older brother who had just been admitted to college.

After Detective Sowell spoke with Appellant for about ten minutes, Detective

Klinger questioned Appellant about the burglary on Arch Street.        Neither


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J-S39013-19


detective issued Miranda warnings to Appellant. After seeing a photo of the

Arch Street house, Appellant did not recognize it and was unsure if he had

burglarized it.   Detective Sowell said he did not think Appellant was

responsible for that burglary.

      Then, the detectives asked Appellant if he wanted to take a ride.

Appellant agreed, went with the detective in an unmarked car, and drove past

the Arch Street house. Appellant told the detectives he did not burglarize the

Arch Street house. The detectives continued to talk to Appellant about what

he planned to do with his life, and asked him questions only about their

investigation of the burglary on Arch Street, not about the one on East

Marshall Street. As they neared the site of the East Marshall Street burglary,

however, Appellant pointed and disclosed, “I was in that one.” The house

Appellant pointed to was the one at 439 East Marshall Street, where he had

been recorded on video. As they drove back to the police station by way of

Moore Street, Appellant announced, “I was in this one and this one.” Detective

Klinger and Detective Sowell were surprised because they had no burglary

reports on those houses (Moore Street and Airy Street).        Because these

burglaries were unreported, Detective Sowell was inclined to give Appellant

the benefit of the doubt. After the detectives returned to the station with

Appellant, they told Appellant he was free to leave, but they would contact

him if they needed to speak to him again. They offered Appellant a ride home,

but he preferred to walk and left the station.


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J-S39013-19


      Here, the detectives suspected Appellant might have been involved in

the East Marshall Street burglary and left instructions for him to come to the

station.   While at the station, the tone of the conversation was casual.

Appellant was not placed under arrest when he arrived at the police station,

because the detectives were still trying to gather information about the Arch

Street and the East Marshall Street burglaries. To that end, the detectives

asked Appellant specific questions about his possible involvement in the

burglary on Arch Street.    No doubt, the questions about the Arch Street

burglary were meant to produce an incriminating response; and Appellant

should have been warned.      See Williams, supra; Yount, supra.          The

detectives were also in the process of obtaining the GPS data from Appellant’s

electronic ankle bracelet. When Appellant did not recognize the Arch Street

house in the photograph, the detectives invited him to take a ride with them.

      Once Appellant entered a police vehicle, his freedom of action was more

restricted. See Williams, supra. Although Appellant agreed to go with the

detectives, at that point no reasonable person would feel free to exit the car

at any time, particularly when the ride was meant to confirm his involvement

in one or more crimes. See id. Therefore, the morning session with police

rose to the level of a custodial interrogation, when Appellant was physically

confined in the police vehicle, with detectives he knew and trusted, who took

him around the area of the burglary on Arch Street. In the process of moving

on to the East Marshall Street burglary location, Appellant implicated himself


                                    - 22 -
J-S39013-19


in that burglary and two other, unreported burglaries.         The trial court

characterized Appellant’s admissions as “blurt-outs.”    Yet, the surrounding

setting arguably created a form of custodial pressure that led to Appellant’s

incriminating oral statements, given the reason for the interaction between

the detectives and Appellant, the length of the interaction, its location, and

the investigative methods employed to relax Appellant’s guard.       Appellant

made these statements without the benefit of Miranda warnings.

      The detectives subsequently obtained the GPS location data from

Appellant’s ankle cuff, which placed him in the general vicinity of the three

houses he had identified. Detective Klinger first spoke with Appellant’s mother

in person about questioning Appellant again and informed her that they would

give Appellant Miranda warnings and take a statement from him. Appellant’s

mother declined to accompany Appellant for any questioning.

      When Appellant came back to the police station later that afternoon,

Detective Klinger called Appellant’s mother. She again declined to be present

for questioning.   Detective Klinger began to read Miranda warnings to

Appellant’s mother, but she stopped him before he had finished and gave

permission for him to take Appellant’s statement. Appellant declined to talk

to his mother on the phone. Detective Klinger read Appellant his Miranda

rights, confirmed Appellant understood his rights, and questioned him about

the three burglaries. At the end of the questioning, Appellant was given an

opportunity to review his statement and make changes or additions. His only


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J-S39013-19


response was to say, “I apologize for what I did. I was thinking dumb. I just

wanted money.”

     At    the   suppression   hearing,   Appellant   disputed   the   detectives’

testimony.    Responding to Appellant’s challenge to the warned statement

made during the afternoon session, the trial court reasoned as follows:

          [The court] found [Appellant’s] testimony regarding [the
          afternoon questioning] not credible based on his demeanor
          and the credible, contradictory testimony by Detectives
          Sowell, Klinger and Leeds. In contrast to the morning
          interview, Detective Klinger tried to get [Appellant’s]
          mother to come to the station, but she declined. [Appellant]
          told Detective Klinger that he did not want his mother
          present during the interview.       Detective Klinger gave
          [Appellant] his Miranda warnings and he made a knowing,
          intelligent and voluntary waiver of his constitutional rights.
          There is no basis for suppressing the statement [Appellant]
          gave in the afternoon.

(Trial Court Opinion at 20).    During the afternoon session with Appellant,

police twice told Appellant’s mother they were about to take a statement from

Appellant and started to read Miranda warnings to her over the phone until

she stopped them. Appellant’s mother made clear to police that she would

not attend the session, gave permission for the inquiry, and rejected their

offer to speak with Appellant. Thus, the absence of an interested adult did

not invalidate Appellant’s waiver of his Miranda rights. See Smith, supra.

The afternoon session involved Miranda warnings and a confirmation that

Appellant had made a knowing, intelligent and voluntary waiver of his

constitutional rights. Moreover, the afternoon session with Appellant occurred

approximately three hours after the morning session, which is sufficient time

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J-S39013-19


to render this statement voluntary. See DeJesus, supra. Thus, the totality

of the circumstances surrounding the afternoon interrogation revealed an

independent choice and the requisite level of comprehension to support the

trial court’s conclusion that Appellant knowingly waived his Miranda rights

and made a voluntary confession. See In re B.T., supra. Therefore, the

court correctly denied suppression of Appellant’s afternoon statement.

Accordingly, we affirm.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/19




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