J. A18029/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                       Appellant        :
                                        :
                  v.                    :         No. 2062 MDA 2015
                                        :
CODY RYAN RIGG                          :


            Appeal from the Order Entered November 18, 2015,
              in the Court of Common Pleas of Berks County
             Criminal Division at No. CP-06-CR-0004374-2014


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STEVENS,* P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED FEBRUARY 09, 2017

     The Commonwealth appeals from the order entered November 18,

2015, granting defendant/appellee Cody Ryan Rigg’s (“Rigg”) motion to

suppress statements. After careful review, we affirm.

     The trial court has summarized the history of this case as follows:

                  On July 7, 2014, Detective Michael Fick, with
           the Berks County District Attorney’s Office, assisted
           with an investigation of child abuse. He was asked if
           he     would    interview,   along   with  Detective
           [Christopher] Santoro, one Cody Rigg (Defendant) in
           an interview room in the Detective’s Unit on the
           15th floor of the Services Center in Reading, Berks
           County, Pennsylvania. Detective Fick initially went
           over basic information with [Rigg]. The detective
           began a time line to talk to [Rigg] about what had
           happened to an 11 month old girl named [J.F.], who
           was injured somehow. The interview began around
           10:15 am with a break around 11:50 am. [Rigg]

* Former Justice specially assigned to the Superior Court.
J. A18029/16


             asked to record the interview on his phone. The
             detective asked for a copy of the recording; [Rigg]
             agreed to this. [Rigg] left the room to use the
             restroom and was asked to wait in the lobby from
             where he would be retrieved after Detective Fick
             consulted with Sergeant [Harold] Shenk.         The
             interviewing continued until 1225 hours and [Rigg]
             was given crackers and water. Detective Fink [sic]
             then advised [Rigg] that they had with [sic] other
             detectives who were doing other interviews and that
             his story was not matching up. At approximately
             1250 hours, [Rigg] admitted that he caused the
             injuries to [J.F.]. [Rigg] then wrote and signed his
             three page statement (Notes of Testimony, 4/16/15,
             pp. 21-30).

                    [Rigg] was charged by Criminal Information
             with three counts of Aggravated Assault, in violation
             of 18 Pa.C.S.A. § 2702(a)(1), all felonies.         On
             November 3, 2014, [Rigg], through his attorney,
             filed an Omnibus Pre[-]Trial Motion. The hearing
             was held on January 22, 2015; April 16, 2015 and
             concluded on June 29, 2015. [Rigg]’s Motion to
             Suppress Statements was granted on November 18,
             2015. On November 25, 2015, the Commonwealth
             filed a Notice of Appeal to the Superior Court,
             certifying that this ruling terminated or substantially
             handicapped the prosecution of this case.[1] In its
             Concise Statement of Errors Complained of on
             Appeal,[2] the Commonwealth asserts that “the trial
             court erred in suppressing statements pursuant to
             Miranda[3] made during a non-custodial interview
             where the defendant was told he was free to leave.”

Trial court opinion, 2/3/16 at 1-2; Docket #42.




1
    Pa.R.A.P. 311(d); Commonwealth v. Dugger, 486 A.2d 382 (Pa. 1985).
2
    Pa.R.A.P. 1925(b).
3
    Miranda v. Arizona, 384 U.S. 436 (1966).


                                      -2-
J. A18029/16


     The   trial   court,   after   several   evidentiary   hearings   on   Rigg’s

suppression motion, made the following findings of fact:

           1.      On July 4th, 2014, Berks County Children &
                   Youth Service (CYS) received a report of an
                   alleged child abuse victim. The victim was a
                   ten (10) month old female (J.F.). The victim
                   was treated at the Reading Hospital and then
                   transported to Hershey Medical Center. The
                   victim suffered from a brain bleed, bruises on
                   her face/chin area and bruises on her neck and
                   ears.

           2.      During the investigation Detective Harold
                   Shenk and Officer Matthew F. Harley met with
                   a CYS case worker Pat Murray to locate
                   possible suspects. The Defendant (Cody Rigg)
                   was mentioned as a possible suspect.

           3.      On July 5th Sergeant Matthew F. Harely [sic]
                   interviewed [Rigg] at Hershey Medical Center
                   and no incriminating statements were made.
                   Subsequently on the same day, Sergeant Vega
                   also interviewed [Rigg] at his residence and no
                   incriminating statements were made.

           4.      Sergeant    Vega    scheduled   an    interview
                                                      th
                   appointment with [Rigg] for July 7 , 2014 at
                   the Berks County Services Center.        [Rigg]
                   appeared [at] approximately 10:00 a.m. on
                   said date. Detective Fick escorted [Rigg] to
                   the front interview room on the 15th floor.
                   Detective Fick started to ask basic questions
                   (name, date of birth, address).

           5.      [Rigg] requested that the interview be
                   recorded on his cell phone. Detective Fick
                   permitted this and requested a copy of the
                   recording. [Rigg] agreed and the questioning
                   commenced.

           6.      Detective Fick informed [Rigg] that he was not
                   under arrest and he can leave at any time. He


                                       -3-
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                advised [Rigg] that he would be going home
                “no matter” what he said. The Detectives also
                handed [Rigg] a “Notification of Non-Arrest”
                form. [Rigg] signed the form at approximately
                10:15 a.m. The Detectives at this point had
                narrowed their forms [sic] to [Rigg] alone.
                Hence they used all of the tactics at their
                disposal to coerce a statement from [Rigg].

          7.    During the interview the Detective asked
                [Rigg] what happened to J.F. [Rigg] explained
                the events that transpired and said his two (2)
                year old daughter previously kicked J.F. in the
                face and ultimately [Rigg] said he does not
                know exactly what happened to J.F. She was
                just not her normal self and unresponsive.
                [Rigg] brought the issue to the birth mother
                and she called the paramedics.

          8.    [Rigg] received a break at approximately
                11:50 a.m.         The interview resumed at
                approximately 12:00 p.m. Detectives Fick and
                Santoro continued to ask the same questions
                repeatedly to [Rigg].        [Rigg] consistently
                denied knowing how J.F. sustained her injuries.
                The Detectives used multiple aggressive tactics
                (profanity, indirect threat[s], lies about
                witnesses’ statements, etc.) during questioning
                and [it] lasted for several hours.

          9.    Subsequently, after approximately several
                hours of intense questioning, [Rigg] confessed
                and stated he caused injury to J.F. by shaking
                her and was convinced to write a three (3)
                page statement about his actions. [Rigg] was
                further directed into another room to visually
                record his statements. [Rigg] was arrested
                and charged with three (3) counts of
                Aggravated Assault and one (1) count of
                Endangering Welfare of Children.

          10.   There was a pre-meditated attempt on the part
                of the police interviewers to take advantage of



                                  -4-
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                 [Rigg]’s lack of mental capacity to extract
                 incriminating statements.

           11.   The statements of [Rigg] were the product of
                 custodial interrogation. In spite of statements
                 that [Rigg] was free to leave at any time, this
                 court is convinced that those statements were
                 false and misleading.

           12.   There is no reason, whatsoever, in the
                 circumstances of this interrogation why the
                 police chose not to give [Rigg] his Miranda
                 warnings.

           13.   The statements of [Rigg] were involuntary.

“Findings of fact and conclusions of law pursuant to Pa.R.Crim.P. 581(I),”

11/18/15 at 1-2; Docket #29 (emphasis added).

     The Commonwealth has raised the following issues for this court’s

review:

           A.    Did the trial court err in suppressing
                 statements obtained as a result of a non-
                 custodial interview?

           B.    Did the trial court err in suppressing
                 statements that were voluntarily made?

Commonwealth’s brief at 4 (capitalization deleted).

           When     the   Commonwealth       appeals   from     a
           suppression order, we follow a clearly defined
           standard of review and consider only the evidence
           from the defendant’s witnesses together with the
           evidence of the prosecution that, when read in the
           context of the entire record, remains uncontradicted.
           The suppression court’s findings of fact bind an
           appellate court if the record supports those findings.
           The suppression court’s conclusions of law, however,
           are not binding on an appellate court, whose duty it



                                    -5-
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             is to determine if the suppression court properly
             applied the law to the facts.

Commonwealth v. Nester, 709 A.2d 879, 880-881 (Pa. 1998) (citations

omitted).    “The determination of whether a confession is voluntary is a

conclusion   of   law   and,   as   such,   is   subject   to   plenary   review.”

Commonwealth v. Templin, 795 A.2d 959, 961 (Pa. 2002), citing Nester,

supra.

             Statements made during custodial interrogation are
             presumptively involuntary, unless the accused is first
             advised of . . . Miranda rights. Commonwealth v.
             DiStefano, 782 A.2d 574, 579 (Pa.Super. 2001),
             appeal denied, 569 Pa. 716, 806 A.2d 858 (2002).
             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.
             “The Miranda safeguards come into play whenever a
             person in custody is subjected to either express
             questioning      or    its   functional     equivalent.”
             Commonwealth v. Gaul, 590 Pa. 175, 180, 912
             A.2d 252, 255 (2006), cert. denied, 552 U.S. 939,
             128 S.Ct. 43, 169 L.Ed.2d 242 (2007).             Thus,
             “Interrogation occurs where the police should know
             that their words or actions are reasonably likely to
             elicit an incriminating response from the suspect.”
             Commonwealth v. Ingram, 814 A.2d 264, 271
             (Pa.Super. 2002), appeal denied, 573 Pa. 671, 821
             A.2d 586 (2003). “In evaluating whether Miranda
             warnings were necessary, a court must consider the
             totality of the circumstances . . . .” Gaul, supra.

Commonwealth v. Gonzalez, 979 A.2d 879, 888-889 (Pa.Super. 2009),

quoting Commonwealth v. Williams, 941 A.2d 14, 30 (Pa.Super. 2008)

(en banc).



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                 Whether a person is in custody for
                 Miranda purposes depends on whether
                 the person is physically denied of [her]
                 freedom of action in any significant way
                 or is placed in a situation in which [she]
                 reasonably believes that [her] 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 [her] freedom of action is being
                 restricted.

           Commonwealth v. Clayton Williams, 539 Pa. 61,
           74, 650 A.2d 420, 427 (1994) (internal citations
           omitted). See also Commonwealth v. Mannion,
           725 A.2d 196, 202 (Pa.Super. 1999) (en banc)
           (stating whether person is in custody for Miranda
           purposes must be evaluated on case-by-case basis
           with due regard for facts involved); Commonwealth
           v. Peters, 434 Pa.Super. 268, 642 A.2d 1126, 1130
           (1994) (en banc), appeal denied, 538 Pa. 668,
           649 A.2d 670 (1994) (stating: “Among the factors
           the court utilizes in determining, under the totality of
           the circumstances, whether the detention became so
           coercive as to constitute the functional equivalent of
           a formal arrest are: the basis for the detention; the
           duration; the location; whether the suspect was
           transferred against [her] will, how far, and why;
           whether restraints were used; the show, threat or
           use of force; and the methods of investigation used
           to confirm or dispel suspicions”; fact that defendant
           was focus of investigation is relevant for
           determination of whether defendant was in “custody”
           but does not require per se Miranda warnings).

Williams, 941 A.2d at 30-31 (brackets in original).

           When deciding a motion to suppress a confession,
           the touchstone inquiry is whether the confession was
           voluntary.   Voluntariness is determined from the


                                    -7-
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             totality of the circumstances surrounding the
             confession. The question of voluntariness is not
             whether the defendant would have confessed without
             interrogation, but whether the interrogation was so
             manipulative or coercive that it deprived the
             defendant of his ability to make a free and
             unconstrained     decision  to   confess.       The
             Commonwealth has the burden of proving by a
             preponderance of the evidence that the defendant
             confessed voluntarily.

Nester, 709 A.2d at 882 (citations and footnote omitted).

             When assessing voluntariness pursuant to the
             totality of the circumstances, a court should look at
             the following factors: the duration and means of the
             interrogation; the physical and psychological state of
             the accused; the conditions attendant to the
             detention; the attitude of the interrogator; and any
             and all other factors that could drain a person’s
             ability to withstand suggestion and coercion.

Id., 709 A.2d at 882 (citations omitted). “The line of distinction between a

voluntary and an involuntary confession is that at which governing

self-direction is lost and compulsion propels the confession.”          Id. at 884

(citations omitted).

        Before the interview began at 10:15 a.m., Rigg signed a “Notification

of Non-Arrest” form, acknowledging that he was not under arrest and was

free to leave at any time.        (Notes of testimony, 4/16/15 at 24-25;

Commonwealth’s Exhibit 2.) Detective Fick testified that Rigg appeared to

understand the form and did not have any questions.             (Id. at 25.)    Rigg

asked    whether   he   could   record   the   interview   on    his   cell   phone;




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Detective Fick did not object but requested that Rigg make him a copy. (Id.

at 26.) Rigg agreed. (Id.)

      The interview took place on the 15th floor. They sat in a small room,

approximately 7’ by 6’, at a round table. (Id. at 42.) The door was closed

but not locked. (Id. at 43.) They took a short, 10-minute break from 11:50

a.m. to 12:00 p.m., during which Rigg left the room to use the bathroom.

(Id. at 28, 50-51.) Rigg was not accompanied by law enforcement. (Id.)

Detective Fick asked him to wait in the lobby area when he was done. (Id.)

      They took a second break at 12:25 p.m., and Detective Fick got Rigg

some crackers and water. (Id. at 29.) Rigg remained alone in the interview

room during this second break. (Id. at 58.) Up until this point, Rigg had

consistently denied knowing anything about J.F.’s injuries.      (Id. at 57.)

Detective Santoro showed Rigg color photographs of J.F. in a body cast and

told him to “take a look at these and really think about it.”    (Id. at 76.)

Detective Santoro told Rigg, “I don’t want to hear, ‘I didn’t do it.’” (Id. at

77.) According to Detective Fick, it was during this second break that they

realized Rigg’s story “wasn’t matching with what the others were obtaining.”

(Id. at 58.)

      When the questioning resumed, Detective Fick told Rigg that “things

weren’t matching.” (Id. at 59.) However, Rigg continued to deny causing

the injuries to J.F. (Id. at 59-60.) Detective Santoro testified that, “I pled

with him if he knew what happened to this child to tell us so that we could



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let the hospital know how the injuries were inflicted.” (Id. at 77.) Finally,

at 12:50 p.m., Rigg confessed and agreed to make a statement.          (Id. at

60.)

       According to Detective Fick’s testimony, at first, they had no specific

information that would implicate Rigg.       (Id. at 49-50.)    Detective Fick

testified that, “And when we met with [Rigg] initially, I was under the

impression that we were talking to him and trying to get a timeline. I don’t

believe that anyone was looking at him at that time like he had any

involvement in this.” (Id. at 41.) It is clear, however, that as the interview

progressed, Detectives Fick and Santoro became increasingly aggressive in

their questioning of Rigg:

            [Detective Santoro]: “I walked into that room [at
            Hershey Medical Center]. It broke my heart. We do
            this for a reason. We spent the weekend in here for
            a child we never met before. I know you for the last
            hour. I don’t know if you love this child or reject it.
            You have nothing to do with this child. If you can
            look at this child and not feel something, I don’t
            know. I think you do. Nobody is going to blow
            smoke up our asses and tell us a 2 year old did this.
            It’s bullshit. Bullshit. Now’s the time for us so we
            can tell the doctors and maybe save her life. If this
            child dies and you know what happened, there’s
            gonna [sic] be a big problem. Period. You think
            because ‘I didn’t have anything to do with it but I
            know what happened,’ my opinion is if I could drive
            it home on you, I will. If I could drive it home on
            you, and you will burn.”

            Detective Fick then said[,] “if we find out someone
            lied, they’re fucked.”




                                    - 10 -
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           Detective Santoro then said, “I met her five minutes
           and it breaks my heart. Now tell us what happened.
           It’s bullshit that you don’t know. You know what
           happened.”

           Detective Fick said, “she was under your care.”

           Detective Santoro said, “somebody start talking
           because she’s over there running her mouth[,]”
           referring to J.F.’s mother.[4]

           Detective Fick said, “she [J.F.’s mother] already told
           us something that doesn’t match.”

           Detective Santoro said, “if you did something and it
           was an accident, on that recording, you need to tell
           us because if you walk out of here and we call you
           back in it’s not on there that it was an accident. So
           what happened with the child? Don’t tell me a
           2 year old did this. Don’t tell me you don’t know.
           Again, we have 60 years[’] law enforcement and we
           talk to liars and murderers every day who blow
           smoke up my ass and spend life in prison. We need
           the information to know if this child will survive and
           how things happened so doctors can save her life.”

           Detective Fick said, “if you made a mistake, tell us
           so we can help this child. That’s what we’re all here
           for no matter what happened.”

           Detective Santoro said, “I can see it all over your
           face that you know what happened[,]” after which
           [Rigg] said, “I don’t know. I feel so bad for this kid.”




4
  In fact, Detective Santoro testified that while J.F.’s mother was in the
office, he did not know whether or not she was being interviewed at that
time. (Notes of testimony, 4/16/15 at 74.)


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Rigg’s brief in support of omnibus pre-trial motion, 7/23/15 at 16-17;

Docket #25 (some brackets in original).5

             Detective Fick said, . . . “What went wrong? You
             can’t tell us you don’t know. Here’s what happened:
             you know, or you made a mistake and accidentally
             hurt this child.”

             Detective Santoro then said, “or you tried to kill
             her.”

             Detective Fick asked, “are you a killer?” which [Rigg]
             denied. Detective Fick then said, “scratch that off
             the table.”

Id. at 17.

             Detective Santoro then asked, “who hurt this kid?
             Don’t tell me you don’t know who hurt this child.
             You were there. We talked to people already. These
             marks just don’t appear like in a horror movie. This
             child was injured. This child was hurt. The next
             day, she has marks. The kids didn’t do this. The
             other injuries weren’t from that night. There was a
             full scan of her body. This child has old injuries,
             broken bones that are healing, so you need to start
             running your mouth because if she’s saying you’re a
             killer, then I guess we’ll believe her. Is that what
             you want to do?”

Id.

             Detective Santoro said, . . . “Let me take a break
             and give you about 5 to 10 minutes and when we
             come back I don’t want to hear that we don’t know,
             that I have no idea, that’s craziness, that’s insanity.”



5
  From our review of the recordings, these quotations are substantially
verbatim. There is no transcript in the record. However, while a word or
phrase is missing here or there, as a whole, they accurately reflect what was
being said.


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              Detective Fick then offered to bring [Rigg] another
              water into the interview room to which [Rigg]
              responded, “um, sure.” Detective Santoro finished
              with “think about it. Really look at her[,]” referring
              to the photographs of J.F. in the hospital bed.

Id. at 18.

      Detectives Fick and Santoro then left Rigg in the interview room alone

with the photographs of J.F. Rigg was not told he was free to leave. (Id. at

58-59.) They returned approximately ten minutes later, and the questioning

resumed. Unfortunately, the third part of the interview, from 12:34 p.m. to

12:50 p.m., is not available.6     However, Detective Fick testified that, “my

report indicates when we pushed approximately 12:34, it was at 12:50 is

when he admitted that he caused the injuries.”           (Notes of testimony,

4/16/15 at 60.)     Up until that point, Rigg had consistently denied that he

hurt J.F.    (Id. at 59-60.)   Detective Fick testified that they told Rigg that

“things were not matching” and that he needed to tell them the truth so they

could help J.F. (Id. at 60-61.) Although Rigg was told he was free to leave

and could end the interview at any time prior to the start of the interview

process at 10:15 a.m., it was not repeated until after he confessed. (Id. at

46, 57, 59, 64, 71.)

      Examining the totality of the circumstances, we agree with the trial

court that a reasonable person in Rigg’s shoes would not have felt free to



6
  Apparently, this portion of the interview was deleted from Rigg’s phone.
(Notes of testimony, 4/16/15 at 17-18, 33.)


                                      - 13 -
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leave, particularly when it became clear to the detectives that Rigg’s story

was not “matching up.” Detective Fick testified that during the first part of

the interview, he had no particular reason to believe Rigg was responsible

for J.F.’s injuries.   (Id. at 49.)     However, after the second break at

12:25 p.m., it became apparent that Rigg was not telling them the truth.

(Id. at 57-59.) It was at this point that Rigg became the prime suspect in

the investigation. (Id. at 58.)

      As set forth above, the questioning intensified, with Detective Fick

stating, “if we find out someone lied, they’re fucked,” and Detective Santoro

telling Rigg that, “It’s bullshit that you don’t know.”    Detective Santoro

directed Rigg to look at the photographs of J.F.’s bruised and battered body

and “when we come back I don’t want to hear that we don’t know, that I

have no idea, that’s craziness, that’s insanity.” Detective Fick asked Rigg,

“Want us to bring you another water back in?”       No reasonable person in

these circumstances would feel free to get up and leave, notwithstanding the

“Notification of Non-Arrest” form that Rigg signed at 10:15 a.m., two hours

earlier.

      In addition, the detectives’ questioning was clearly designed to elicit

an incriminating response. Despite Rigg’s denials, they repeatedly told him

that they did not believe his story, that he knew what really happened, and

that if he did not tell them, he “will burn.” Detective Santoro suggested that




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perhaps Rigg had intentionally tried to kill J.F.           This was a custodial

interrogation and Miranda warnings were required.

      Rigg’s confession was not voluntary, but was the result of hours of

intense police interrogation, including the use of threats and psychological

coercion.    Detective Santoro warned Rigg that, “we talk to liars and

murderers every day who blow smoke up my ass and spend life in prison.”

Detective Santoro told Rigg, “you need to start running your mouth because

if she’s saying you’re a killer, then I guess we’ll believe her [(J.F.’s

mother)].”     They repeatedly told Rigg that unless he told them what

happened, J.F. could die. The detectives suggested that the purpose of the

“interview” was not to assign blame, but simply to discover the cause of

J.F.’s injuries so that information could be passed along to J.F.’s doctors.

      In addition, Rigg had a verbal scale IQ score of 79, which is borderline

intellectually disabled. (Notes of testimony, 6/29/15 at 32-33.) A verbal IQ

of 79 is in the 8th percentile. (Id. at 29.) Rigg was classified as learning

disabled and given an Individual Education Plan.          (Id. at 7.)     Low IQ is a

relevant    factor   in   determining    the     voluntariness   of   a   confession.

Commonwealth v. Purvis, 326 A.2d 369 (Pa. 1974). Edward Glassic, Jr.,

the Exeter Township School District certified school psychologist, testified

regarding Rigg’s disability:

             So if Cody is being interrogated and he comes
             voluntarily into the police department and they start
             asking him questions. Pretend there is an officer at
             the door. There is an officer over there and an


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           officer sitting right in front of him. And it would be
           very difficult. And let’s say the interrogation goes on
           for two hours. Gets very tense. Cursing, yelling,
           screaming. Things like that. Accusations. Well, if
           you look at Cody’s records, you will find out that he
           is sociable. Polite. He can navigate pretty well in
           the social world. So he is not going to -- he may
           have respect for authority. So he may not leave that
           room. It may not dawn on him that everything that
           he says can and probably will be held against him.
           He might not know the implications of that. It might
           not ever dawn on him that he can get out of that
           room when he is feeling the heat. Get out of dodge
           and go talk to his parents or seek additional help.
           That may never occur to him. Especially under
           stressful circumstances.

Notes of testimony, 6/29/15 at 31.

     For these reasons, under the totality of the circumstances, we

determine that the trial court did not err in finding that the questioning by

police evolved into a custodial interrogation that was likely or expected to

elicit a confession; and, therefore, Miranda warnings were required.

Certainly, once it became clear that Rigg’s version of events was not

consistent with other information and he was the primary focus of the

investigation, Miranda warnings were required before police could escalate

the interrogation by using increasingly aggressive and manipulative tactics.

During the second break in questioning, when Rigg was essentially told to

stay in the interview room and examine J.F.’s photographs and warned that,

“when we come back I don’t want to hear that we don’t know, that I have no

idea,” a person in Rigg’s situation would reasonably believe that his freedom

of movement was being restricted by the interrogation.      At that point the


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interrogation became the functional equivalent of an arrest. We do not find

Rigg’s execution of the “Notification of Non-Arrest” form to be dispositive;

rather, it is one factor to be considered. Furthermore, Rigg’s confession was

not the product of a free and unconstrained choice, especially considering his

low verbal scale IQ of 79. As such, the trial court did not err in suppressing

Rigg’s statements to police.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/9/2017




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