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                              2018 PA Super 124

  IN THE INTEREST OF: N.B., A             :    IN THE SUPERIOR COURT OF
  MINOR                                   :         PENNSYLVANIA
                                          :
                                          :
  APPEAL OF: COMMONWEALTH OF              :
  PENNSYLVANIA                            :
                                          :
                                          :
                                          :    No. 527 WDA 2016

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


BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., SHOGAN, J.,
        LAZARUS, J., OLSON, J., OTT, J., STABILE, J., and DUBOW, J.

DISSENTING OPINION BY LAZARUS, J.:                       FILED MAY 10, 2018

      I respectfully dissent because I do not believe the record supports the

Majority’s determination that Appellee was incapable of attaching meaningful

significance to his Miranda warnings.         Furthermore, I disagree with the

Majority’s determination that Mother, in light of her directive that Appellee tell

the truth to law enforcement, was not an “interested adult.” Lastly, I disagree

that said directive constituted state action or was dispositive in determining

whether Appellee’s Miranda waiver was voluntary.

      With regard to a juvenile waiving his Miranda rights, I preliminarily

note, “[r]egardless of whether a waiver of Miranda is voluntary, the

Commonwealth must prove by a preponderance of the evidence that the

waiver is also knowing and intelligent.” In re V.C., 66 A.3d 341, 351 (Pa.

Super. 2013), quoting Commonwealth v. Knox, 50 A.3d 732, 746-47 (Pa.
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Super. 2012) (emphasis in original). For a juvenile to waive the effectuation

of the rights contained in a Miranda warning, 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.           Id.

Additionally, a juvenile must waive the right with a full awareness both of the

nature of the right he abandons and the consequences of the decision to

abandon it. Id. “Only if the totality of the circumstances surrounding the

interrogation reveals both an un-coerced choice and the requisite level of

comprehension may a court properly conclude that a juvenile has waived his

Miranda rights.” Id., quoting Knox, 50 A.3d at 746-47.

      Instantly, my review of the record and subsequent application of the

totality of the circumstances test supports the following determinations: (1)

Mother, at the time of Appellee’s interrogation, was an “interested adult” with

Appellee’s interests and welfare at heart; (2) the Commonwealth established

its burden of showing Appellee voluntarily, knowingly and intelligently waived

his Miranda rights; and (3) Mother’s directive that Appellee tell the truth to

law enforcement does not constitute state action implicating Miranda.

      First, the totality of circumstances test, as it relates to a valid Miranda

waiver for a juvenile, requires us to consider, among other factors, Appellee’s

“youth, experience, comprehension, and the presence or absence of an

interested adult.”   In re N.M., 141 A.3d 539, 544 (Pa. Super. 2016)




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(emphasis added).1 “An interested adult has been defined by our Supreme

Court as ‘one who is genuinely interested in the welfare of the accused juvenile

. . . and who has been informed and is aware of those [F]ifth and [S]ixth

[A]mendment rights guaranteed to the juvenile.’”          Commonwealth v.

Satchell, 452 A.2d 768, 770 (Pa. Super. 1982). A parent, for purposes of

waiving a juvenile’s Miranda rights, may act as an interested adult even

where the parent is upset and/or distressed at the prospect that his or her

child participated in a serious crime. See In re V.C., 66 A.3d 341, 352 (Pa.

Super. 2013).

       Here, Mother was present for the reading of Appellee’s Miranda rights

and preliminary questioning prior to Appellee’s approximately ten-to-twenty-

minute one-on-one interview with Lieutenant Caskey.          During Appellee’s

suppression hearing, Mother testified as follows:

       COMMONWEALTH: Okay. Do you recall whether or not you were
       read the Miranda [w]arnings with you and both boys present?

       MOTHER: Yes, we were.

       Q: At some point, were you asked to step out of the office?

       A: Yes.

       Q: In other words, did Lieutenant Caskey ask to speak to the boys
       individually?
____________________________________________


1 We acknowledge, however, that “the per se requirement of the presence of
an interested adult during a police interview of a juvenile is no longer
required.” Knox, 50 A.3d at 746-47 (citation omitted). The presence of an
interested adult during an interview is simply one factor in determining the
voluntariness of a juvenile’s waiver of his Miranda rights. Id.

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      A: Yes.

      Q: Were you okay with that in stepping out of the office. Were
      you agreeable with that?

      A: Yes.

      Q: Did you understand that you had a right to be in there if you
      wanted to? Was that explained to you by Lieutenant Caskey?

      A: Yes.

      Q: And do you recall approximately how long . . . the boys spoke
      with Lieutenant Caskey?

      A: Ten, fifteen minutes.

      Q: Okay. And where were you at [sic] when . . . they were being
      questioned just outside of that door?

      A: Just outside the office.

      Q: And just so we[] [are] clear, was that door ever locked or was
      it open[?]

      A: It was closed[.]

      Q: But it was[] [not] locked to your knowledge?

      A: No.

N.T. Suppression Hearing, 2/17/16, at 85-86 (emphasis added).

      As the foregoing exchange indicates, Mother understood Appellee’s

Miranda rights and her right to be present during Appellee’s interview.

Satchell, supra. Additionally, Mother’s decision to report Appellee’s behavior

to school officials and law enforcement, coupled with her directive that




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Appellee tell the truth, is as indicative of concern as it is of disinterest. 2   In

re V.C., supra; Cf. Commonwealth v. Laudenberger, 715 A2d 1156, 1159

(Pa. Super. 1998) (juvenile validly waived his Miranda rights, even if mother

who met with juvenile prior to waiver was angry with juvenile and only met

with juvenile for a few minutes; fact that mother was angry was as indicative

of concern as it was of disinterest).

       In my opinion, the totality of the circumstances weighs in favor of finding

that Mother was an “interested adult.”           The Majority’s conclusion does not

comport with relevant case law defining who is an “interested adult” for

purposes of juvenile interrogations. There is no requirement, as the Majority
____________________________________________


2 At Appellee’s suppression hearing, counsel argued that Mother could not be
an interested adult because she was the reporting source of Appellee’s alleged
crimes. I disagree.

One of the stated goals of the Juvenile Act is to provide for the care,
protection, and wholesome mental development of children. In re J.B., 39
A.3d 421, 426-27 (Pa. Super. 2012). Additionally, the purpose of juvenile
delinquency proceedings is to seek treatment, reformation and rehabilitation,
and not to punish. Id. Upon learning that a “sexual incident” occurred
between Appellee and the alleged victim, Mother contacted school officials
“seek[ing] some kind of guidance” regarding how to handle Appellee’s
behavior. N.T. Suppression Hearing, 2/17/16, at 10.

In reporting Appellee’s behavior to his school, Mother was simply
contemplating the best interests and welfare of her son. Satchell, supra; In
re V.C., supra. Her intent was clearly distinct from that of a reporting parent
or familial adult who was the victim of a juvenile’s actions. Moreover, Mother
“didn’t know the details” of Appellee’s alleged actions at the time she reported
his behavior to his school and she did not provide a statement to police, and
thus, did not, or could not, inculpate Appellee to the police. N.T. Suppression
Hearing, 2/17/16, at 9. The record clearly indicates that Mother’s intent was
to explore the means by which she could help Appellee avoid similar conduct
in the future, which draws parallels with the goals of the Juvenile Act.

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implies, that an interested adult vigorously persuade a juvenile to exercise the

protections afforded by the Fifth and Sixth Amendments.

       Second, I believe that the Commonwealth met its burden of establishing

that Appellee knowingly, voluntarily and intelligently waived his Miranda

rights, even in light of his alleged intellectual challenges.

       “[I]t is the Commonwealth’s burden to establish whether a defendant

knowingly and voluntarily waived his Miranda rights.” Commonwealth v.

Cohen, 53 A3d 882, 885-86 (Pa. Super. 2012) (brackets and citations

omitted). “In order to do so, the Commonwealth must demonstrate that the

proper    warnings     were    given,    and   that   the   accused   manifested   an

understanding of these warnings.” Id. at 886.

       Appellee’s interview took place at a police station inside of an office.

Lieutenant Caskey, who was wearing a police uniform, maintained a rational,

calm demeanor during the duration of the interview; he did not yell at or

threaten Appellee. Trial Court Opinion, 3/14/16, at 2-3. Prior to Appellee’s

interview, Lieutenant Caskey read Miranda warnings to him, his brother and

Mother; all three verbally assented to answering Lieutenant Caskey’s

questions.     Lieutenant Caskey explained to Mother, in the presence of

Appellee, her right to be present during the interview, but that he preferred

to interview Appellee alone.3 Lieutenant Caskey also informed Mother that

____________________________________________


3 Lieutenant Caskey indicated that, given the nature of the allegations, he
“believed that [Appellee] would be more forthcoming without . . . the



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the interview could result in the Commonwealth bringing charges against

Appellee. Mother had many opportunities to confer with Appellee before his

one-on-one interview with Lieutenant Caskey, and Lieutenant Caskey did not

bar her from returning to the office at any time. Lieutenant Caskey did not

lock the office door.      Appellee, at no point during his individual interview,

asked to end the interview or to confer with his Mother or an attorney.

       Additionally, there was no indication from Appellee or Mother that he

was not aware of his surroundings or that he did not understand what was

occurring.    Appellee, who was fourteen years of age at the time of the

interview, had a normal physical appearance and was responsive to Lieutenant

Caskey during the interview. Appellee did not appear to be under the influence

of any substance that would alter his responses or otherwise inhibit his

understanding of the situation. Furthermore, Mother never raised a concern

regarding Appellee’s alleged intellectual challenges and/or developmental

delay.4
____________________________________________


embarrassment of the mother being in the room.” N.T. Suppression Hearing,
2/17/16, at 44. Appellee corroborated Lieutenant Caskey’s account when he
stated at his suppression hearing that he “was embarrassed to talk about [the
incident] in front of [his] mother.” Id.

4 The Majority’s repeated use of the term “developmental delay” is,
apparently, a colloquialism. Establishment of developmental delay, or Global
Developmental Delay (“GDD”), requires a formal clinical diagnosis. According
to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition
(“DSM-5”), a diagnosis of GDD “pertains to children who are unable to meet
developmental targets in a number of areas of intellectual performance but
who are not capable or too young to take part in methodical/standardized



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       At Appellee’s suppression hearing, he and Mother testified that his

intellectual challenges prevented him from knowingly and voluntarily waiving

his Miranda rights.       However, the only evidence in the record suggesting

Appellee suffers intellectual challenges is said testimony.   Appellee did not

present documentation that he had an Individualized Education Plan (“IEP”)

at school, testimony from an expert that had evaluated Appellee (e.g., school

counselor, psychiatrist, etc.), documentation evidencing a formal diagnosis of

developmental delay or other clinical diagnoses, and/or any other evidence

establishing that Appellee is intellectual challenged. In fact, when asked about

the subject at Appellee’s suppression hearing, Mother conceded that Appellee

had not been formally diagnosed with any intellectual or psychological

impairments:

       COMMONWEALTH: Does [Appellee] have any issues you are
       aware of in terms of learning, mental health issues, anything of
       that nature?

       MOTHER: Yes.

       COMMONWEALTH: [W]hat kind of issues does [Appellee] have in
       terms of learning?

       MOTHER: I would[] [not] know the exact terms for them. He[]
       [is] still in the process of evaluations and being diagnosed,
       and he’s just always – he’s always struggled. He’s basically been
       behind.

____________________________________________


evaluations of intellectual functioning. This diagnosis involves reconsideration
following a phase of time.” Global Developmental Delay DSM-5 315.8 (F88),
Helen Okoye, MD, MBA, MS-Epi, https://www.theravive.com/therapedia/glob
al-developmental-delay-dsm%C2%AD--5-315.8-(f88) (last visited 4/11/18).

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N.T. Suppression Hearing, 2/17/16, at 20 (emphasis added). Instantly, the

only evidence of record that Appellee suffers intellectual challenges that

render him incapable of understanding his Miranda rights is his and Mother’s

testimony.

      Assuming Appellee is in fact “intellectually challenged,” the Majority

takes the position, which is unsupported by the record, that such challenges

are determinative of an unknowing waiver of his Miranda rights.            The

majority’s determination is inconsistent with our Supreme Court’s refusal to

adopt a per se rule of inability to waive constitutional rights based solely on

mental and physical deficiency. Commonwealth v. Johnson, 354 A.2d 886

(Pa. 1976). Specifically, the majority ignores that even a person of below

average mental ability may knowingly and intelligently waive a constitutional

right. Commonwealth v. Abrams, 278 A.2d 902, 905 (Pa. 1971). Rather,

the Majority adopts a post hoc determination that Appellee’s waiver of his

Miranda rights, relinquished in the presence of an interested adult, was

somehow unknowing. I disagree.

      Lastly, the trial court stated that the factor that weighed most heavily

in determining that suppression was necessary was Appellee’s “own testimony

that he believed he was forced to be there by his mother and that he was

directed to confess.” Trial Court Opinion, 6/1/16, at 4-5. In fact, the trial

court “found this factor to be the one that skewed the totality of the

circumstances in favor of suppression.”      However, the fact that Mother




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encouraged Appellee to confess is of no consequence, as Mother’s plea that

Appellee tell the truth did not constitute state action.

      Under relatively rare circumstances, the actions of private citizens may

be impliedly ratified with the authority of the state. See Commonwealth v.

Eshelman, 383 A.2d 838 (Pa. 1978). Even so, the mere use by police and/or

prosecutors of the results of an individual’s actions does not per se serve to

“ratify” those actions as conduct of the state. The test by which we determine

whether an action was “under the color” of state law is well settled:

      First, the deprivation must be caused by the exercise of some right
      or privilege created by the state[.] . . . Second, the party charged
      with deprivation must be a person who may fairly be said to be a
      state actor. This may be because . . . his conduct is otherwise
      chargeable to the state.

Commonwealth v. Corley, 491 A.2d 829, 832 (Pa. 1985), quoting Lugar v.

Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982). A critical factor in

determining whether an individual is acting under the color of state law is

whether “in light of all the circumstances of the case, [the private individual]

must be regarded as having acted as an ‘instrument’ or agent of the state.”

Corley, 491 A.2d at 832, quoting Coolidge v. New Hampshire, 403 U.S.

443, 487 (1971).

      Mother, acting as an interested adult, sought to counsel her son in the

utility of honesty and justice. There is no indication in the record that her

decision to do so was compelled, coopted or ratified by a state actor (e.g.,

Lieutenant Caskey). Accordingly, where, as here, Mother simply encouraged

Appellee to “tell the truth,” we may not implicate the constitutional protections

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that ordinarily attach when an individual is interrogated by a law enforcement

officer or other state actor.5       In fact, Mother stated that it was only after

Appellee’s interview with Lieutenant Caskey and the subsequent filing of

charges that she reconsidered her decision to allow Appellee to cooperate with

the authorities.     Mother’s hindsight in no way diminishes that she initially

sought to cooperate with authorities in order to further the interests and

welfare of Appellee.

       In light of the foregoing, I would reverse the order suppressing

Appellee’s statement.

       President Judge Gantman, President Judge Emeritus Bender, and Judge

Shogan join this Dissenting Opinion.




____________________________________________


5 Even assuming Mother were a state actor, the record does not support a
finding that her directive that Appellee “tell the truth” amounts to intimidation,
coercion or deception that would invalidate the voluntariness of Appellee’s
confession. Knox, supra. Simply encouraging a juvenile to tell the truth
comports with the basic purpose of conducting an interview, and truthfulness
is a fundamental tenet of the juvenile justice system. A full understanding of
the underlying facts of a particular case is integral to treating and
rehabilitating a juvenile. In re J.B., supra.

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