J   -A11004-19



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: T.T.C., A         :   IN THE SUPERIOR COURT OF
    MINOR                                           PENNSYLVANIA



                                          :   No. 950 MDA 2018

            Appeal from the Dispositional Order Entered May 29, 2018
      In the Court of Common Pleas of Dauphin County Juvenile Division at
                         No(s): CP-22-JV-0000109-2018
BEFORE:     BOWES, J., OLSON, J., and STABILE, J.

MEMORANDUM BY BOWES, J.:                            FILED AUGUST 01, 2019

        T.T.C. appeals from the dispositional order entered after the juvenile

court adjudicated him delinquent for theft by receiving stolen property and

providing false identification to the police. Specifically, Appellant challenges

the sufficiency of the evidence to sustain the providing -false -information

adjudication, as well as the denial of his suppression motion. We vacate the

dispositional order, reverse the adjudication for false identification, reverse

the suppression order, and remand for further proceedings consistent with

this memorandum.

        The factual history underlying the case is as follows. At approximately

7:00 p.m. on February 11, 2018, Jerry McDowell reported his vehicle stolen.

At around 12:30 a.m., Sergeant Jason Reber encountered             a   car at an

intersection, ran the plate, and discovered that it had been reported stolen.

Sergeant Reber followed the vehicle and contacted other police units to
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conduct    a   stop.   Ultimately,       a    high-speed chase ensued, ending when the

stolen vehicle crashed and its occupants fled.                  Appellant was taken into

custody when he was found            a       block away from the scene of the crash. N.T.

Adjudication, 5/29/18, at 4, 6-10. Appellant was asked to identify himself,

and he initially gave an incorrect last name to the police.                N.T. Suppression,

3/13/18, at 10.        Police officers eventually were able to contact Appellant's

mother, who met them at the central booking center. Id. at 11-12. Appellant

was then taken to the police station to be interviewed.             Id. at         12.

         At approximately 3:15 a.m., after Appellant was given                     a   short time to

speak with his mother, Officer Reber asked Appellant if he wished to speak to

him. Appellant said unequivocally that he did not want to talk to Officer Reber.

Id. at   13. Officer Reber then read Appellant his            Miranda' rights. Id. at            13.

Officer Reber proceeded to inform Appellant that the other individuals who

were in the stolen car were part of other investigations and that it was in

Appellant's best interests to cooperate. Id. at 14 ("[I]t's in your best interests

to cooperate so that way if you are not part of this group,            .   .   .   you should tell

me that you're not part of this group."). Although acknowledging that he was

not permitted to question Appellant further given the invocation of his right to

remain silent, Officer Reber noted that Appellant's mother could ask him

questions.     Id. Appellant's mother told Appellant to talk. Id. At some point,



1   Miranda v. Arizona, 384 U.S. 436 (1966).
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Officer Reber stated that he could not make promises, but that Appellant's

cooperation would be viewed favorably in the eyes of the court and the district

attorney's office, and that the statements would benefit Appellant. Id. at 20.

        At 3:21 a.m., approximately six minutes after invoking his right to

remain silent, Appellant signed              a   Miranda waiver     in   the presence of his

mother and sister. Id. at 14-16. Appellant then gave Officer Reber details of

how he had been picked up between 5:30 and 6:00 p.m. after contacting an

acquaintance for       a    ride home, but they ended up going to            a   party instead.

N.T. Adjudication,         5/29/18, at 13-14. They left the party when            a   fight broke

out, and had     a   conversation about the stolen nature of the vehicle when they

became nervous upon seeing Officer Reber's vehicle behind them.                        Id. at   14-

15.

        The Commonwealth filed           a   delinquency petition on February 20, 2018,

alleging that Appellant intentionally received stolen property and furnished

law enforcement authorities with false identification.                     Appellant filed       a


suppression motion alleging that his statement to police after he invoked his

Miranda rights was unconstitutionally obtained. The juvenile court denied
the suppression motion after         a   hearing. At    a   subsequent hearing, Appellant

was adjudicated delinquent on the charges of theft by receiving stolen

property and false identification to law enforcement officers.                    The juvenile

court entered its disposition order, Appellant filed            a   timely notice of appeal,

and both Appellant and the juvenile court complied with Pa.R.A.P. 1925.

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           Appellant presents two issues on appeal:

     I.       Did  not the court err in denying [Appellant's] motion to
              suppress his statement to the police when he expressly invoked
              his right to remain silent before making the statement and
              when the police failed to scrupulously honor the right?

     II.      Was not the evidence insufficient to sustain a conviction for the
              offense of false identification to law enforcement authorities?

Appellant's brief at     5   (unnecessary capitalization omitted).

           We first consider Appellant's challenge to the sufficiency of the evidence

to support his adjudication for false identification. Our standard of review is

as follows.

           When considering     challenge to the sufficiency of the evidence
                                a
           following an adjudication of delinquency, we must review the
           entire record and view the evidence in the light most favorable to
           the Commonwealth.

           In determining whether the Commonwealth presented sufficient
           evidence to meet its burden of proof, the test to be applied is
           whether, viewing the evidence in the light most favorable to the
           Commonwealth and drawing all reasonable inferences therefrom,
           there is sufficient evidence to find every element of the crime
           charged. The Commonwealth may sustain its burden of proving
           every element of the crime beyond a reasonable doubt by wholly
           circumstantial evidence.

In the Interest of .7.G.,           145 A.3d 1179, 1188 (Pa.Super. 2016) (citations

omitted).

           One commits providing false identification to police officers if he

"furnishes law enforcement authorities with false information about his

identity after being informed by         a   law enforcement officer who is in uniform

or who has identified himself as         a   law enforcement officer that the person is

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the subject of an official investigation of a violation of law." 18 Pa.C.S.   §   4914.

That   a   reasonable person would know, based upon the circumstances, that he

or she was the subject of an official investigation is not sufficient to establish

a   violation of the statute. Rather, "the Commonwealth must prove that the

individual was told by police that he or she was under investigation, and that

must occur prior to the individual's presentment of false identity information."

Commonwealth v. Kitchen,            181 A.3d 337, 345 (Pa.Super. 2018) (en banc)

(emphasis in original).

           Based upon   Kitchen, the juvenile court conceded that the evidence was
insufficient to sustain Appellant's adjudication for false identification. Juvenile

Court Opinion, 12/21/18, at unnumbered 6-7. We agree. The Commonwealth

offered no evidence at the adjudicatory hearing to establish that Appellant

was    told   by police that he was the subject of an official investigation of       a


violation of law before Appellant gave     a   false name.

        We are not persuaded by the Commonwealth's attempts to distinguish

Kitchen.2 The Commonwealth contends that "the defendant            in   Kitchen was



2  In making its argument, the Commonwealth cites and discusses an
unpublished, non-precedential decision of this Court. See Commonwealth's
brief at 7-8. By so doing, the Commonwealth violated the then -applicable
Superior Court operating procedures which prohibited citation to an
unpublished memorandum decision. See Superior Court I.O.P. § 65.37
(effective until April 16, 2019). While the rule has been amended to allow
citation to non-precedential memorandum decisions filed after May 1, 2019,
the memorandum cited by the Commonwealth was filed in December 2018.
Accordingly, we shall not consider it.
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approached and asked for his identification by law enforcement officers, but

was     unaware at that        point why the           police were   questioning     him."

Commonwealth's brief at 8.             By contrast, the Commonwealth               argues,

Appellant was fleeing from the scene of          a   crash after being pursued by police

when he was taken into custody, and taken to the booking station before

giving false identification.   Id. at 8-9.   The Commonwealth misstates the facts

of both cases.

        In Kitchen,       the defendant,     a       woman, was the subject of an

investigatory detention at the time she gave false identification to            a   police

officer who had effectuated     a   traffic stop by activating his vehicle's lights and

siren. See Kitchen, supra at 338. Hence, she was not merely "approached"

and asked for identification.

        In the instant case, the Commonwealth's evidence established that

Officer Reber heard via radio transmission that one of the occupants of the

stolen vehicle had been taken into custody near the scene of the crash. N.T.

Adjudication, 5/29/18, at 9-10. Officer Reber was the only witness presented

by the       Commonwealth concerning Appellant's false identification, and his

testimony was as follows:

        Q.     Do you know who the individual was             that was taken into
               custody?

        A.     Yes. That was [Appellant].

        Q.     And did [Appellant] comply when he was first --



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        A.   He complied when he was taken into custody.        He did not
             provide the right identification.

        Q.   Was he asked his identification?

        A.   Yes.

        Q.   At this point in time you said when he was being taken into
             custody was he just not speaking, was he handcuffed, what
             was the circumstances?

        A.   He wasn't speaking. We just wanted to get his identification
             and get his parents['] information so that way we can start
             the process with juveniles, getting ahold of the parent and
             then, you know, we have to allow them quiet time and
             things of that nature. So he wasn't spoken to other than
             to try to get his identity.
        Q.   Was he restrained at this time in any way?

        A.   Yeah, he was handcuffed at this time, yes.

        Q.   And you said he didn't give the correct -- he complied but
             didn't give the correct -- what information did he provide?

        A.   He provided the name of [T.J.] and a date of birth [in May
             2003].

        Q.   What   is his   actual I.D.?

        A.   His actual I.D. is [T.C.C.] and the date of birth [is the same
             as the one he provided].

        Q.   And when he gave this information it was to uniformed
             officers?

        A.   Yes.

        Q.   And what happened after he was handcuffed and gave this
             information?

        A.   What was I doing? At this point I told my officers to just
             observe him while I continue to base to do the rest of the

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            investigation in regards to contacting a tow truck for an
            impound. Harrisburg City was there so they were doing the
            crash investigation.     I was essentially organizing and
            handling the investigation. So I didn't directly talk to him.

      Q.    Did you eventually or ever get to      talk to [Appellant]?

      A.    Yes.      So Ihad [two patrolmen] and they transported
            [Appellant] down to the central booking center. We were
            able to get in touch with [Appellant's] mom     She met
                                                              .   .   .   .


            us down at the booking center.     .   .   .




Id. at 10-12 (emphasis added).
      That is   a   very different sequence of events than the Commonwealth

described in its brief. Appellant was handcuffed by police, but "wasn't spoken

to other than to try to get his identity" at the time he gave         a   false name. This

happened near the scene of the crash, not at central booking. Indeed, the

authorities apparently obtained Appellant's correct information before he got

to central booking, as Appellant's mother met them there.                         As such, the

Commonwealth failed to establish that, before he gave false identification,

Appellant had been expressly told by someone identified as                    a   police officer

that he was the subject of an official investigation.        We therefore reverse

Appellant's delinquency adjudication as to the 18 Pa.C.S.                         §   4914 false

identification count.

     We next consider Appellant's suppression claim mindful of the following.

"When reviewing the propriety of     a   suppression order, we are required to

determine whether the record supports the factual findings of the suppression

court, and we are bound by those facts and may reverse only if the legal

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conclusions drawn therefrom are in error."          In the Interest of N.B.,    187 A.3d

941, 945 (Pa.Super. 2018) (en banc) (internal quotation marks omitted). As

the     Commonwealth           prevailed   below,   we   "may    consider      only     the

Commonwealth's evidence and so much of the evidence for the defense as

remains uncontradicted when read in the context of the record as               a   whole."

In re B.T.,    82 A.3d 431, 435 (Pa.Super. 2013).         However, we are not bound

by the juvenile court's legal conclusions, which we review de novo.                   N.B.,

supra at 945.
        Appellant's suppression claim alleges violation of his Miranda rights.

The following legal principles govern.

        To   safeguard an uncounseled individual's Fifth Amendment
        privilege against self-incrimination, suspects subject to custodial
        interrogation by law enforcement officers must be warned that
        they have the right to remain silent, that anything they say may
        be used against them in court, and that they are entitled to the
        presence of an attorney. Juveniles, as well as adults, are entitled
        to be apprised of their constitutional rights pursuant to Miranda.

B.T., supra 436 (cleaned up).

        Once   a   person asserts his or her election to remain silent, the right must

be "scrupulously honored" by the authorities.          Michigan v. Mosley, 423         U.S.

96, 104 (1975).        "If   an individual indicates in any manner, at any time prior

to or during questioning, that he wishes to remain silent, the interrogation

must cease, and any statement taken after the person invokes his privilege

cannot be other than the product of compulsion, subtle or otherwise."



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Commonwealth v. Frein, 206 A.3d 1049, 1064                 (Pa. 2019) (cleaned up).

Nonetheless,

        Subsequent police questioning after the invocation of a
        defendant's right to remain silent is not a per se violation of that
        right. Rather, the police may attempt to question a defendant a
        second time after the defendant's initial invocation of her right to
        remain silent in order to determine if the defendant wishes to
        speak further to the police voluntarily, where the police
        "scrupulously honor" the defendant's initial invocation of the right
        to remain silent.    The question of whether the police have
        "scrupulously honored" the defendant's right to remain silent
        focuses on the following considerations: (1) whether the
        defendant was advised of her Miranda rights before both
        interrogations; (2) whether the officer conducting the first
        interrogation immediately ceased the questioning when the
        defendant expressed his desire to remain silent; and (3) whether
        the second interrogation occurred after a significant time lapse,
        and whether it was conducted in another location by another
        officer.

Commonwealth v. Russell, 938 A.2d 1082, 1090-91 (Pa.Super. 2007)
(cleaned up).

        "If   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." B.T., supra 436 (cleaned up).

In determining whether      a   juvenile's waiver was valid, we analyze the totality

of the circumstances, including,

        the juvenile's youth, experience, comprehension, and the
        presence or absence of an interested adult. Other factors to
        consider in this context also include: (1) the duration and means
        of the interrogation; (2) the juvenile's physical and psychological
        state; (3) the conditions attendant to the detention; (4) the

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        attitude of the interrogator; and (5) any and all other factors that
        could drain the juvenile's ability to withstand suggestion and
        coercion.

N.B., supra at 945 (cleaned up).

        In the present case, there   is no   dispute that Appellant invoked his right

to remain silent, and that he made            a   statement during   a   later custodial

interrogation.      The question is whether his invocation of that right was

scrupulously honored such that his subsequent waiver was knowing,

intelligent, and voluntary.

        Officer Reber's testimony about the events between Appellant's

invocation of his right to remain silent and his waiver of that right      is as   follows,

with grammatical errors intact.

        Q.    And what happened [at 3:15 a.m.] after the quiet time
              [Appellant was given] with his Mother?

        A.    I had entered the room once I was told they were finished
              with quiet time.     I did enter the room, and I asked
              [Appellant] if he wanted to speak with me. He said that he
              did not. So I said okay. I said, well, I'm going to read you
              your Miranda rights. So I read him his Miranda rights,
              and he advised that he understood them, and then I
              explained that although I cannot ask you any questions, that
              I'm going to make some statements to you so that you
              understand what's going on.

                     So I made some    statements basically saying that, you
              know, this is a bigger part of an investigation. There's
              multiple investigations going on; that the individuals that
              you were with in that car are part of several other
              investigations, and it's in your best interest to cooperate so
              that way if you are not part of this group, that, you know,
              you should tell me that you're not part of this group.


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                   So I was basically giving him general statements.          I
             did not ask him any questions or violate his rights.

        Q.   And what happened?

        A.   Well, mom was present and I said to mom, I said, well, you
             know, if mom wants to ask you questions she can. I said I
             can't ask you questions. I said that several times. And
             mom said to him, well, I want you to talk. Mom was more
             the one that convinced him to talk than me. I didn't.

                   Then after [Appellant] decided, well, he'll speak with
             me, then that's when I got the actual form, waiver form and
             read the Miranda rights a second time verbatim from the
             Miranda form, and then he signed the form voluntarily that
             was in front of mom   .   .   .   .




        Q.   Mom was convincing him to talk.            What kind of things was
             she saying?

        A.   I don't know her exact verbatim, but, you know, she said,
             you know, I want you to talk. I want you to tell the police
             what happened, tell them that, you know, because
             obviously she was concerned that if he's part of -- if he was
             just this one time around this group of individuals, she
             doesn't want him to be lumped in with the rest of the group.
             So, I mean, obviously as a concerned parent, I think that's
             why she wanted him to speak with me to make sure that he
             isn't implemented in some other things.



        Q.   And during any time during your interview or prior to the
             waiver form, did you make any promises?

        A.   I didn't make any promises. All I said was that I -- actually
             specifically I said that I cannot make any promises. I said
             although your cooperation is going to be seen good in the
             eyes of the Court and in the eyes of the ADA, so, you know,
             making these statements are going to be benefitting you in
             regards to not only getting yourself -- or distancing yourself
             from the individuals that were in the car but it would also


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               look favorably in the eyes of the Court.       That's all I said
               about that.

N.T. Suppression,       3/13/18, at 13-15, 20.

        The juvenile court opined that "upon review of the circumstances as

they existed after [Appellant's] initial request to remain silent, wherein his

mother then encouraged him to tell the police what he knew, it           is   apparent

that [Appellant] changed his mind and was not enticed to do        so by the   police."

Juvenile Court Opinion, 12/21/18, at unnumbered 6.               The juvenile court,

noting that credibility determinations are exclusively within its domain, based

its determination upon Officer Reber's testimony         "that it was at his mother's
urging that [Appellant] changed his mind."         Id.    The Commonwealth in its

brief relies solely upon the trial court's acceptance of that testimony. See

Commonwealth's brief at 6.

        While it is true that this Court accepts the trial court's credibility

determinations, the fact that Officer Reber honestly held the opinion to which

he    testified    concerning   Appellant's internal and      unexpressed      thought

processes does not require us to accept it without examination.           Rather, as

outlined above, our duty        is   to examine the totality of the circumstances

demonstrated by the evidence presented by the Commonwealth at the

suppression hearing and to determine whether Officer Reber scrupulously

honored Appellant's right to remain silent and Appellant made            a    knowing,

intelligent,      and   voluntary decision to waive that right.           See also


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Commonwealth v. Templin, 795 A.2d 959, 961                          (Pa.   2002)   ("The

determination of whether      a   confession is voluntary is   a   conclusion of law and,

as such, is subject to plenary review.").

        Our review of the pertinent law under the totality of the circumstances

apparent from the record leads us to conclude that Appellant's waiver of his

Miranda rights was not voluntary. We first note the general circumstances
not discussed by the juvenile court or the Commonwealth. At the time of the

interrogation, Appellant was fourteen years old. The Commonwealth did not

offer evidence concerning           Appellant's   comprehension abilities or         any

experience Appellant had with law enforcement. Appellant had been in police

custody for approximately two hours before the interrogation began, and was

in a   transport belt and shackles. Id. at 12-13. It was after 3:00 a.m.           in the

morning.

        Appellant's mother was present, but was herself ignorant of the process

based upon her own lack of experience.            See N.T. Suppression, 3/13/18, at

31-32 ("I've never been in trouble.          So, therefore, I don't know how that

works. I['ve] never been interrogated or anything like that."). Officer Reber

had informed Appellant's mother of "the circumstances of what was going on,

and also the greater bigger picture of the magnitude of what's behind this

investigation" before Appellant was transported to the police station for

questioning.     Id. at   11. Officer Reber indicated that Appellant's mother was

"cooperative" and agreed to speak to Appellant. Id. Yet, after Appellant spent

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fifteen minutes alone with his mother, Appellant indicated that he did not wish

to speak to Officer Reber.      Id. at   13.

         Despite his refusal to waive his Miranda rights, Officer Reber did not

terminate his conversation with Appellant. Officer Reber purported to follow

the letter of the law in not posing "questions" about the investigation to

Appellant, but instead made declaratory statements advising Appellant that it

was in his "best interest to cooperate" and explaining why he "should" talk.

Id. at    14.   Although he admitted that he could make no promises, Officer

Reber informed Appellant that changing his mind about remaining silent would

benefit him, as it would be viewed favorably by the district attorney's office

and the court.     Id. at   20. Officer Reber then encouraged Appellant's mother

to speak to Appellant, but did not leave the room or otherwise remove himself

from the conversation. Id. at 14. Appellant henceforth agreed to talk. The

entire, uninterrupted interaction-including the first reading of Miranda

warnings, Appellant's invocation of the right to remain silent, the advising

done by Officer Reber and Appellant's mother at Officer Reber's request,

Appellant's agreement to speak, and Appellant's review and signing of            a


Miranda waiver form-took six minutes.

         From the totality of the above -described circumstances, including the

fact that Appellant's private interaction with his mother resulted in his deciding

to remain silent, and he decided to waive that right only after Officer Reber

advised him that he should, we conclude that the trial court erred in holding

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that Officer Reber scrupulously honored Appellant's invocation of his Miranda

rights and that his resultant waiver of those rights was knowing, intelligent,

and voluntary.     Compare Commonwealth v. Frein, 206 A.3d 1049, 1070

(Pa. 2019) (holding court erred in denying motion to suppress statements

where the defendant "unambiguously invoked his right to remain silent on

multiple occasions," yet the officers continued the conversation with no

break); and Commonwealth v. Henry, 599 A.2d 1321, 1325 (Pa.Super.

1991) (holding defendant's Miranda rights were violated where defendant

asserted his right to remain silent, but later confessed, because "from the

moment [the officer] initiated the conversation with [the defendant], he was

attempting to entice the arrestee to abandon his right to remain silent")

(internal quotation marks omitted); with Commonwealth v. Harris, 972

A.2d 1196, 1205 (Pa.Super. 2009) (holding Miranda rights were scrupulously

honored where the defendant declined to speak without counsel present, then

said he wanted to think about his decision to do so, was asked twenty-five

minutes later if he had enough time to think, and confessed after indicating

he was willing to    talk without an attorney and executed     a   Miranda waiver
form).

         We further conclude that the denial of Appellant's suppression motion

was not harmless error. To establish the offense of receiving stolen property,

the Commonwealth must establish that        a   person had "possession, control or

title" of someone else's property with knowledge that it has been stolen or

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belief that it probably has been stolen.          18 Pa.C.S. § 3925.   We are not

convinced beyond        a   reasonable doubt that Appellant's statements as to his

knowledge did not contribute to the adjudication. Cf. Frein, supra at 1070-

71 (holding refusal to suppress confession was harmless error where properly

admitted and uncontradicted evidence of guilt, including evidence that the

defendant owned the murder weapon, researched the crime on the internet,

and detailed the crime in           a   notebook in his own handwriting, was so

overwhelming that the error could not have contributed to the verdict).

Accordingly, we are compelled to vacate Appellant's adjudication for receiving

stolen property, reverse the order denying Appellant's suppression motion,

and remand for    a   new adjudicatory hearing.

        Dispositional       order vacated.    Adjudication for false identification

reversed.    Adjudication for receiving stolen property vacated.       Suppression

order reversed. Case remanded for further proceedings consistent with this

memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn,
Prothonotary

Date: 8/1/2019




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