J-S32028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEISHA SHANTE MOORE                        :
                                               :
                       Appellant               :   No. 1609 MDA 2017

           Appeal from the Judgment of Sentence September 20, 2017
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0005213-2013


BEFORE:      PANELLA, J., NICHOLS, J., and PLATT, J. *

MEMORANDUM BY NICHOLS, J.:                         FILED SEPTEMBER 26, 2018

        Appellant Keisha Shante Moore appeals from the judgment of sentence

imposed after the trial court found her guilty of aggravated assault and

endangering the welfare of a child1 at a non-jury trial. Appellant claims that

she was entitled to have her statement to police suppressed based on the

totality of the circumstances, including her cognitive impairment and

intellectual disability.2 We affirm.

        The trial court summarized the factual and procedural background of

this appeal as follows:

        On July 24, 2013, at approximately 3:00 p.m. [Harrisburg Police
        Department] Det[ective] Paula Trovy responded to Harrisburg
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 2702(a)(1) and 4304(a)(1), respectively.

2   As discussed below, Appellant has an overall IQ of 63.
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        Hospital for a report of an 8 year old boy [(the child)] with burns
        on his hands. [Detective] Trovy made contact with Appellant, the
        child’s mother, and she indicated she did not cause the injuries.
        She testified that Appellant said they were spider bites, but the
        hospital indicated they were severe burns and they needed to
        send him via Life Flight to the burn center. While at the hospital,
        Appellant signed a consent to search her home to investigate what
        had happened. [Detective] Trovy described Appellant as
        understanding the forms and signed willingly. She is sure she
        explained the form to [Appellant], but could not recall whether
        she specifically asked [Appellant] if she understood it or if she
        could read it.

        [Detective] Trovy, [Detective] Iachini and [Sergeant] Woodring all
        went to her house to investigate. A CYS caseworker was also
        there. The detectives left the hospital before Appellant and arrived
        at her home before she did. There were several other people in
        the home at the time.

        While at the home, Appellant was not handcuffed or in custody.
        She was cooperative. The detectives determined they wanted to
        speak to her more and asked if she would accompany them to the
        police department. She agreed and [at approximately 4:30 p.m.,]
        they drove her there, again, no handcuffs were used. They went
        to the large . . . conference room and gave [Appellant] her
        Miranda[3] warnings. [Detective] Trovy was unable to recall with
        one hundred percent certainty that she had been the one to read
        Appellant her Miranda rights, but she is one hundred percent
        certain that the rights were given to Appellant. Appellant indicated
        she understood them. No one else from the house was taken to
        the police station that day.

        Throughout the process, Appellant’s story of [the child]’s injuries
        changed. Initially she stuck with her story about spider bites, but
        the detectives told her it was clear he had not been bitten by
        spiders as he was air lifted to a burn center. Then she said she
        dropped a cup of tea on him, then at some point she indicated she
        held his hands under hot water. [Appellant eventually admitted
        to doing so to punish her son.]

        After some time, Appellant agreed to let them record a statement
        [at approximately 7:00 p.m. Appellant’s recorded statement
        lasted approximately six minutes]. [Detective] Trovy recalled that
____________________________________________


3   Miranda v. Arizona, 384 U.S. 436 (1966).

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      Appellant appeared to understand the questions and was
      cooperative. [The questioning of Appellant lasted approximately
      two hours. Appellant was released and returned home.]

Trial Ct. Op., 11/30/17, at 1-2 (record citations omitted). On September 6,

2013, Appellant was arrested and charged with aggravated assault and

endangering the welfare of a child. At the time of her arrest, Appellant invoked

her right to silence and requested an attorney.

      On August 21, 2015, Appellant filed a motion to suppress. Appellant

asserted that “in view of the totality of these circumstances, including

[Appellant’s]   intellectual    disability,    her    susceptibility   to   coercion    and

intimidation and her impaired understanding of her Miranda rights, her

statement to the police on July 24, 2013 was not made voluntarily, knowingly

and intelligently.” Mot. to Suppress, 8/21/15, at 3-4 (unpaginated).

      On December 2, 2015, the trial court convened a suppression hearing.

The   Commonwealth       called     Detective        Trovy   to   testify   regarding   the

circumstances     of   the     interview      with    Appellant.       Additionally,    the

Commonwealth called John S. O’Brien, II, M.D., as an expert in general and

forensic psychiatry. Appellant called Neil H. Blumberg, M.D., as an expert in

general and forensic psychiatry.

      The trial court summarized the expert testimony presented at the

suppression hearing as follows:

      Dr. John O’Brien interviewed [Appellant] and reviewed her medical
      records and statement for the Commonwealth to determine
      whether she was able to knowingly, voluntarily and intelligently
      waive[] her Miranda warnings and provide a statement. He
      reviewed medical records of [the child] which indicated that

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     [Appellant] had brought him to the hospital twice in 2012 to get
     him help. First, for aggressive behavior towards other kids and
     second for threats to kill himself.

     [Dr.] O’Brien testified that [Appellant] was a proactive parent. She
     was able to assert herself when it came to the care of or concerns
     about her child or employment.

     He reviewed various materials regarding Appellant, including an
     evaluation from when she was 16 by a psychologist, a school
     evaluation from 2001 and an individual support plan from the
     Commonwealth of Pennsylvania Department of Public Welfare
     from March 2009. The reports he reviewed for Appellant were
     consistent with her having cognitive impairment and a diagnosis
     of intellectual disability.

     Per [Dr.] O’Brien, Appellant’s overall IQ is 63; however, her verbal
     IQ is 67 which is quite close to the cut off range from mild mental
     retardation. [Dr.] O’Brien explained that there are two types of
     impairments—intellectual and functional. He said she appears to
     be someone who primarily struggles with social impairment—she
     becomes angry if she thinks she is being teased or feels as if
     people look down on her. The various evaluations indicate to [Dr.]
     O’Brien that she is someone with an intellectual disability who
     functions independently and does not require support services.
     Her records indicate she has been employed but she terminated
     employment for a variety of reasons. Once because she thought
     she was underpaid and once because she though[t] people were
     making fun of her. He says this doesn’t support Dr. Blumberg’s
     assessment that she is easily influenced by others.

     [Dr.] O’Brien also reviewed Dr. Blumberg’s evaluation of
     Appellant. [Dr.] Blumberg and [Dr.] O’Brien agree on the
     intellectual disability-mild diagnosis, but disagree on whether she
     is easily influenced by others. Further, [Dr.] O’Brien indicates that
     she demonstrated an understanding of her rights to [Dr.]
     Blumberg, though not as articulately as some others might.
     Significantly, when she returned to the police station in
     September, she asserted her right to an attorney and her right to
     remain silent which indicates an understanding of her rights. [Dr.]
     O’Brien noted that her deficits remained the same but she chose
     to assert those rights during her second visit; if she wasn’t able
     to knowingly, intelligently and voluntarily waive her rights the first
     time, one would expect her to remain unable to do so the second
     time.


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     [Dr. O’Brien] testified that she demonstrated a clear ability to
     comprehend questions and provide reasonable and responsive
     answers. He found nothing about her cognitive limitations that
     interfere with her ability to communicate, to understand what’s
     being asked and to provide appropriate answers.

     During his interview of her, she was able to provide responsive
     answers. During her recitation of the events leading up to her
     arrest, Appellant alleged that she caved to police pressure, but
     never alleged that she did not understand her rights. She says she
     was never told about her right to an attorney or any other rights
     but did ask “aren't they supposed to?” [Dr.] O’Brien found this
     interesting.

     One of [the reports regarding Appellant] specifically notes that
     Appellant has lied in the past to stay out of trouble. Another
     report[] notes that she is highly independent and able to handle
     her own money.

     The [Fifth Edition of the Diagnostic Statistical Manual (DSM-V)]
     indicates that individuals with her diagnosis generally need
     support to make legal decisions (amongst other things).

     [Dr.] O’Brien did not specifically ask [Appellant] if she understood
     what each Miranda statement means. He did not have her explain
     to him the pros and cons of talking to the police. [Dr.] O’Brien felt
     that Dr. Blumberg had done a good job of questioning her
     regarding her rights and he relied on that. Based on the tests that
     [Dr.] O’Brien performed she has some short term memory
     problems and some problems with doing math. She didn’t know
     the president’s name, when asked about sports she said she liked
     basketball but then talked about football. She referenced movies
     when asked about favorite television shows.

     Dr. Neil Blumberg testified on behalf of the defense. He
     administered a number of tests for cognitive impairment - the
     clock drawing, having her repeat numbers backwards to him, try
     to create a sentence with the words “dog” “moon” and “bark.” She
     struggled with all of them. She had problems with short term
     memory. She did not know the capit[a]l of [Pennsylvania], she
     said there were 9 states in the US and that the distance from east
     to west coast was 110 miles. She wasn’t able to demonstrate
     abstract thinking—that is, when given certain sayings “people in
     glass houses shouldn’t throw stones” and “the grass is always
     greener on the other side”, she was unable to explain what they


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      meant, other than literally. She can do basic addition but not
      subtraction, multiplication or division.

      [Dr. Blumberg] tested for trauma related symptoms and
      discovered that [Appellant] did have ongoing trauma related
      symptoms. Appellant had been abused throughout her life,
      verbally, physically and sexually. Testing indicated that she is
      easily influenced by others and needs guidance from others. She
      has a family history of individuals with intellectual and academic
      limitations. Appellant has an elevated score on a test that
      measures an individual’s tendency to look to others for guidance.

      [Dr.] Blumberg testified that he did question her on Miranda
      rights. He gave her each warning and asked her what she thought
      it meant. For example, when asked what she thought the right to
      remain silent meant she said “what you did wrong.” When asked
      what the word “right” meant she said, “You have to do it” and
      when asked “silent” meant she said “quiet.” So then she said the
      right to remain silent meant “You gotta be quiet and don’t say
      nothin’.” [Dr. Blumberg testified:]

         When I asked her what “the right to have an attorney now”
         meant, she said, quote, “You don't have to talk unless you
         have a lawyer. A lawyer can help you understand your
         situation. Lawyers are for people who did something. I didn’t
         do something. I wasn’t thinking to stop and get a lawyer. It
         was like my grandmother was yelling at me.”

      [Appellant] did understand that she could get a free attorney to
      help with her case if she could not afford one.

      [Dr.] Blumberg opined that she was susceptible or vulnerable to
      being influenced by others and was not able to waive her Miranda
      rights.

Trial Ct. Op. at 3-6.

      The trial court deferred ruling on Appellant’s suppression motion to

permit the parties to submit memorandums.         Following its review of the

evidence and the memorandums, the court denied Appellant’s motion to

suppress on March 28, 2016.



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      Appellant proceeded to a non-jury trial held on August 1, 2017, at which

Detective Trovy and a nurse from Harrisburg Hospital testified. Appellant did

not testify or present evidence. The trial court found Appellant guilty.

      On September 20, 2017, the trial court sentenced Appellant to time

served with five years’ intermediate punishment, and a consecutive five years’

probation. Appellant did not file post-sentence motions, but timely appealed

on October 12, 2017.

      Appellant timely filed a Pa.R.A.P. 1925(b) statement challenging the trial

court’s suppression ruling. The trial court filed a responsive Pa.R.A.P. 1925(a)

opinion. The court suggested that Appellant was not in custody at the time

she gave her statement. In any event, the court concluded that Appellant

waived her Miranda rights “with a full awareness of both the nature of the

right being abandoned and the consequences of the decision to abandon it.”

Id. at 9-10.

      Appellant presents the following question for our review:

      Did not the [trial] court err in failing to suppress statements that
      the police obtained from [Appellant] during custodial interrogation
      when the statements were not the product of a free, intelligent,
      knowing, voluntary, informed and explicit waiver by [Appellant] of
      her privilege against self-incrimination and her right to consult
      with counsel prior to interrogation?

Appellant’s Brief at 5 (full capitalization omitted).

      First, Appellant argues that the trial court erred in concluding she was

not in custody. Appellant emphasizes that she was the focus of a criminal

investigation, transported to the police station by two police officers, and

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interrogated for two hours. Appellant’s Brief at 27. Appellant claims she was

not free to leave the interrogation. Id. Appellant further contends that the

giving of Miranda warnings suggested that she was in custody. Id. at 27-

28.

      When reviewing a suppression ruling, our standard of review is as

follows:

           [W]e determine whether the court’s factual findings are
           supported by the record and whether the legal conclusions
           drawn from them are correct. Where, as here, it is the
           defendant who is appealing the ruling of the suppression
           court, we consider only the evidence of the prosecution and
           so much of the evidence for the defense which remains
           uncontradicted when fairly read in the context of the whole
           record. If, upon our review, we conclude that the
           record supports the factual findings of the suppression
           court, we are bound by those facts, and may reverse only if
           the legal conclusions drawn therefrom are in error.

Commonwealth v. Mitchell, 902 A.2d 430, 450-51 (Pa. 2006) (citations

omitted). “It is within the suppression court’s sole province as factfinder to

pass on the credibility of witnesses and the weight to be given their

testimony.” Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa. Super.

2013) (citation omitted).

      It is well settled that

      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.

      The factors a court utilizes to determine, under the totality of the
      circumstances, whether a detention has become so coercive as to
      constitute the functional equivalent of arrest include: the basis for

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      the detention; its length; its location; whether the suspect was
      transported against his or her 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. The fact that a police
      investigation has focused on a particular individual does not
      automatically trigger “custody,” thus requiring Miranda warnings.

      Whether a person is in custody for Miranda purposes must be
      evaluated on case-by-case basis with due regard for the facts
      involved.

Commonwealth v. Levanduski, 907 A.2d 3, 24 (Pa. Super. 2006) (en banc)

(citations omitted).

      Following our review of the record, we agree with the trial court that the

circumstances under which Appellant was asked to go to the police station,

her transportation to the police station, and the conduct of the interrogation

did not amount to a custodial detention. See Trial Ct. Op. at 8; Levanduski,

907 A.2d at 24. In any event, because the trial court considered the validity

of Appellant’s waiver of her Miranda rights, we will review that determination.

      In support of her claim that the trial court erred in finding that Appellant

waived her Miranda rights, Appellant argues that the reliability of the

Commonwealth’s expert, Dr.         O’Brien, was    undermined by       numerous

deficiencies. Appellant’s Brief at 31. According to Appellant, Dr. O’Brien did

not account for Appellant’s traumatic experiences when suggesting that others

did not easily influence Appellant.     Id. at 31-32.    Additionally, Appellant

asserts that Dr. O’Brien also failed to consider that the DSM-V indicated that

an individual with mild intellectual disabilities “generally needs support to

make legal decisions.” Id. at 32.

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      Appellant also challenges Dr. O’Brien’s opinion that Appellant was

capable of planning and decision-making. Id. Appellant suggests that Dr.

O’Brien relied on a faulty factual assumption that, Appellant previously

initiated mental health treatment for the child. Id. In that instance, Appellant

notes, she was directed to seek mental health treatment by an agency

caseworker. Id.

      Appellant further emphasizes that Dr. O’Brien did not question Appellant

on her ability to understand each component of the Miranda warnings. Id.

at 32.    Appellant asserts that such information was a “glaring deficiency”

because there was no indication that the Miranda warnings were tailored to

Appellant’s cognitive impairments. Id. at 33. Therefore, Appellant concludes

that the trial court abused its discretion when relying on Dr. O’Brien’s opinion

that Appellant knowingly, intelligently, and voluntarily waived her Miranda

rights.

      Appellant also argues that

      [She] had a lower IQ and a lower level of adaptive functioning.
      Her IQ is 63. Her adaptive functioning is severely impaired. She
      has the communication and general coping skills of a 6-year-old.
      She has the daily living skills of an 11-year-old. She cannot read
      or write. She can add simple figures. She cannot subtract, multiply
      and divide. [she] has been receiving SSI benefits since childhood.

      Only 1% of the population has an IQ under 65. Dr. Blumberg
      testified that a “very, very small percentage of the general
      population” has Ms. Moore's level of cognitive impairment and
      adaptive limitations.




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Id. at 31. In light of these factors, Appellant asserts that Commonwealth

v. Reynolds, 446 A.2d 270 (Pa. Super. 1982), suggests error in the trial

court’s conclusion that Appellant was capable of knowingly, intelligently, and

voluntarily waiving her Miranda rights.

      The principles governing our review are well established.

      The determination of whether a confession is voluntary is a
      conclusion of law and, as such, is subject to plenary review.
      Moreover, the totality of the circumstances must be considered in
      evaluating the voluntariness of a confession.

      The determination of whether a defendant has validly waived
      his Miranda rights depends upon a two-prong analysis: (1)
      whether the waiver was voluntary, in the sense that defendant’s
      choice was not the end result of governmental pressure, and (2)
      whether the waiver was knowing and intelligent, in the sense that
      it was made with full comprehension of both the nature of the
      right being abandoned and the consequence of that choice.

Mitchell, 902 A.2d at 450-51 (citations omitted).

      A low IQ alone does not establish that a waiver of Miranda rights is

involuntary, unknowing, or unintelligent. Commonwealth v. Chacko, 459

A.2d 311, 317 (Pa. 1983), abrogated on other grounds by In re L.J., 79 A.3d

1073 (Pa. 2013).

      [I]n the suppression realm, the focus is upon police conduct and
      whether a knowing, intelligent, and voluntary waiver was effected
      based on a totality of the circumstances, which may include
      consideration of a defendant’s mental age and condition, low IQ,
      limited education, and general condition. When a defendant
      alleges that his waiver or confession was involuntary, the question
      “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.”


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Commonwealth v. Sepulveda, 55 A.3d 1108, 1136-37 (Pa. 2012) (citations

omitted).   When assessing the totality of the circumstances surrounding a

confession, other factors include

      the duration and methods of the interrogation; the length of delay
      between arrest and arraignment; the conditions of detainment;
      the attitudes of the police toward defendant; defendant’s physical
      and psychological state; and all other conditions present which
      may serve to drain one’s power of resist[a]nce to suggestion or to
      undermine one's self-determination.

Chacko, 459 A.2d at 317.

      Instantly, the trial court explained its decision to deny Appellant’s

motion to suppress as follows:

      Appellant’s waiver was voluntary. Her IQ is 63 which is below
      normal, but her intellectual disability is merely one factor to
      consider when determining w[he]ther a statement was the
      product of coercion. Further, her verbal IQ is 67 which is quite
      close to the normal range. The DSM-V indicates that someone with
      this particular disability may need help making legal decisions.
      However, she was responsive and answering questions
      appropriately and [Detective] Trovy testified that she thought
      Appellant understood everything. Appellant was known to assert
      herself as a parent and in her own employment situations,
      indicating an ability to understand and act.

      The waiver made was with a full awareness of both the nature of
      the right being abandoned and the consequences of the decision
      to abandon it. Again, the DSM-V suggests a person may need help
      with legal decisions. However, when [Dr.] Blumberg interviewed
      her and asked her specifically about what each Miranda right
      meant, she was able to explain them overall and she did assert
      her rights when she surrendered to police in September. That later
      assertion of rights indicates, despite no change in her mental
      status, . . . that she was able to assert herself and understand
      what it meant.

Trial Ct. Op. at 9-10.

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        Although Appellant raises several alleged deficiencies in Dr. O’Brien’s

assessment, our review of the record reveals no basis to conclude that Dr.

O’Brien’s expert testimony as a whole was unreliable or unworthy of belief.

Furthermore, as indicated above, the trial court did not base its ruling solely

on Dr. O’Brien’s assessment and expert opinion. Thus, Appellant’s contention

that the trial court abused its discretion by relying on Dr. O’Brien’s testimony

merits no relief. See Clemens, 66 A.3d at 378.

        Moreover, the record establishes that the interview lasted approximately

two hours in a conference room. Appellant was not handcuffed. Although

there were two police officers present, Detectives Trovy and Iachini, there is

no indication that their attitude toward Appellant was inappropriate or

aggressive. Detective Trovy testified that she generally told Appellant that

her prior innocent explanations for child’s injuries did not “make sense” and

would tell Appellant “that’s not what happened.”         N.T. at 17, 34-35.     The

detective further stated that Appellant progressively took more responsibility

throughout the interaction and appeared cooperative. Id. at 22.

        In light of the foregoing, we discern no abuse of discretion in the trial

court’s factual findings. We also find no error in the trial court’s conclusion

that Appellant was capable of knowingly, intelligently, and voluntarily waiving

her Miranda rights under the circumstances of this case. Although Appellant

relies, in part, on Reynolds, we find that case distinguishable.                See

Reynolds, 446 A.2d at 272-73 (affirming suppression of confession by the

trial   court   based   on   record   evidence   that   the   interrogating   officer

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psychologically coerced the defendant        by   implicating   the   defendant,

threatening him with jail, and then telling him the police could help him stay

out of jail if he confessed). Accordingly, we conclude that the trial court’s

denial of Appellant’s suppression motion was proper. See Mitchell, 902 A.2d

at 450-51; Clemens, 66 A.3d at 378.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2018




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