J-A04020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                        Appellee

                   v.

JON LEE,

                        Appellant                    No. 1264 WDA 2014


      Appeal from the Judgment of Sentence Entered March 13, 2014
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0010514-2012


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED SEPTEMBER 7, 2016

     Appellant, Jon Lee, appeals from the judgment of sentence of 14-30

years’ incarceration, imposed following his conviction for third-degree

murder, robbery, and criminal conspiracy. In this appeal, Appellant raises

three claims for our review. In our prior memorandum in this matter, we

determined that Appellant’s third claim was waived, and that his first two

claims required us to remand to the trial court for a supplemental Pa.R.A.P.

1925(a) opinion.   See Commonwealth v. Lee, No. 1264 WDA 2014,

unpublished memorandum at 9 (Pa. Super. filed March 23, 2016). The trial

court has filed its supplemental Rule 1925(a) opinion, so we now address

Appellant’s remaining claims.      After careful review, we vacate Appellant’s

judgment of sentence on suppression grounds and remand for a new trial.

     As we noted previously,
J-A04020-16


             Appellant was charged, tried, and convicted for his role in
       the shooting death of Jordan Coyner, which occurred on June 18,
       2012. Appellant, who was sixteen years old when Coyner was
       murdered, purportedly played the role of lookout in a robbery
       conspiracy that resulted in Coyner’s death. This lethal scheme
       was concocted and executed by Appellant and his cohorts:
       Michael Shearn, Brandon Lind, Devele Reid, and Dmetrei
       McCann.      The specific facts underlying this crime, and
       Appellant’s role therein, are detailed in the trial court’s Rule
       1925(a) opinion, but are unnecessary to our disposition in the
       instant memorandum. See Trial Court Opinion (TCO), 2/26/15,
       at 7-17.

              On August 24, 2012, Appellant was charged as an adult
       with criminal homicide generally (18 Pa.C.S. § 2501), robbery
       (18 Pa.C.S. § 3701), and criminal conspiracy (18 Pa.C.S. § 903).
       See Commonwealth v. Sanders, 814 A.2d 1248, 1250 (Pa.
       Super. 2003) (“Pursuant to 42 Pa.C.S.A. § 6322(a), when a
       juvenile has committed a crime, which includes murder, or any
       of the other offenses listed under paragraph (2)(ii) or (iii) of the
       definition of ‘delinquent act’ in 42 Pa.C.S.A. § 6302, the criminal
       division of the Court of Common Pleas is vested with
       jurisdiction.”). On March 7, 2013, Appellant filed a petition to
       transfer his case to Juvenile Court, often called a decertification
       petition. See id. (“When a [juvenile’s] case goes directly to
       criminal division, the juvenile has the option of requesting
       treatment within the juvenile system through a transfer process
       of ‘decertification.’”).

Lee, supra, at 1-2.

       Following a decertification hearing held on May 28, 2013, the trial

court denied Appellant’s decertification petition. See Order, 6/27/13, at 1

(single page).     Appellant also filed a motion to suppress his statement to

police via an amended omnibus pre-trial motion filed on July 17, 2013.1 The


____________________________________________


1
   See footnote 11, infra, for a description of Appellant’s inculpatory
statement.



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J-A04020-16



trial court denied the motion to suppress by order dated November 25,

2013.2

       Appellant’s first trial ended in a mistrial due to multiple issues with the

empaneled jurors. See N.T., 12/3/13, at 91.         His second trial was held on

December 5-13, 2013. On December 13, 2013, the jury returned a verdict,

finding Appellant not guilty of first- and second-degree murder, but guilty of

third-degree murder, 18 Pa.C.S. § 2502(c), robbery, 18 Pa.C.S. § 3701(a)(i)

(serious bodily injury), and criminal conspiracy, 18 Pa.C.S. § 903. Notably,

the jury was instructed that the Commonwealth’s theory of the case

premised Appellant’s culpability for third-degree murder exclusively on his

role as an accomplice. See N.T., 12/5/13-12/13/13 (Vol. II), at 975-76.

       On March 13, 2014, the trial court sentenced Appellant to 14-30 years’

incarceration for third-degree murder, a concurrent term of 5-10 years’

incarceration for robbery, and a concurrent term of 4-8 years’ incarceration

for conspiracy, for an aggregate term of 14-30 years’ incarceration.           On

March 17, 2014, Appellant filed post-sentence motions, which were

ultimately denied on July 2, 2014.




____________________________________________


2
 The Honorable Jeffrey A. Manning, President Judge of the Allegheny County
Court of Common Pleas, presided over and ruled upon Appellant’s pre-trial
decertification and suppression claims.   However, The Honorable Philip
Anthony Ignelzi of the Allegheny County Court of Common Pleas presided
over Appellant’s trial.



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J-A04020-16



        Appellant filed a timely notice of appeal on August 1, 2014. Appellant

filed a timely, court-ordered Pa.R.A.P. 1925(b) statement on October 27,

2014.         Judge Ignelzi issued the trial court’s Rule 1925(a) opinion on

February 25, 2015.         Appellant filed his brief on June 23, 2015, and the

Commonwealth filed its brief on September 21, 2015.         In a memorandum

filed on March 23, 2016, this Court dismissed one of Appellant’s three claims

on waiver grounds, but remanded for President Judge Manning to file a

supplemental Rule 1925(a) opinion regarding the remaining claims.         The

supplemental Rule 1925(a) opinion was issued on April 19, 2016.

        Appellant presents the following questions for our review:

        I.      DID THE LOWER COURT ERR IN FAILING TO SUPPRESS
                THE JUVENILE DEFENDANT’S STATEMENTS TO POLICE
                TAKEN   IN  CUSTODY,   WITHOUT   NOTIFYING THE
                DEFENDANT OF HIS RIGHT TO REMAIN SILENT AS
                REQUIRED BY MIRANDA V. ARIZONA,[3] AND WITHOUT
                ENSURING THAT THE JUVENILE DEFENDANT’S PARENTS
                WERE PRESENT DURING HIS QUESTIONING?

        II.     DID THE LOWER COURT ABUSE ITS DISCRETION AND
                MISAPPLY 42 PA.C.S. § 6322 BY RETAINING CRIMINAL
                JURISDICTION OVER THE 16 YEAR-OLD DEFENDANT?

Appellant’s Brief, at 6.4




____________________________________________


3
    Miranda v. Arizona, 384 U.S. 436 (1966).
4
  We have omitted Appellant’s third claim, as it was addressed, and deemed
waived, in our previous memorandum filed on March 23, 2016. Lee, supra,
at 6-9.



                                           -4-
J-A04020-16



      Appellant’s first claim concerns the trial court’s denial of his motion to

suppress his statement to police.     Specifically, Appellant claims that the

police violated his constitutional rights by failing to issue Miranda warnings,

and by failing to ensure that his parents were present, when the police

solicited an inculpatory statement from him at a police station.            The

Commonwealth argued at the suppression hearing, and continues to

maintain, that Appellant was not a suspect, was not under arrest, and was

not subject to an interrogation when he made that statement. Essentially,

both parties agree that the critical inquiry is whether Appellant was ‘in

custody’ for Miranda purposes at the time he made his inculpatory

statement.    If so, his statement was suppressible.    The suppression court

concluded that Appellant was not in custody at the time he made the

statement.

            The standard of review an appellate court applies when
      considering an order denying a suppression motion is well
      established.    An appellate court 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. Commonwealth v. Russo, 594 Pa. 119,
      934 A.2d 1199, 1203 (2007) (citing Commonwealth v.
      Boczkowski, 577 Pa. 421, 846 A.2d 75 (2004)). Where the
      record supports the factual findings of the trial court, the
      appellate court is bound by those facts and may reverse only if
      the legal conclusions drawn therefrom are in error.          Id.
      However, it is also well settled that an appellate court is not
      bound by the suppression court's conclusions of law. Id. (citing
      Commonwealth v. Duncan, 572 Pa. 438, 817 A.2d 455
      (2003)).

         With respect to factual findings, we are mindful that it is
         the sole province of the suppression court to weigh the


                                     -5-
J-A04020-16


        credibility of the witnesses. Further, the suppression court
        judge is entitled to believe all, part or none of the evidence
        presented. However, where the factual determinations
        made by the suppression court are not supported by the
        evidence, we may reject those findings.           Only factual
        findings which are supported by the record are binding
        upon this [C]ourt.

     Commonwealth v. Benton, 440 Pa.Super. 441, 655 A.2d
     1030, 1032 (1995) (citations omitted). … In appeals from
     suppression orders, our scope of review is limited to the
     evidence presented at the suppression hearing.    In the
     Interest of L.J., 622 Pa. 126, 79 A.3d 1073, 1088–1089
     (2013).1
                                 ___
           1
             Our Supreme Court in L.J. clarified that the scope of
        review of orders granting or denying motions to suppress
        is limited to the evidence presented at the suppression
        hearing. The suppression hearing in this case post-dates
        L.J., so L.J. is applicable here.     Commonwealth v.
        Davis, 102 A.3d 996, 999 n.5 (Pa. Super. 2014).

Commonwealth v. Caple, 121 A.3d 511, 516-17 (Pa. Super. 2015).

     A law enforcement officer must administer Miranda warnings
     prior to custodial interrogation. Commonwealth v. Johnson,
     373 Pa. Super. 312, 541 A.2d 332, 336 (1988). The standard
     for determining whether an encounter with the police is deemed
     “custodial” or police have initiated a custodial interrogation is an
     objective one based on a totality of the circumstances, with due
     consideration given to the reasonable impression conveyed to
     the person interrogated. Commonwealth v. Gwynn, 555 Pa.
     86, ––––, 723 A.2d 143, 148 (1998). Custodial interrogation
     has been defined as “questioning initiated by law enforcement
     officers after a person has been taken into custody or otherwise
     deprived of his [or her] freedom of action in any significant
     way.” Johnson, 541 A.2d at 336 quoting Miranda[, 384 U.S.
     at 444].      “Interrogation” is police conduct “calculated to,
     expected to, or likely to evoke admission.”            Id. quoting
     Commonwealth v. Simala, 434 Pa. 219, 226, 252 A.2d 575,
     578 (1969). When a person's inculpatory statement is not made
     in response to custodial interrogation, the statement is classified
     as gratuitous, and is not subject to suppression for lack of
     warnings. Id.

                                    -6-
J-A04020-16


            The appropriate test for determining whether a situation
      involves custodial interrogation is as follows:

            The test for determining whether a suspect is being
            subjected to custodial interrogation so as to necessitate
            Miranda warnings is whether he is physically deprived of
            his freedom in any significant way or is placed in a
            situation in which he reasonably believes that his freedom
            of action or movement is restricted by such interrogation.

      Commonwealth v. Busch, 713 A.2d 97, 100 (Pa. Super. 1998)
      quoting Commonwealth v. Rosario, 438 Pa.Super. 241, 652
      A.2d 354, 365–66 (1994) (en banc), appeal denied, 546 Pa.
      668, 685 A.2d 547 (1996) (other citations omitted).          Said
      another way, police detentions become custodial when, under
      the totality of the circumstances, the conditions and/or duration
      of the detention become so coercive as to constitute the
      functional equivalent of arrest. Commonwealth v. Ellis, 379
      Pa. Super. 337, 549 A.2d 1323, 1332 (1988), appeal denied,
      522 Pa. 601, 562 A.2d 824 (1989), citing California v. Beheler,
      463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275
      (1983).

            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 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.
      Busch, 713 A.2d at 101. The fact that a police investigation has
      focused on a particular individual does not automatically trigger
      “custody,” thus requiring Miranda warnings. Commonwealth
      v. Fento, 363 Pa.Super. 488, 526 A.2d 784, 787 (1987).

Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999).

      The suppression court grounded its conclusion that Appellant was not

in custody at the time of his inculpatory statement on the following factual

findings:




                                      -7-
J-A04020-16


     Swissvale [B]orough Police Officer, David Zacchia, received a call
     at approximately 9:30 [p.m.] from county dispatch asking him to
     be on the lookout for a Maroon Chevy Impala or Malibu that may
     have been involved in a homicide in Kennedy Township. Five
     minutes after receiving that call, Officer Zacchia observed [a]
     vehicle matching that description parked on Florence Street,
     near Monroe Street. This was near the address [that] dispatch
     had given to him to check for the vehicle. When he advised
     dispatch that he had located the vehicle, a message from
     Allegheny County Police was relayed, asking him to watch the
     vehicle.

            Approximately forty … minutes later, the officer observed
     that the lights on the vehicle came on and the vehicle began to
     move. He followed the vehicle and notified dispatch of its
     movement. He was then advised that the Allegheny County
     Police wanted him to effectuate a stop of the vehicle. He
     followed the vehicle around the block where it parked once again
     in front of 2018 Monroe Street. One male exited the vehicle and
     Officer Zacchia then effectuated the stop of that individual, later
     identified as Brandon Lind. While detaining Lind, … Joe Stevens,
     later identified as Mr. Lind’s stepfather, exited the house with
     another male, later identified as Michael Shearn. Mr. Ste[v]ens
     stated that a third individual, [Appellant], … was in the house
     and [Appellant] [w]as requested to come out of the house as
     well. Officer Zacchia notified county dispatch that he detained
     three individuals and he was asked if he could take them to the
     police station until county homicide could pick them up.
     Complying with that request, Officer Zacchia and other police
     officers transported the three individuals back to the Swissvale
     police station. Officer Zacchia testified that pursuant to police
     policy, each individual was frisked, handcuffed and then placed
     in a marked police vehicle for transportation back to the police
     station. He agreed that they were detained at that time.

           Daniel Mayer, a detective with the Allegheny County Police
     Homicide Unit, testified that he first encountered [Appellant] at
     approximately 1:00 a[.]m[.] at county homicide’s offices. He
     indicated that Mr. Lee had been brought there by Swissvale
     police because, based on the information they had gather[ed]
     from the original scene [of the homicide] in Kennedy Township,
     [Appellant] could possibly be an eye witness. He said that
     [Appellant] was not shackled and was sitting in an unlocked
     interview room when they arrived.         He did not Mirandize
     [Appellant] because he did not believe him to be a suspect and

                                    -8-
J-A04020-16


      was not considered in custody. He asked [Appellant] to provide
      a timeline of where he had been the previous evening.
      [Appellant] told them where he had been. After telling the
      officers where he had been, [Appellant] agreed to provide a
      voluntary, recorded statement.     Upon completion of that
      statement, he … left.

            Detective Mayer said that he told [Appellant] that he was
      free to leave at any time. The questioning began at 1:00 a.m.
      and the recorded statement was completed by 3:35 a.m.
      [Appellant] was not responding to questions during that entire
      time. The officers came and went from the conference room and
      [Appellant] was offered food and drink and access to the
      bathroom. From the time [Appellant] was detained by Officer
      Zacchia until he left the Homicide Unit’s offices, approximately
      five hours elapsed. [Appellant] did not testify nor offer any
      other evidence at the suppression hearing.

Trial Court Supplemental Opinion (TCSO), 4/19/16, at 3-6.

      From these facts, the trial court concluded:

            The focus of this inquiry must be on whether the
      circumstances were such that at the time [Appellant] gave the
      challenged statement, he believed that he was in custody; that
      he believed that he was not free to leave. The undisputed
      testimony of [D]etective M[a]yer, who conducted the interview
      of [Appellant], was that [Appellant] was told that … he was not
      in custody and was free to leave at any time. [Appellant] was
      not handcuffed or locked in a room. He was provided access to
      food, water and bathroom breaks. It is clear that at any time,
      had he chosen to do so, [Appellant] could have ended the
      questioning and left the Allegheny County Police Department,
      Homicide Bureau. The fact that earlier in the evening, he was in
      the custody of the Swissvale Police Department does not obviate
      the fact that at the time of this questioning, he was not in
      custody. He was being questioned as a witness to a homicide.
      He voluntarily remained to answer questions and left when that
      questioning was completed.       As this was not a custodial
      interrogation, a Miranda warning was not required nor was the
      presence of a parent required.      Accordingly, the motion to
      suppress was properly denied.

Id. at 7-8 (emphasis in original).


                                     -9-
J-A04020-16



      In applying the totality of the circumstances test, we begin with a

notable difference between the trial court’s and the suppression court’s

opinions. The trial court concluded that Appellant was not under arrest at

the time Officer Zacchia brought him in, but was instead detained because

he “was believed to be an eyewitness.” Trial Court Opinion (TCO), 2/25/15,

at 23. The trial court’s opinion leaves the impression that Appellant may not

have been in custody for Miranda purposes at the time of his initial

detention.    The suppression court’s opinion, by contrast, accepts that

Appellant was in custody at that time, but states that he was not in custody

several hours later when he gave his recorded, inculpatory statement to

police. We are in agreement with both Appellant and the suppression court

that, regardless of the reason for his detention, Appellant was most certainly

in custody when Officer Zacchia handcuffed him and transported him to the

Allegheny County Homicide Unit’s offices.

      Officer Zacchia testified that he was instructed to detain Appellant and

his associates. N.T., 11/25/13, at 10.       Appellant was subjected to a pat-

down for weapons.      Id. at 12.     Appellant was handcuffed, and then

transported in a marked police vehicle.      Id. at 13.   Officer Zacchia was

asked if Appellant was “being detained by police officers?”          Id.   He

responded, “Yes.” Officer Zacchia was asked if Appellant was “free to leave

at that point?” Id. He answered, “No.”

      Based on these undisputed facts, it is clear that Appellant was in

custody when detained by Officer Zacchia.           See Commonwealth v.

                                    - 10 -
J-A04020-16



Sepulveda, 855 A.2d 783, 790 (Pa. 2004) (holding that a defendant was

“clearly deprived of his freedom of action when” a police officer “handcuffed

him, placed him in the back of the patrol car, and locked the door[,]” such

that “he was indeed in custody for Miranda purposes at that time”). The

question remains, however, whether Appellant was still in custody at the

time he gave his recorded, inculpatory statement a few hours later, and

whether that statement was the fruit of a police interrogation.    While we

agree with the suppression court that the question of whether Appellant was

in custody when he made his inculpatory statement is distinct from whether

he was in custody when detained by the Swissvale police, we disagree with

the suppression court’s suggestion that these matters are unrelated.

      The suppression court’s assessment of whether Appellant was in

custody when interviewed by Detective Mayer appears to disregard

Appellant’s detention by Officer Zacchia a few hours earlier. If so, that was

error. Under the totality-of-the-circumstances standard, Appellant’s earlier

detention was, at least, one of the factors that must be considered when

assessing whether Appellant was in custody when he gave his inculpatory

statement.   This is not a case where a statement was made after a clear

break in custody occurred between a custodial detention and a subsequently

issued statement. Indeed, the very question before us hinges on whether

such a break in custody actually occurred at all.

      Therefore, properly framed, the issue before us is whether Appellant

ceased being in custody for Miranda purpose after his initial detention by

                                    - 11 -
J-A04020-16



Officer Zacchia, but before he gave his inculpatory statement to Detective

Mayer. The suppression court cited the following factors weighing against a

finding that Appellant was in custody when he gave his statement as follows:

1) Appellant was told by Detective Mayer that he was not in custody, and

that he was free to leave; 2) Appellant “was not shackled and was sitting in

an unlocked interview room”; 3) Appellant was “provided access to food,

water and bathroom breaks”; and 4) Appellant was not initially a suspect,

but was brought in as a potential witness. TCSO, at 3-8.

       The first three of these factors are largely uncontested by Appellant.

However, regarding the third, we note that it is unclear why, as is implied,

an individual under arrest or ‘in custody’ would not be permitted to eat,

drink, or use the bathroom. Every prisoner in Pennsylvania is afforded these

basic necessities with obvious regularity. The refusal to grant access to such

things is certainly demonstrative of coercion.       However, the opposite

circumstance does not tend to suggest the absence of a custodial

interrogation with equal vigor.5




____________________________________________


5
   To analogize: choking a witness/suspect until he makes a statement is
certainly compelling evidence of coercive police tactics.     However, the
opposite circumstance is not compelling evidence of anything. Failing to
choke a witness/suspect during police questioning is not particularly strong
evidence of the absence of a custodial interrogation.       Not choking a
witness/suspect should be routine, whether or not a custodial interrogation
is underway.



                                          - 12 -
J-A04020-16



       We recognize that if Appellant were denied food, water, and access to

a bathroom, it would be relevant to whether he was subjected to coercive

conditions such that his statement was rendered involuntarily.       It is also

potentially relevant to whether “the conditions and/or duration of the

detention become so coercive as to constitute the functional equivalent of

arrest.”   Mannion, 725 A.2d at 200 (emphasis added).          However, that

formulation presupposes that a police detention was initially not custodial,

but, due to coercive interrogation techniques or conditions, became so at a

later time. In that sense, a non-custodial detention might become custodial

if, among other things, a defendant were denied access to these necessities.

Yet, here, the question is whether a custodial detention ceased being

custodial by the time Appellant gave his statement. In these circumstances,

the availability of food, water, and access to a bathroom are less relevant to

that determination.    Thus, although we agree that this factor informs our

totality-of-the-circumstances analysis in the most general sense, we

conclude that this factor is less relevant, presently, than it would be if we

were considering an opposite sequence of development in Appellant’s

custodial status.

      With regard to the fourth factor, Appellant argues that the record does

not support the suppression court’s finding that he was not a suspect when

he was detained or, at least, at the time he gave the contested statement.

Appellant notes, correctly, that “[t]he subjective mindset of the interrogating

officers is irrelevant.”   Appellant’s Brief, at 27 (citing Commonwealth v.

                                     - 13 -
J-A04020-16



Williams, 650 A.2d 429, 427 (Pa. 1994) (“The test for custodial

interrogation does not depend upon the subjective intent of the law

enforcement interrogator.”)).       Nevertheless, the Mannion case suggests

that “the basis for the detention” is a relevant factor in our totality-of-the-

circumstances analysis. Mannion, 725 A.2d at 200. However, this is not

necessarily a conflict of law. Synthesizing these authorities, the law is that

the objective basis for Appellant’s detention is relevant to our analysis, but it

is not controlled by the officers’ subjective view of whether Appellant was a

suspect.

      Here, the basis of the detention was clearly related to a homicide

investigation.   Officer Zacchia responded to a dispatch call regarding a

vehicle that was suspected as being involved in a homicide. N.T., 11/25/13,

at 7; TCSO, at 3. Officer Zacchia observed that vehicle “near an area where

they expected that it would be coming back to, unoccupied.”                N.T.,

11/25/13, at 7.    Soon thereafter, he initiated a traffic stop after Brandon

Lind tried to drive the vehicle away. Id. at 9. At that point, Joe Stevens,

Lind’s stepfather, exited a house with Michael Shearn, who Stevens claimed

had been with Lind earlier that evening.        Id. at 10.   Stevens then told

Officer Zacchia that Appellant was still inside the house.       Id.   Appellant

emerged soon thereafter.      Id.    At that point, Officer Zacchia told county

police that “we had these three individuals, and they asked if we could

detain them at our police station until they could arrive to take custody.”




                                      - 14 -
J-A04020-16



Id. These events occurred from approximately 9:30 p.m. until 10:10 p.m.

on the evening of June 19, 2012. Id. at 6, 8.

       Appellant was subsequently transported to the Allegheny County

Homicide Unit’s offices, where Detective Mayer testified that he began

interviewing Appellant at approximately 1:00 a.m. on June 20, 2012. Id. at

24. It is unclear from the record what occurred in the three hours between

Officer Zacchia’s detention of Appellant and his first contact with Detective

Mayer, although it was established that Appellant was transported by

Swissvale police to the offices of the Allegheny County Police Department

during this time.6 Detective Mayer believed that Appellant was transported

from    the   Swissvale     Police   Station   to   the   Allegheny   County   Police

Department, but he could not testify as to whether Appellant was in

restraints at that time. Id. at 37; 39.


____________________________________________


6
  For reference, the distance between the Swissvale Police Department and
the offices of the Allegheny County Police Department is approximately 2½
miles. The address where Appellant was detained is a few blocks away, or
½ mile, from the Swissvale Police station. It is not clear whether Appellant
and his cohorts were transported directly to the Allegheny County Police
Department from the site of their detention just after 10:00 p.m. However,
Appellant did not come in contact with Detective Mayer until 1:00 a.m., and
Officer Zacchia testified that “[n]one of the individuals that were detained
that evening were listed as being secured in the [Swissvale Police] station.”
Id. at 11. Thus, we can assume that, for the majority of this three hour
span of time, Appellant was at, or in transport to, the Allegheny County
Police Department.      Kennedy Township, the scene of the homicide, is
approximately 15 miles west of Swissvale on the opposite side of downtown
Pittsburgh.



                                          - 15 -
J-A04020-16



      Indeed, Detective Mayer was not particularly precise when he was

asked if Appellant was “in shackles” when he interviewed him. Rather than

responding with a simple yes or no, Detective Mayer answered, “I don’t

believe so.” Id. at 24. When asked if he knew if someone took Appellant’s

handcuffs off when he arrived at the Homicide offices, Detective Mayer

answered, “I do not.” Id. at 37-38. He also didn’t “recall” if he took the

handcuffs off himself. Id. at 38. He ultimately admitted that he “could not

confirm or deny that [Appellant] was in handcuffs when he was brought to

the Homicide office.” Id. at 39.

      Given Detective’s Mayer’s ambiguous testimony, we are compelled to

conclude that the record does not support the suppression court’s conclusion

that Appellant was unrestrained when interviewed.        The only testimony

supporting this fact was the qualified answer by Detective Mayer that he

didn’t “believe” Appellant was shackled at that time.         However, it is

undisputed that Appellant was cuffed by Officer Zacchia. Detective Mayer’s

subsequently developed testimony demonstrates that he did not know if

Appellant was handcuffed when he arrived at the Allegheny County Police

Department. He also could not recall whether he, or anyone else, removed

Appellant’s restraints.   Clearly, Detective Mayer could not testify with any

degree of certainty whether Appellant was restrained when interviewed.

Given this uncertainty, we cannot accept the suppression court’s factual

conclusion that Appellant was not restrained at this time. At best, the record




                                     - 16 -
J-A04020-16



neither confirms nor refutes whether Appellant was restrained during the

interview.

       As such, it gives us great pause when considering whether Appellant

was truly “free to leave” during this time. Appellant’s encounter with police

began with the functional equivalent of an arrest. Hours later, crediting the

unambiguous testimony of Detective Mayer, Appellant was told he was free

to leave, and was offered nourishment and the exercise of universal, basic

bodily functions.       However, the context of these factors, which may

independently suggest that Appellant was not in custody during the

interview, make that conclusion doubtful.

       Appellant was sixteen years old when these events occurred. He was

taken into custody late in the evening, and his interview with Detective

Mayer did not even begin until an hour after midnight, and continued,

sporadically, for nearly three hours before the recorded statement was

taken. Appellant did not have a parent or guardian present when he was

ostensibly advised that he was free to leave at any time, although Detective

Mayer acknowledged that he knew Appellant was a minor. Id. at 42. Yet,

Detective Mayer made no attempts to contact a parent or guardian on behalf

of Appellant.7 This was excused by the suppression court because Appellant
____________________________________________


7
  At trial, Appellant’s mother testified: that she went to the Allegheny County
Police Department at approximately 10:30 or 11:00 p.m. on the evening of
the murder; that she told the guard on duty that they had her son; that she
waited in the lobby there until 5:00 a.m. when Appellant was released; and
(Footnote Continued Next Page)


                                          - 17 -
J-A04020-16



was only viewed as a potential witness, not as a suspect being subjected to

a custodial interrogation.

      This conclusion, that Appellant was not a suspect, is also questionable.

Detective Mayer testified that “based on the information we had gathered

from the original scene [of the homicide] at Kennedy Township, we felt

that [Appellant] could be a possible eyewitness.”           Id. at 24 (emphasis

added). He then testified: “So we sat down with [Appellant] and asked him

to just give us a timeline, an idea of where he was the previous evening.

And he told us.”       Id. at 25.     After Appellant conveyed this information to

Detective Mayer, Appellant “agreed to provide a voluntary recorded

statement.” Id. at 33.

      The evidence from the scene of the crime that pointed to Appellant as

a witness, but not a suspect, is not part of the record.        However, we can

deduce from Detective Mayer’s testimony that Appellant’s presence with Lind

and Shearn in Swissvale was not the sole basis for his questioning.

Something discovered (or heard) by the police at the scene of the crime

pointed to Appellant.           Appellant was also discovered near a vehicle

suspected of being involved in the homicide, and in the presence of someone



                       _______________________
(Footnote Continued)

that no one attempted to discuss Appellant’s situation with her during that
time. See N.T. Trial, 12/5/13-12/13/13, at 752-756. However, as our
scope of review is limited to the suppression transcript, we do not consider
these otherwise uncontradicted facts in our analysis.



                                           - 18 -
J-A04020-16



driving that vehicle. All these factors point to Appellant’s being more than a

mere witness. Or, at least, it should have.

       The police knew Appellant was at the scene of the crime, and that he

was found with the other persons of interest at the location where the

potential getaway vehicle was located.8            That vehicle was discovered by

police based upon information they received regarding a specific address;

the same address from which Appellant emerged, and which was connected

to Lind.    Id. at 7-9.     It defies reason to believe that Appellant was not

viewed, in these circumstances, as a potential accomplice to the homicide,

before, during, or after the fact, even if the police did not know his specific

role in the murder or his degree of culpability.

       Thus, we cannot accept the suppression court’s factual conclusion that

Appellant was not a suspect when detained.                Indeed, accepting that

proposition requires this Court to ascribe a level of naiveté or incompetence

to Detective Mayer that we are not willing to assume, nor which is evidenced

by his twenty-one years’ experience as a police officer. Id. at 22-23. The

only reasonable explanation for detaining a sixteen-year-old child overnight,

without the presence of a parent, and given the circumstances that led up to

his detention, is that there was some suspicion regarding his participation in
____________________________________________


8
  Although there is no explicit testimony that the vehicle was suspected of
being a “getaway” vehicle, there is no other explanation offered in the
record before the suppression court, nor does any party, or the lower court,
make any attempt to dispel such an assumption.



                                          - 19 -
J-A04020-16



the homicide.      The suppression court’s cursory analysis of this aspect of

Appellant’s claim appears to be based exclusively on Detective Mayer’s

subjective belief that Appellant was a mere witness immediately prior to or

during his recorded statement.            However, the use of Detective Mayer’s

subjective belief regarding Appellant’s status as a witness or a suspect, by

itself, runs contrary to the objective, totality-of-the-circumstances standard

that applies to our analysis of whether Appellant was subjected to a

custodial interrogation.

       For the aforementioned reasons, we conclude that, in the totality of

the circumstances, Appellant remained in custody from the time he was

detained by Officer Zacchia until he was released, following his incriminating,

recorded statement.         Appellant, a minor when the crime occurred, was

cuffed and transported to the offices of the Allegheny County Homicide Unit.

This occurred late in the evening, and Appellant was held and questioned by

police overnight, without the presence of a parent, until he issued an

incriminating, recorded statement in the early hours of the following

morning.     The evidence is ambiguous as to whether Appellant’s restraints

were ever removed, although he was told he was free to go and offered

food, drink, and bathroom breaks.9             The purpose of this interrogation was
____________________________________________


9
  Appellant does not challenge the suppression court’s factual finding that he
was told he was free to leave by Detective Mayer. However, Appellant
implores that this Court consider that fact in the appropriate context: that
Appellant was minor, told this outside the presence of an attorney, parent,
(Footnote Continued Next Page)


                                          - 20 -
J-A04020-16



due to some degree of suspicion regarding Appellant’s involvement in the

shooting death of Jordan Coyner, despite Detective Mayer’s subjective belief

to the contrary.       In these circumstances, we concluded that Appellant was

involuntarily subjected to a custodial interrogation, and yet he was not

afforded his Miranda rights.10

      Our decision in this regard is buttressed by the fact that at no time

during   Appellant’s       obviously     incriminating   recorded   statement11   did

Detective Mayer stop to afford Appellant his Miranda rights, and/or permit


                       _______________________
(Footnote Continued)

guardian, or other responsible adult to advise him; and that he was told this
in the middle of the night, at a police station in a community that was not
his own. Appellant’s Brief, at 25-26. We agree with Appellant that Detective
Mayer’s statement, like his subjective belief regarding Appellant’s status as a
mere witness, must be considered in the totality of the circumstances, and is
not alone dispositive of whether he was subjected to a custodial
interrogation.
10
   The fact that no Miranda warnings were read to Appellant is not in
dispute.
11
   We note that there is no dispute that Appellant’s statement was
inculpatory, or even that it was remotely ambiguous in that regard.
Nevertheless, a review of the trial transcript indicates Appellant’s statement
was unambiguously inculpatory. The statement was played for the jury
during Appellant’s trial. See N.T., 12/5/13-12/13/13 (Vol. I), at 446-452.
In his statement, Appellant made the following admissions: he placed
himself in the presence of the conspirators, in the car under suspicion as
playing a role in the murder of Coyner, on the day of the murder. Id. at
447. He had a conversation with another individual who suggested that they
commit a robbery. Id. at 448. After that conversation, he rode with the
other coconspirators to the victim’s house, got out of the vehicle, and waited
while another individual went into the house. Id. at 449. Once he heard
shots fired, he fled with the shooter back to the vehicle. Id. at 449-450.



                                           - 21 -
J-A04020-16



him consultation with a parent regarding his “choice” to incriminate himself

in that manner.        It is simply not plausible that Detective Mayer did not

understand the incriminating nature of Appellant’s statement.                       It also

appears implausible that nothing during the interview that preceded the

recorded statement indicated that Appellant was potentially incriminating

himself by placing himself at the scene of the crime with the other

conspirators.

       Finally, we must address the Commonwealth’s claim that this Miranda

violation constituted harmless error.           The Commonwealth argues that

Appellant “used the statement[] to his benefit during his trial, and would not

have    been    able   to   advance   many      of   his   arguments        without   [its]

admission[,]” ostensibly minimizing or eliminating any prejudice caused by

the    statement’s     admission.     Commonwealth’s         Brief,    at     33.      The

Commonwealth also contends that the Miranda violation was harmless error

because the jury was instructed to contemplate whether Miranda was

violated in considering the voluntariness of Appellant’s statement. See N.T.,

12/5/13-12/13/13, at 889-91.

        Indeed, Appellant did attempt, albeit unsuccessfully, to utilize his

inculpatory statement to police to minimize his culpability at trial. However,

the Commonwealth’s line of argument ignores a simple truth: that Appellant

sought suppression of the statement, failed in that endeavor, and then made

the best of that inculpatory evidence.       We simply cannot countenance the

argument that Appellant effectively abandoned his suppression claim by

                                       - 22 -
J-A04020-16



trying to construe his own highly inculpatory statement in the best light

possible before the jury, particularly where it is obvious that his first choice

was to have that statement suppressed.

       The only case cited by the Commonwealth in support of this argument

is Commonwealth v. Baez, 720 A.2d 711, 720 (Pa. 1998). It is certainly

true that “[a] suppression court's error regarding failure to suppress

statements by the accused will not require reversal if the Commonwealth

can establish beyond a reasonable doubt that the error was harmless.” Id.

at 720 (citing Commonwealth v. Fay, 344 A.2d 473, 474 (Pa. 1975)).

However, in Baez, the Supreme Court found that no Miranda violation

occurred. Nevertheless, the Baez Court held that even if such a violation

occurred,     the    defendant’s      contested,       exculpatory   statement     was

substantially similar to statements the defendant made after he was properly

Mirandized, thus rendering any previous Miranda violation harmless.                 Id.

This does not support the Commonwealth’s argument.                    Here, no other

statements     made      by   Appellant        were   properly   admitted   that   were

substantially similar to the contested statement, and Appellant’s statement

was clearly inculpatory, not exculpatory.12
____________________________________________


12
   Fay also does not support the Commonwealth’s argument. In that case,
our Supreme Court considered whether physical evidence, a gun, discovered
as a result of a custodial interrogation, should have been suppressed
because the police failed to give Miranda warnings. The Court found any
possible error on Miranda grounds was harmless because five eyewitnesses
testified that Appellant shot the victim with the weapon and, consequently,
(Footnote Continued Next Page)


                                          - 23 -
J-A04020-16



       The Commonwealth’s second harmless error argument is equally

unconvincing. The Commonwealth cites no authorities that suggest that the

failure to suppress a statement on Miranda grounds can be rendered

harmless if the jury is instructed on the voluntariness of a defendant’s

statement that includes references and/or consideration of whether Miranda

was violated. Indeed, the Commonwealth’s argument conflates suppression

of the evidence with the factfinder’s province of weighing admitted evidence.

It is axiomatic that the jury plays no role in determining whether Miranda

was violated, nor does it play a role in determining the appropriate legal

remedy for such a violation. Certainly, the jury could have concluded that

Appellant’s statement was not voluntary and, therefore, afforded the content

of that statement little or no weight.           However, that is a wholly separate

issue from whether the statement should not have been before the jury at

all.   Accordingly, for all the aforementioned reasons, we conclude that the

Commonwealth has failed to prove, beyond a reasonable doubt, that the


                       _______________________
(Footnote Continued)

the “introduction of the weapon in no way prejudiced [the] appellant’s case,
since even without its introduction the witnesses could have testified to [the]
appellant’s shooting of a gun at the decedent.” Fay, 344 A.2d at 474.
Instantly, the impact of Appellant’s inculpatory statement cannot be fairly
compared to physical evidence which does not, by itself, inculpate a
defendant. Furthermore, it was the Commonwealth’s other evidence in Fay
that rendered the admission of the gun harmless. Here, the Commonwealth
makes an altogether different argument: that Appellant’s attempts to
downplay the negative impact of his inculpatory statement rendered
admission of that statement harmless.



                                           - 24 -
J-A04020-16



denial     of   Appellant’s   Miranda-based     suppression   motion   constituted

harmless error.

         Accordingly, as Appellant’s incriminating statement should have been

suppressed, and because that error was not harmless, we reverse the order

denying suppression, vacate Appellant’s judgment of sentence, and grant

him a new trial.

         Despite our decision in this regard, we must also resolve Appellant’s

claim that the lower court erred when it denied his petition to transfer

proceedings to juvenile court.

         The issue of certification between the juvenile and criminal
         divisions is jurisdictional and, therefore, not waivable.
         Commonwealth v. Johnson, 542 Pa. 568, 669 A.2d 315, 320–
         321 (1995). Decisions of whether to grant decertification will
         not be overturned absent a gross abuse of discretion.
         Commonwealth v. Aziz, 724 A.2d 371, 378 (Pa. Super. 1999),
         appeal denied, 563 Pa. 670, 759 A.2d 919 (2000). An abuse of
         discretion is not merely an error of judgment but involves the
         misapplication or overriding of the law or the exercise of a
         manifestly unreasonable judgment passed upon partiality,
         prejudice or ill will.   Commonwealth v. McGinnis, 450
         Pa.Super. 310, 675 A.2d 1282, 1285 (1996).

Commonwealth v. Sanders, 814 A.2d 1248, 1250 (Pa. Super. 2003).

               The Juvenile Act, 42 Pa.C.S.A. § 6301 et seq., is designed
         to effectuate the protection of the public by providing children
         who commit “delinquent acts” with supervision, rehabilitation,
         and care while promoting responsibility and the ability to become
         a productive member of the community.            42 Pa.C.S.A. §
         6301(b)(2). The Juvenile Act defines a “child” as a person who
         is under eighteen years of age. 42 Pa.C.S.A. § 6302. Typically,
         most crimes involving juveniles are tried in the juvenile court of
         the Court of Common Pleas.




                                       - 25 -
J-A04020-16


           Our legislature, however, has deemed some crimes so
     heinous that they are excluded from the definition of “a
     delinquent act.” Pursuant to 42 Pa.C.S.A. § 6322(a) and §
     6355(e), when a juvenile is charged with a crime, including
     murder or any of the other offenses excluded from the definition
     of “delinquent act” in 42 Pa.C.S.A. § 6302, the criminal division
     of the Court of Common Pleas is vested with jurisdiction. See
     42 Pa.C.S.A. § 6302 (stating that a “delinquent act” shall not
     include the crime of murder); Commonwealth v. Ramos, 920
     A.2d 1253, 1258 (Pa. Super. 2007).

            When a case involving a juvenile goes directly to the
     criminal division, the juvenile can request treatment within the
     juvenile    system     through    a    transfer    process   called
     “decertification.” Commonwealth v. Sanders, 814 A.2d 1248,
     1250 (Pa. Super. 2003). To obtain decertification, it is the
     juvenile's burden to prove, by a preponderance of the evidence,
     that transfer to the juvenile court system best serves the public
     interest. 42 Pa.C.S.A. § 6322(a); Commonwealth v. Smith,
     950 A.2d 327, 328 (Pa. Super. 2008). Pursuant to § 6322(a),
     the decertification court shall consider the factors contained in §
     6355(a)(4)(iii) in determining whether the child has established
     that the transfer will serve the public interest. These factors are
     as follows:

        (A) the impact of the offense on the victim or victims;

        (B) the impact of the offense on the community;

        (C) the threat to the safety of the public or any individual
        posed by the child;

        (D) the nature and circumstances of the offense allegedly
        committed by the child;

        (E) the degree of the child's culpability;

        (F) the adequacy and duration of dispositional alternatives
        available under this chapter and in the adult criminal
        justice system; and

        (G) whether the child is amenable to treatment,
        supervision or rehabilitation as a juvenile by considering
        the following factors:

        (I) age;


                                    - 26 -
J-A04020-16


         (II) mental capacity;

         (III) maturity;

         (IV) the degree of criminal sophistication exhibited by the
         child;

         (V) previous records, if any;

         (VI) the nature and extent of any prior delinquent history,
         including the success or failure of any previous attempts
         by the juvenile court to rehabilitate the child;

         (VII) whether the child can be rehabilitated prior to the
         expiration of the juvenile court jurisdiction;

         (VIII) probation or institutional reports, if any;

         (IX) any other relevant factors;

      42 Pa.C.S.A. § 6355(a)(4)(iii) [].

            While the Juvenile Act requires that a decertification court
      consider all of these factors, it is silent as to the weight assessed
      to each by the court. Sanders, 814 A.2d at 1251. However,
      “[w]hen a juvenile seeks to have his case transferred from the
      criminal division to the juvenile division, he must show that he is
      in need of and amenable to treatment, supervision or
      rehabilitation in the juvenile system.”          Commonwealth v.
      Johnson, 542 Pa. 568, 669 A.2d 315, 320–321 (1995). “If the
      evidence presented fails to establish that the youth would benefit
      from the special features and programs of the juvenile system
      and there is no special reason for sparing the youth from adult
      prosecution, the petition must be denied and jurisdiction remains
      with the criminal division.” Id.

Commonwealth v. Brown, 26 A.3d 485, 491-93 (Pa. Super. 2011)

(emphasis omitted).

      Appellant divides his decertification claim into three subparts. First, he

argues the decertification court

      grossly abused its discretion by relying on the testimony of Dr.
      Wright in violation of [Appellant]’s right against self-
      incrimination, as Dr. Wright’s conclusion that [Appellant] was not


                                     - 27 -
J-A04020-16


      amenable to rehabilitation was based on [Appellant]’s exercise of
      his absolute Constitutional right to refuse to discuss the details
      of his charges with a state agent.

Appellant’s Brief, at 35 (italics omitted).

      The bulk of Appellant’s argument in this regard is directed at the trial

court’s opinion.   That opinion relied, inter alia, on Appellant’s failure to

communicate     with   Dr.   Wright   as      a   factor   in   concluding   that   the

decertification court had not erred in finding that Appellant was not

amenable to treatment in the juvenile system.               See TCO at 19-20.       We

agree with Appellant that consideration of that factor would be improper in

light of Appellant’s Fifth Amendment right against self-incrimination.              See

generally Commonwealth v. Brown, 26 A.3d 485 (Pa. Super. 2011)

(holding that the Fifth Amendment applies to decertification proceedings,

that requiring an admission of guilt to demonstrate amenability to treatment

violated the Fifth Amendment privilege against self-incrimination, and that

invoking the Fifth Amendment during a psychological evaluation was not

required to preserve the right).

      However, the supplemental opinion filed by the decertification court

does not cite Appellant’s failure to cooperate with Dr. Wright when

explaining the decision to deny decertification.           Instead, the supplemental

opinion states that the first five 42 Pa.C.S. § 6355(a)(4)(iii) factors all

weighed against decertification:

      The evidence presented at the hearing established that … there
      was a plan to commit the robbery that led to the death of the
      victim. It was not spontaneous; it was planned and the evidence
      tended to show that [Appellant] participated in that planning.

                                      - 28 -
J-A04020-16


      Moreover, [Appellant] knew that a gun would be present and
      used in the robbery. Nevertheless, he agreed to participate in
      the robbery and go along with the other individuals involved.
      His culpability, though not at the highest level as he did not pull
      the trigger, was at least equal to that of the other individuals
      involved in this plan to rob the victim at gunpoint.

            Obviously, the impact o[n] the victim was the most serious
      impact possible in a criminal matter as he was murdered. The
      offense also impacts the community in the manner that all
      violent deaths in a community have an impact. [Appellant’s]
      involvement, at the age of 16, in a planned, violent, armed
      robbery, certainly established that [he] poses a continuing threat
      to the community. His age also would not permit a lengthy
      period of rehabilitation before Juvenile Court jurisdiction would
      terminate.

TCSO, at 9-10.

      The supplemental opinion only mentions Dr. Wright’s testimony briefly,

as follows:

      The court weighed these factors and evaluated the testimony of
      the conflicting experts. The [c]ourt found the testimony of Dr.
      Wright more credible and afforded that testimony the greater
      weight[.] Based on this, the [c]ourt concluded that [Appellant]
      failed to establish that transfer of his case to Juvenile Court
      would serve the public interest.

Id. at 10.    Thus, the decertification court did not draw any attention to

Appellant’s refusal to speak with Dr. Wright.

      Moreover,    when    cross-examined       on   this   point,   Dr.   Wright

acknowledged that Appellant was advised by his attorney to not answer

specific questions about his criminal conduct.       N.T., 5/28/13, at 126-128.

While Dr. Wright did not mention that fact during direct examination, he

testified that he noted it in his report.    Id. at 128.    During this exchange

with defense counsel, the decertification court twice commented in a manner


                                    - 29 -
J-A04020-16



consistent with an accurate understanding of Appellant’s Fifth Amendment

rights during a psychological examination performed for the purpose of

assisting in a decertification proceeding.      See id. at 127 (“He has a right to

refuse to answer [Dr. Wright’s questions], I suppose.”); id. (responding to

defense counsel’s statement that Appellant’s refusal to answer Dr. Wright’s

questions   was   prompted    by    counsel’s    instructions   to   Appellant,   the

decertification court stated, “I suppose you have a right to instruct him of

that, too”). Accordingly, the record does not support Appellant’s claim that

the decertification court considered his refusal to answer Dr. Wright’s

questions as a factor in denying decertification.

      We conclude that the denial of Appellant’s decertification petition was

not based in any substantial degree on, or was made independent of,

Appellant’s failure to communicate with Dr. Wright during his psychological

evaluation. Thus, the denial did not implicate Appellant’s Fifth Amendment

right against self-incrimination.   Accordingly, the first prong of Appellant’s

decertification argument lacks merit.

      Next, Appellant argues: “The [decertification] court grossly abused its

discretion in denying [Appellant]’s decertification to juvenile court, as

[Appellant] established by a preponderance of the evidence that he was

amenable to treatment and decertification was in the public’s interest.”

Appellant’s Brief, at 41.    Basically, Appellant argues that the statutory

factors set forth in 42 Pa.C.S. § 6355(a)(4)(iii) generally weigh in his favor,

contrary to the assessment of the decertification court.

                                      - 30 -
J-A04020-16



      With regard to the crime, Appellant construes his involvement as

minimal, with references to the record supporting his assertion. Appellant’s

Brief, at 42-43.     Appellant also relies on the assessment of his expert

witness, Dr. Applegate, who concluded that Appellant was amenable to

treatment within the juvenile system despite the gravity of the crime and his

advanced age (relative to the limited timeline for providing rehabilitation in

the juvenile system). Id. at 43-44. Appellant also cites the testimony of

Robert Luczak, who tended to corroborate Dr. Applegate’s evaluation. Id. at

44-45.

      Appellant    criticizes   Dr.   Wright’s   assessment,   which   was   based

primarily on the cold record of Appellant’s school, police, and medical

reports. Id. at 45. Appellant reiterates his concerns regarding Dr. Wright’s

use of Appellant’s silence as a reason to find him not amenable to

rehabilitation in the juvenile system. Id. at 45-46. Appellant is also highly

critical of Dr. Wright’s qualifications, given that Dr. Wright, unlike Dr.

Applegate, had no specialty in juvenile psychology or experience in the

treatment/rehabilitation of juvenile criminal defendants. Id. at 45.

      As noted above, the trial court denied Appellant’s decertification

petition based on a variety of factors. See TCSO, at 9-10. While Appellant

argues that his involvement in the crimes was minimal and/or not evidence

of significant criminal sophistication, it was not an abuse of the court’s

discretion to reject consideration of the facts in a light most favorable to

Appellant, nor was it outside the court’s discretion to assess more weight to

                                        - 31 -
J-A04020-16



the gravity of the crime and its impact on the victim and the community

than to Appellant’s relatively lesser degree of involvement than certain other

coconspirators. In any event, the evidence was mixed regarding Appellant’s

culpability: the statements made by Appellant’s coconspirators diverged

greatly in that regard, and it was not incumbent upon the court to presume

the least degree of involvement that could be ascertained by that evidence.

Moreover, the decertification court was free to give Dr. Wright’s expert

testimony more weight than the testimony of Dr. Applegate and/or Robert

Luczak. Thus, we are constrained to agree that the decertification court did

not err or abuse its discretion when evaluating the statutory factors

pertinent to denying Appellant’s transfer to juvenile court.

      Finally, Appellant claims that “[t]he [decertification] court abused its

discretion by denying [Appellant]’s right to call a witness on his behalf, after

the Commonwealth failed to subpoena the witness despite the [c]ourt

ordering it to do so.” Appellant’s Brief, at 47 (italics omitted). Specifically,

defense counsel

      wanted to call Michael Shearn, who was not charged in any way
      in connection to Jordan Coyner’s murder, yet was present with
      all charged parties throughout the night in question. [Defense
      counsel] sought Shearn’s testimony to highlight [Appellant]’s
      lack of criminal sophistication in the planning and execution of
      the attempted robbery, and that [Appellant] was less criminally
      involved than Shearn – whom the Commonwealth did not charge
      with anything at any level relating to the murder.

Appellant’s Brief, at 47.




                                     - 32 -
J-A04020-16



      This claim was first raised during the decertification hearing. However,

Appellant re-raised this claim in his post-sentence motion, and the trial court

allowed Appellant to develop the claim at a post-trial hearing held on June

11, 2014.       Ultimately, the trial court refused to grant relief because

Appellant

      was unable to demonstrate that the proposed testimony was
      either material or favorable to his petition to transfer
      proceedings to juvenile court.   The extent of Mr. Shearn’s
      involvement in the incident, and his degree of criminal
      sophistication, were not probative of Appellant’s culpability,
      criminal sophistication, and amenability to treatment as a
      juvenile. The connection that counsel sought to make was
      logically unsound.

TCO at 28. Moreover, the trial court found that Appellant

      was not deprived of any arguable benefit of Mr. Shearn’s
      testimony. Mr. Shearn’s testimony at the preliminary hearing
      was submitted by the Commonwealth and used extensively by
      the defense in cross-examining the Commonwealth’s expert
      witness. Defense counsel was able to make the point that Dr.
      Wright’s analysis was based upon the co-defendant’s
      statements, which indicated [Appellant] initiated, planned and
      actively participated in the crimes, rather than on Mr. Shearn’s
      and others’ statements which indicated that [Appellant] played
      only a minor, passive role. Counsel also was able to show that
      Mr. Shearn, who was not charged, appeared to display an equal
      if not greater level of criminal sophistication than [Appellant].
      The only matter that the defense was precluded from developing
      was the reason why Mr. Shearn was not charged with any crimes
      arising from the incident. However, as Judge Manning astutely
      asserted, although that point was relevant to impeaching Mr.
      Shearn’s credibility, it had nothing to do with the decertification
      proceedings.

Id. at 28-29.




                                    - 33 -
J-A04020-16



       We agree with the analysis of the trial court, and conclude that

Appellant is not entitled to relief on this claim. As our Supreme Court has

stated:

       The right to compulsory process encompasses the right to meet
       the prosecution's case with the aid of witnesses, and the right to
       elicit the aid of the Commonwealth in securing those witnesses
       at trial, both of which are fundamental to a fair trial. This
       constitutional right, though fundamental, is not, however,
       absolute. Evidentiary rules based on legitimate state interests
       which exclude certain witnesses or certain testimony are not
       inconsistent nor incompatible with the right to compulsory
       process.4 Accordingly, where certain witnesses' testimony would
       not be admissible at trial, the Constitution does not require that
       a defendant be given the right to secure the attendance of
       witnesses which he has no right to use.
          4
            Although a defendant has the right to have compulsory
          process to obtain witnesses in his behalf and, therefore, to
          have subpoenas issued, the determination of whether or
          not to allow a witness to take the stand is a matter within
          the discretion of the trial judge.     United States v.
          Maloney, 241 F.Supp. 49 (W.D. Pa. 1965). See, e.g.,
          Commonwealth v. Greene, 445 Pa. 228, 285 A.2d 865
          (1971), wherein this Court affirmed the trial court ruling
          disallowing a defendant from calling a witness who would
          probably invoke his Fifth Amendment privilege against
          self-incrimination.

Commonwealth v. Jackson, 324 A.2d 350, 354-55 (Pa. 1974).

       Here, Appellant construes his claim as a compulsory process claim

and, to be sure, the Commonwealth appears to have failed to some extent in

its   responsibility   to   secure   Mr.   Shearn’s   presence   at   Appellant’s

decertification hearing. However, the decertification court, and later the trial

court, found that Mr. Shearn’s testimony was nevertheless prohibited on

relevancy grounds.      Appellant provides little argument, and no case law,


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supporting his claim that he was denied the opportunity to provide relevant

testimony.

      Moreover, to the extent Mr. Shearn’s testimony potentially had some

relevancy to Appellant’s decertification, the trial court accurately notes that

Appellant was able to raise such matters during the cross-examination of Dr.

Wright, through the use of Mr. Shearn’s prior statements.                   Appellant

provides   no   argument    as   to   how      Mr.   Shearn’s   testimony    at   the

decertification hearing would have differed from his prior statements in a

manner that could have benefited Appellant’s argument for decertification.

Accordingly, we conclude that the lower court did not abuse its discretion

when it failed to compel Mr. Shearn’s testimony at Appellant’s decertification

hearing.

      In conclusion, we vacate Appellant’s sentence and remand for a new

trial because the suppression court erred when it denied his motion to

suppress his statement to police on Miranda grounds.              Appellant is not

entitled to relief on any of his remaining claims.

      Judgement of sentence vacated.            Case remanded for a new trial

consistent with this memorandum. Jurisdiction relinquished.

      Judge Shogan joins this memorandum.

      President Judge Emeritus Ford Elliott files a dissenting memorandum

statement.




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J-A04020-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/7/2016




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