J-S51015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 DAKOTA JAMES SWEIGART                   :
                                         :
                   Appellant             :   No. 1959 MDA 2018

     Appeal from the Judgment of Sentence Entered November 2, 2018
             In the Court of Common Pleas of Lancaster County
           Criminal Division at No(s): CP-36-CR-0004227-2017


BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.

MEMORANDUM BY PANELLA, P.J.:            FILED: NOVEMBER 20, 2019

     Dakota James Sweigart appeals from the judgment of sentence entered

in the Lancaster County Court of Common Pleas on November 2, 2018

following his conviction of indecent assault, unlawful contact with a minor,

corruption of minors, and aggravated indecent assault. Sweigart challenges

the denial of his pre-trial motion which sought to exclude incriminating

statements he made during a police interview. We affirm.

     On April 30, 2018, a suppression hearing was held, after which the

suppression court made the following relevant findings of fact:

     These charges result from an allegation that on or about April 28,
     2017, [Sweigart], who was nineteen years old, digitally
     penetrated the vagina of a fifteen-year old female and fondled her
     breasts. On June 20, 2017, after the victim disclosed this alleged
     contact, Detective Graeme Quinn from the Ephrata Police
     Department interviewed [Sweigart] regarding the allegations. This
     initial interview lasted approximately one hour and took place at
     the Ephrata Police Department in lnterview Room 4. [Sweigart]
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     was told that he was not under arrest, that he was free to leave
     at any time, and Detective Quinn even provided directions on how
     to exit the interview room and return to the lobby of the station.
     During the interview [Sweigart] acknowledged that he was with
     the alleged victim on the date in question and was aware of her
     young age, but denied any inappropriate contact with her.
     Detective Quinn then asked [Sweigart] if he would be willing to
     take a polygraph exam to assist in the investigation and
     [Sweigart] indicated that he would.

     The next day [Sweigart] entered the Ephrata Police Department
     to take the polygraph exam and was escorted to the polygraph
     suite by polygraph examiner Detective Peter Sheppard. As a part
     of the pre-test interview, the polygraph exam procedure was
     explained to [Sweigart] and he signed a consent form at 10:07
     a.m. that contained Miranda warnings as well as a notification
     that "the polygraph examination is voluntary." The pre-test
     interview lasted approximately an hour and a half.

     To conduct the polygraph exam, Detective Sheppard affixed
     several sensors to [Sweigart]’s body including a chest strap, an
     abdominal strap, a blood pressure cuff, and two sensors that
     clipped to his fingers. Detective Sheppard then went through
     approximately half an hour of asking questions regarding the
     alleged incident and then scoring [Sweigart]’s answers. During the
     post-test interview with [Sweigart], Detective Sheppard reviewed
     the results with him and told him that the results of the exam
     indicated that he was being deceptive about the contact with the
     victim. [Sweigart] volunteered the information that he had been
     attempting to beat the polygraph exam by reciting song lyrics in
     his head as a countermeasure to the exam. After the post
     interview concluded[,] Detective Sheppard asked [Sweigart]
     whether he believed that Detective Quinn wanted to speak with
     him and [Sweigart] said that he did not know. Detective Sheppard
     then excused himself, spoke with Detective Quinn about the
     results of the test, and returned, telling [Sweigart] "[n]ow, he
     does want to talk to you quick before you go." [Sweigart] replied
     "OK". He was then escorted by Detective Sheppard to lnterview
     Room 4 where he had been questioned by Detective Quinn less
     than twenty-four hours before.

     Detective Quinn did not give [Sweigart] Miranda warnings before
     this second interview and did not specifically recall telling
     [Sweigart] that he was free to leave although he testified that it

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      was his usual practice to do so. Detective Quinn confronted
      [Sweigart] with the results of the failed polygraph and his
      attempts to beat the exam. After about fifteen minutes Detective
      Quinn asked [Sweigart] if he wanted to make another statement
      and "set the record straight" which [Sweigart] agreed to. At
      approximately 12:38 p.m. [Sweigart] made incriminating
      statements in a recorded four-minute statement. Detective Quinn
      testified that at no time during the second interview was
      [Sweigart] under arrest, put in handcuffs, made any promises,
      and throughout their interactions he appeared calm. After the
      conclusion of the interview, [Sweigart] left the station and charges
      were subsequently filed on July 5, 2017.

Trial Court Findings of Fact and Conclusions of Law, 7/18/2018, at 1-3

(citations and footnotes omitted). The suppression court concluded that

Sweigart’s statements “were voluntary and the police were not obligated to

re-warn [Sweigart] of his Miranda rights” and therefore denied the motion to

suppress. Id., at 1.

      Following a jury trial, Sweigart was convicted of the above charges. The

trial court sentenced him to an aggregate sentence of two to five years’

imprisonment. This timely appeal follows.

      On appeal, Sweigart argues the trial court erred in denying his pretrial

motion to suppress. Specifically, Sweigart contends he was in custody at the

time of his post-polygraph interview with Detective Quinn and therefore

Miranda warnings were required. He further argues the Miranda warnings

given to him prior to the polygraph examination became stale by the time of

the subsequent interview due to length of time elapsed, change of room, and

a new detective conducting the interview.




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      “Once a motion to suppress evidence has been filed, it is the

Commonwealth’s burden to prove, by a preponderance of the evidence, that

the challenged evidence was not obtained in violation of the defendant’s

rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa. 2012)

(citations omitted).

      Our standard of review in addressing a challenge to a trial court’s
      denial of a suppression motion is whether the factual findings are
      supported by the record and whether the legal conclusions drawn
      from those facts are correct. When reviewing the ruling of the
      suppression court, we must consider only the evidence of the
      prosecution and so much of the evidence of the defense as
      remains uncontradicted when read in the context of the record as
      a whole. Where the record supports the 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. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations

omitted). “In appeals from suppression orders, our scope of review is limited

to the evidence presented at the suppression hearing.” Commonwealth v.

Caple, 121 A.3d 511, 517 (Pa. Super. 2015) (citation 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 to their testimony.

The suppression court is free to believe all, some or none of the evidence

presented at the suppression hearing.” Commonwealth v. Elmobdy, 823

A.2d 180, 183 (Pa. Super. 2003) (citations omitted).

      Before an individual is subjected to a custodial interrogation, he
      must make a knowing and intelligent waiver of his privilege
      against self-incrimination and right to counsel after adequate
      warning as to those rights. Statements obtained by the police
      during a custodial interrogation without prior Miranda warnings

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      are presumed to be given without a knowing and intelligent
      waiver, and are subject to suppression. To determine if a person
      is in custody for Miranda purposes, however, depends on whether
      the person is physically denied his freedom of action 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
      the interrogation.

Commonwealth v. Johnson, 727 A.2d 1089, 1100 (Pa. 1999).

      We agree with the suppression court that during the post-polygraph

interview, Sweigart was not in custody, and therefore not subject to a

custodial interrogation, such that Miranda warnings were required. Sweigart

had arrived at the police station on his own free will to voluntarily take the

polygraph examination. See N.T., 4/30/18, at 4-9, 31. He then voluntarily

stayed after the examination and followed Detective Sheppard to Interview

Room 4 to speak with Detective Quinn. See id., at 12-14. He was not

restrained in any manner and remained calm throughout the interview. See

id., at 14, 36. There is no evidence that either detective threatened him or

otherwise made any impermissible inducements in exchange for his

confession. There was no suggestion by Sweigart that he wanted questioning

to cease or that he objected to the questioning. Sweigart was not handcuffed

or arrested at the end of the interview, and left the station on his own. See

id., at 37.

      In these circumstances, we do not find Sweigart’s freedom of action was

so restricted by the police questioning that he could reasonably believe that

he was not free to terminate the interview. Because we find he was not subject


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to a custodial interrogation, no Miranda warnings were required. Similarly,

since we find there was no custodial interrogation, Sweigart is entitled to no

relief for the failure to “refresh” the Miranda warning that Detective

Sheppard, in an abundance of caution, had apprised Sweigart of in the written

agreement signed by Sweigart prior to the polygraph examination.

      As we find the trial court did not err in denying suppression of Sweigart’s

motion to suppress, we affirm the judgment of sentence.

      Judgment of sentence affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2019




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