Com. v. Moore, K. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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