Com. v. Rigg, C. ( 2017 )

J. A18029/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 2062 MDA 2015
:
CODY RYAN RIGG :
Appeal from the Order Entered November 18, 2015,
in the Court of Common Pleas of Berks County
Criminal Division at No. CP-06-CR-0004374-2014
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STEVENS,* P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 09, 2017
The Commonwealth appeals from the order entered November 18,
2015, granting defendant/appellee Cody Ryan Rigg’s (“Rigg”) motion to
suppress statements. After careful review, we affirm.
The trial court has summarized the history of this case as follows:
On July 7, 2014, Detective Michael Fick, with
the Berks County District Attorney’s Office, assisted
with an investigation of child abuse. He was asked if
he would interview, along with Detective
[Christopher] Santoro, one Cody Rigg (Defendant) in
an interview room in the Detective’s Unit on the
15th floor of the Services Center in Reading, Berks
County, Pennsylvania. Detective Fick initially went
over basic information with [Rigg]. The detective
began a time line to talk to [Rigg] about what had
happened to an 11 month old girl named [J.F.], who
was injured somehow. The interview began around
10:15 am with a break around 11:50 am. [Rigg]
* Former Justice specially assigned to the Superior Court.
J. A18029/16
asked to record the interview on his phone. The
detective asked for a copy of the recording; [Rigg]
agreed to this. [Rigg] left the room to use the
restroom and was asked to wait in the lobby from
where he would be retrieved after Detective Fick
consulted with Sergeant [Harold] Shenk. The
interviewing continued until 1225 hours and [Rigg]
was given crackers and water. Detective Fink [sic]
then advised [Rigg] that they had with [sic] other
detectives who were doing other interviews and that
his story was not matching up. At approximately
1250 hours, [Rigg] admitted that he caused the
injuries to [J.F.]. [Rigg] then wrote and signed his
three page statement (Notes of Testimony, 4/16/15,
pp. 21-30).
[Rigg] was charged by Criminal Information
with three counts of Aggravated Assault, in violation
of 18 Pa.C.S.A. § 2702(a)(1), all felonies. On
November 3, 2014, [Rigg], through his attorney,
filed an Omnibus Pre[-]Trial Motion. The hearing
was held on January 22, 2015; April 16, 2015 and
concluded on June 29, 2015. [Rigg]’s Motion to
Suppress Statements was granted on November 18,
2015. On November 25, 2015, the Commonwealth
filed a Notice of Appeal to the Superior Court,
certifying that this ruling terminated or substantially
handicapped the prosecution of this case.[1] In its
Concise Statement of Errors Complained of on
Appeal,[2] the Commonwealth asserts that “the trial
court erred in suppressing statements pursuant to
Miranda[3] made during a non-custodial interview
where the defendant was told he was free to leave.”
Trial court opinion, 2/3/16 at 1-2; Docket #42.
1
Pa.R.A.P. 311(d); Commonwealth v. Dugger, 486 A.2d 382 (Pa. 1985).
2
Pa.R.A.P. 1925(b).
3
Miranda v. Arizona, 384 U.S. 436 (1966).
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The trial court, after several evidentiary hearings on Rigg’s
suppression motion, made the following findings of fact:
1. On July 4th, 2014, Berks County Children &
Youth Service (CYS) received a report of an
alleged child abuse victim. The victim was a
ten (10) month old female (J.F.). The victim
was treated at the Reading Hospital and then
transported to Hershey Medical Center. The
victim suffered from a brain bleed, bruises on
her face/chin area and bruises on her neck and
ears.
2. During the investigation Detective Harold
Shenk and Officer Matthew F. Harley met with
a CYS case worker Pat Murray to locate
possible suspects. The Defendant (Cody Rigg)
was mentioned as a possible suspect.
3. On July 5th Sergeant Matthew F. Harely [sic]
interviewed [Rigg] at Hershey Medical Center
and no incriminating statements were made.
Subsequently on the same day, Sergeant Vega
also interviewed [Rigg] at his residence and no
incriminating statements were made.
4. Sergeant Vega scheduled an interview
th
appointment with [Rigg] for July 7 , 2014 at
the Berks County Services Center. [Rigg]
appeared [at] approximately 10:00 a.m. on
said date. Detective Fick escorted [Rigg] to
the front interview room on the 15th floor.
Detective Fick started to ask basic questions
(name, date of birth, address).
5. [Rigg] requested that the interview be
recorded on his cell phone. Detective Fick
permitted this and requested a copy of the
recording. [Rigg] agreed and the questioning
commenced.
6. Detective Fick informed [Rigg] that he was not
under arrest and he can leave at any time. He
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advised [Rigg] that he would be going home
“no matter” what he said. The Detectives also
handed [Rigg] a “Notification of Non-Arrest”
form. [Rigg] signed the form at approximately
10:15 a.m. The Detectives at this point had
narrowed their forms [sic] to [Rigg] alone.
Hence they used all of the tactics at their
disposal to coerce a statement from [Rigg].
7. During the interview the Detective asked
[Rigg] what happened to J.F. [Rigg] explained
the events that transpired and said his two (2)
year old daughter previously kicked J.F. in the
face and ultimately [Rigg] said he does not
know exactly what happened to J.F. She was
just not her normal self and unresponsive.
[Rigg] brought the issue to the birth mother
and she called the paramedics.
8. [Rigg] received a break at approximately
11:50 a.m. The interview resumed at
approximately 12:00 p.m. Detectives Fick and
Santoro continued to ask the same questions
repeatedly to [Rigg]. [Rigg] consistently
denied knowing how J.F. sustained her injuries.
The Detectives used multiple aggressive tactics
(profanity, indirect threat[s], lies about
witnesses’ statements, etc.) during questioning
and [it] lasted for several hours.
9. Subsequently, after approximately several
hours of intense questioning, [Rigg] confessed
and stated he caused injury to J.F. by shaking
her and was convinced to write a three (3)
page statement about his actions. [Rigg] was
further directed into another room to visually
record his statements. [Rigg] was arrested
and charged with three (3) counts of
Aggravated Assault and one (1) count of
Endangering Welfare of Children.
10. There was a pre-meditated attempt on the part
of the police interviewers to take advantage of
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[Rigg]’s lack of mental capacity to extract
incriminating statements.
11. The statements of [Rigg] were the product of
custodial interrogation. In spite of statements
that [Rigg] was free to leave at any time, this
court is convinced that those statements were
false and misleading.
12. There is no reason, whatsoever, in the
circumstances of this interrogation why the
police chose not to give [Rigg] his Miranda
warnings.
13. The statements of [Rigg] were involuntary.
“Findings of fact and conclusions of law pursuant to Pa.R.Crim.P. 581(I),”
11/18/15 at 1-2; Docket #29 (emphasis added).
The Commonwealth has raised the following issues for this court’s
review:
A. Did the trial court err in suppressing
statements obtained as a result of a non-
custodial interview?
B. Did the trial court err in suppressing
statements that were voluntarily made?
Commonwealth’s brief at 4 (capitalization deleted).
When the Commonwealth appeals from a
suppression order, we follow a clearly defined
standard of review and consider only the evidence
from the defendant’s witnesses together with the
evidence of the prosecution that, when read in the
context of the entire record, remains uncontradicted.
The suppression court’s findings of fact bind an
appellate court if the record supports those findings.
The suppression court’s conclusions of law, however,
are not binding on an appellate court, whose duty it
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is to determine if the suppression court properly
applied the law to the facts.
Commonwealth v. Nester, 709 A.2d 879, 880-881 (Pa. 1998) (citations
omitted). “The determination of whether a confession is voluntary is a
conclusion of law and, as such, is subject to plenary review.”
Commonwealth v. Templin, 795 A.2d 959, 961 (Pa. 2002), citing Nester,
supra.
Statements made during custodial interrogation are
presumptively involuntary, unless the accused is first
advised of . . . Miranda rights. Commonwealth v.
DiStefano, 782 A.2d 574, 579 (Pa.Super. 2001),
appeal denied, 569 Pa. 716, 806 A.2d 858 (2002).
Custodial interrogation is “questioning initiated by
law enforcement officers after a person has been
taken into custody or otherwise deprived of [his]
freedom of action in any significant way.” Miranda,
supra at 444, 86 S.Ct at 1612, 16 L. Ed. 2d at 706.
“The Miranda safeguards come into play whenever a
person in custody is subjected to either express
questioning or its functional equivalent.”
Commonwealth v. Gaul, 590 Pa. 175, 180, 912
A.2d 252, 255 (2006), cert. denied, 552 U.S. 939,
128 S. Ct. 43, 169 L. Ed. 2d 242 (2007). Thus,
“Interrogation occurs where the police should know
that their words or actions are reasonably likely to
elicit an incriminating response from the suspect.”
Commonwealth v. Ingram, 814 A.2d 264, 271
(Pa.Super. 2002), appeal denied, 573 Pa. 671, 821
A.2d 586 (2003). “In evaluating whether Miranda
warnings were necessary, a court must consider the
totality of the circumstances . . . .” Gaul, supra.
Commonwealth v. Gonzalez, 979 A.2d 879, 888-889 (Pa.Super. 2009),
quoting Commonwealth v. Williams, 941 A.2d 14, 30 (Pa.Super. 2008)
(en banc).
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Whether a person is in custody for
Miranda purposes depends on whether
the person is physically denied of [her]
freedom of action in any significant way
or is placed in a situation in which [she]
reasonably believes that [her] freedom
of action or movement is restricted by
the interrogation. Moreover, the test for
custodial interrogation does not depend
upon the subjective intent of the law
enforcement officer interrogator. Rather,
the test focuses on whether the
individual being interrogated reasonably
believes [her] freedom of action is being
restricted.
Commonwealth v. Clayton Williams, 539 Pa. 61,
74, 650 A.2d 420, 427 (1994) (internal citations
omitted). See also Commonwealth v. Mannion,
725 A.2d 196, 202 (Pa.Super. 1999) (en banc)
(stating whether person is in custody for Miranda
purposes must be evaluated on case-by-case basis
with due regard for facts involved); Commonwealth
v. Peters, 434 Pa.Super. 268, 642 A.2d 1126, 1130
(1994) (en banc), appeal denied, 538 Pa. 668,
649 A.2d 670 (1994) (stating: “Among the factors
the court utilizes in determining, under the totality of
the circumstances, whether the detention became so
coercive as to constitute the functional equivalent of
a formal arrest are: the basis for the detention; the
duration; the location; whether the suspect was
transferred against [her] will, how far, and why;
whether restraints were used; the show, threat or
use of force; and the methods of investigation used
to confirm or dispel suspicions”; fact that defendant
was focus of investigation is relevant for
determination of whether defendant was in “custody”
but does not require per se Miranda warnings).
Williams, 941 A.2d at 30-31 (brackets in original).
When deciding a motion to suppress a confession,
the touchstone inquiry is whether the confession was
voluntary. Voluntariness is determined from the
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totality of the circumstances surrounding the
confession. The question of voluntariness 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. The
Commonwealth has the burden of proving by a
preponderance of the evidence that the defendant
confessed voluntarily.
Nester, 709 A.2d at 882 (citations and footnote omitted).
When assessing voluntariness pursuant to the
totality of the circumstances, a court should look at
the following factors: the duration and means of the
interrogation; the physical and psychological state of
the accused; the conditions attendant to the
detention; the attitude of the interrogator; and any
and all other factors that could drain a person’s
ability to withstand suggestion and coercion.
Id., 709 A.2d at 882 (citations omitted). “The line of distinction between a
voluntary and an involuntary confession is that at which governing
self-direction is lost and compulsion propels the confession.” Id. at 884
(citations omitted).
Before the interview began at 10:15 a.m., Rigg signed a “Notification
of Non-Arrest” form, acknowledging that he was not under arrest and was
free to leave at any time. (Notes of testimony, 4/16/15 at 24-25;
Commonwealth’s Exhibit 2.) Detective Fick testified that Rigg appeared to
understand the form and did not have any questions. (Id. at 25.) Rigg
asked whether he could record the interview on his cell phone;
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Detective Fick did not object but requested that Rigg make him a copy. (Id.
at 26.) Rigg agreed. (Id.)
The interview took place on the 15th floor. They sat in a small room,
approximately 7’ by 6’, at a round table. (Id. at 42.) The door was closed
but not locked. (Id. at 43.) They took a short, 10-minute break from 11:50
a.m. to 12:00 p.m., during which Rigg left the room to use the bathroom.
(Id. at 28, 50-51.) Rigg was not accompanied by law enforcement. (Id.)
Detective Fick asked him to wait in the lobby area when he was done. (Id.)
They took a second break at 12:25 p.m., and Detective Fick got Rigg
some crackers and water. (Id. at 29.) Rigg remained alone in the interview
room during this second break. (Id. at 58.) Up until this point, Rigg had
consistently denied knowing anything about J.F.’s injuries. (Id. at 57.)
Detective Santoro showed Rigg color photographs of J.F. in a body cast and
told him to “take a look at these and really think about it.” (Id. at 76.)
Detective Santoro told Rigg, “I don’t want to hear, ‘I didn’t do it.’” (Id. at
77.) According to Detective Fick, it was during this second break that they
realized Rigg’s story “wasn’t matching with what the others were obtaining.”
(Id. at 58.)
When the questioning resumed, Detective Fick told Rigg that “things
weren’t matching.” (Id. at 59.) However, Rigg continued to deny causing
the injuries to J.F. (Id. at 59-60.) Detective Santoro testified that, “I pled
with him if he knew what happened to this child to tell us so that we could
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let the hospital know how the injuries were inflicted.” (Id. at 77.) Finally,
at 12:50 p.m., Rigg confessed and agreed to make a statement. (Id. at
60.)
According to Detective Fick’s testimony, at first, they had no specific
information that would implicate Rigg. (Id. at 49-50.) Detective Fick
testified that, “And when we met with [Rigg] initially, I was under the
impression that we were talking to him and trying to get a timeline. I don’t
believe that anyone was looking at him at that time like he had any
involvement in this.” (Id. at 41.) It is clear, however, that as the interview
progressed, Detectives Fick and Santoro became increasingly aggressive in
their questioning of Rigg:
[Detective Santoro]: “I walked into that room [at
Hershey Medical Center]. It broke my heart. We do
this for a reason. We spent the weekend in here for
a child we never met before. I know you for the last
hour. I don’t know if you love this child or reject it.
You have nothing to do with this child. If you can
look at this child and not feel something, I don’t
know. I think you do. Nobody is going to blow
smoke up our asses and tell us a 2 year old did this.
It’s bullshit. Bullshit. Now’s the time for us so we
can tell the doctors and maybe save her life. If this
child dies and you know what happened, there’s
gonna [sic] be a big problem. Period. You think
because ‘I didn’t have anything to do with it but I
know what happened,’ my opinion is if I could drive
it home on you, I will. If I could drive it home on
you, and you will burn.”
Detective Fick then said[,] “if we find out someone
lied, they’re fucked.”
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Detective Santoro then said, “I met her five minutes
and it breaks my heart. Now tell us what happened.
It’s bullshit that you don’t know. You know what
happened.”
Detective Fick said, “she was under your care.”
Detective Santoro said, “somebody start talking
because she’s over there running her mouth[,]”
referring to J.F.’s mother.[4]
Detective Fick said, “she [J.F.’s mother] already told
us something that doesn’t match.”
Detective Santoro said, “if you did something and it
was an accident, on that recording, you need to tell
us because if you walk out of here and we call you
back in it’s not on there that it was an accident. So
what happened with the child? Don’t tell me a
2 year old did this. Don’t tell me you don’t know.
Again, we have 60 years[’] law enforcement and we
talk to liars and murderers every day who blow
smoke up my ass and spend life in prison. We need
the information to know if this child will survive and
how things happened so doctors can save her life.”
Detective Fick said, “if you made a mistake, tell us
so we can help this child. That’s what we’re all here
for no matter what happened.”
Detective Santoro said, “I can see it all over your
face that you know what happened[,]” after which
[Rigg] said, “I don’t know. I feel so bad for this kid.”
4
In fact, Detective Santoro testified that while J.F.’s mother was in the
office, he did not know whether or not she was being interviewed at that
time. (Notes of testimony, 4/16/15 at 74.)
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Rigg’s brief in support of omnibus pre-trial motion, 7/23/15 at 16-17;
Docket #25 (some brackets in original).5
Detective Fick said, . . . “What went wrong? You
can’t tell us you don’t know. Here’s what happened:
you know, or you made a mistake and accidentally
hurt this child.”
Detective Santoro then said, “or you tried to kill
her.”
Detective Fick asked, “are you a killer?” which [Rigg]
denied. Detective Fick then said, “scratch that off
the table.”
Id. at 17.
Detective Santoro then asked, “who hurt this kid?
Don’t tell me you don’t know who hurt this child.
You were there. We talked to people already. These
marks just don’t appear like in a horror movie. This
child was injured. This child was hurt. The next
day, she has marks. The kids didn’t do this. The
other injuries weren’t from that night. There was a
full scan of her body. This child has old injuries,
broken bones that are healing, so you need to start
running your mouth because if she’s saying you’re a
killer, then I guess we’ll believe her. Is that what
you want to do?”
Id.
Detective Santoro said, . . . “Let me take a break
and give you about 5 to 10 minutes and when we
come back I don’t want to hear that we don’t know,
that I have no idea, that’s craziness, that’s insanity.”
5
From our review of the recordings, these quotations are substantially
verbatim. There is no transcript in the record. However, while a word or
phrase is missing here or there, as a whole, they accurately reflect what was
being said.
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Detective Fick then offered to bring [Rigg] another
water into the interview room to which [Rigg]
responded, “um, sure.” Detective Santoro finished
with “think about it. Really look at her[,]” referring
to the photographs of J.F. in the hospital bed.
Id. at 18.
Detectives Fick and Santoro then left Rigg in the interview room alone
with the photographs of J.F. Rigg was not told he was free to leave. (Id. at
58-59.) They returned approximately ten minutes later, and the questioning
resumed. Unfortunately, the third part of the interview, from 12:34 p.m. to
12:50 p.m., is not available.6 However, Detective Fick testified that, “my
report indicates when we pushed approximately 12:34, it was at 12:50 is
when he admitted that he caused the injuries.” (Notes of testimony,
4/16/15 at 60.) Up until that point, Rigg had consistently denied that he
hurt J.F. (Id. at 59-60.) Detective Fick testified that they told Rigg that
“things were not matching” and that he needed to tell them the truth so they
could help J.F. (Id. at 60-61.) Although Rigg was told he was free to leave
and could end the interview at any time prior to the start of the interview
process at 10:15 a.m., it was not repeated until after he confessed. (Id. at
46, 57, 59, 64, 71.)
Examining the totality of the circumstances, we agree with the trial
court that a reasonable person in Rigg’s shoes would not have felt free to
6
Apparently, this portion of the interview was deleted from Rigg’s phone.
(Notes of testimony, 4/16/15 at 17-18, 33.)
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leave, particularly when it became clear to the detectives that Rigg’s story
was not “matching up.” Detective Fick testified that during the first part of
the interview, he had no particular reason to believe Rigg was responsible
for J.F.’s injuries. (Id. at 49.) However, after the second break at
12:25 p.m., it became apparent that Rigg was not telling them the truth.
(Id. at 57-59.) It was at this point that Rigg became the prime suspect in
the investigation. (Id. at 58.)
As set forth above, the questioning intensified, with Detective Fick
stating, “if we find out someone lied, they’re fucked,” and Detective Santoro
telling Rigg that, “It’s bullshit that you don’t know.” Detective Santoro
directed Rigg to look at the photographs of J.F.’s bruised and battered body
and “when we come back I don’t want to hear that we don’t know, that I
have no idea, that’s craziness, that’s insanity.” Detective Fick asked Rigg,
“Want us to bring you another water back in?” No reasonable person in
these circumstances would feel free to get up and leave, notwithstanding the
“Notification of Non-Arrest” form that Rigg signed at 10:15 a.m., two hours
earlier.
In addition, the detectives’ questioning was clearly designed to elicit
an incriminating response. Despite Rigg’s denials, they repeatedly told him
that they did not believe his story, that he knew what really happened, and
that if he did not tell them, he “will burn.” Detective Santoro suggested that
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perhaps Rigg had intentionally tried to kill J.F. This was a custodial
interrogation and Miranda warnings were required.
Rigg’s confession was not voluntary, but was the result of hours of
intense police interrogation, including the use of threats and psychological
coercion. Detective Santoro warned Rigg that, “we talk to liars and
murderers every day who blow smoke up my ass and spend life in prison.”
Detective Santoro told Rigg, “you need to start running your mouth because
if she’s saying you’re a killer, then I guess we’ll believe her [(J.F.’s
mother)].” They repeatedly told Rigg that unless he told them what
happened, J.F. could die. The detectives suggested that the purpose of the
“interview” was not to assign blame, but simply to discover the cause of
J.F.’s injuries so that information could be passed along to J.F.’s doctors.
In addition, Rigg had a verbal scale IQ score of 79, which is borderline
intellectually disabled. (Notes of testimony, 6/29/15 at 32-33.) A verbal IQ
of 79 is in the 8th percentile. (Id. at 29.) Rigg was classified as learning
disabled and given an Individual Education Plan. (Id. at 7.) Low IQ is a
relevant factor in determining the voluntariness of a confession.
Commonwealth v. Purvis, 326 A.2d 369 (Pa. 1974). Edward Glassic, Jr.,
the Exeter Township School District certified school psychologist, testified
regarding Rigg’s disability:
So if Cody is being interrogated and he comes
voluntarily into the police department and they start
asking him questions. Pretend there is an officer at
the door. There is an officer over there and an
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officer sitting right in front of him. And it would be
very difficult. And let’s say the interrogation goes on
for two hours. Gets very tense. Cursing, yelling,
screaming. Things like that. Accusations. Well, if
you look at Cody’s records, you will find out that he
is sociable. Polite. He can navigate pretty well in
the social world. So he is not going to -- he may
have respect for authority. So he may not leave that
room. It may not dawn on him that everything that
he says can and probably will be held against him.
He might not know the implications of that. It might
not ever dawn on him that he can get out of that
room when he is feeling the heat. Get out of dodge
and go talk to his parents or seek additional help.
That may never occur to him. Especially under
stressful circumstances.
Notes of testimony, 6/29/15 at 31.
For these reasons, under the totality of the circumstances, we
determine that the trial court did not err in finding that the questioning by
police evolved into a custodial interrogation that was likely or expected to
elicit a confession; and, therefore, Miranda warnings were required.
Certainly, once it became clear that Rigg’s version of events was not
consistent with other information and he was the primary focus of the
investigation, Miranda warnings were required before police could escalate
the interrogation by using increasingly aggressive and manipulative tactics.
During the second break in questioning, when Rigg was essentially told to
stay in the interview room and examine J.F.’s photographs and warned that,
“when we come back I don’t want to hear that we don’t know, that I have no
idea,” a person in Rigg’s situation would reasonably believe that his freedom
of movement was being restricted by the interrogation. At that point the
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interrogation became the functional equivalent of an arrest. We do not find
Rigg’s execution of the “Notification of Non-Arrest” form to be dispositive;
rather, it is one factor to be considered. Furthermore, Rigg’s confession was
not the product of a free and unconstrained choice, especially considering his
low verbal scale IQ of 79. As such, the trial court did not err in suppressing
Rigg’s statements to police.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2017
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