Com. v. Lites, D.

J-S75031-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DANIEL LITES,
Appellant No. 1151 EDA 2014
Appeal from the Judgment of Sentence entered March 31, 2014,
in the Court of Common Pleas of Delaware County,
Criminal Division, at No(s): CP-23-CR-0003235-2013
BEFORE: ALLEN, LAZARUS, and MUNDY, JJ.
MEMORANDUM BY ALLEN, J.: FILED DECEMBER 08, 2014
Daniel Lites (“Appellant”) appeals from the judgment of sentence
imposed after the trial court convicted him of two counts of robbery (serious
bodily injury threatened), one count of theft by unlawful taking, and two
counts of conspiracy to commit robbery.1 Appellant committed the crimes
when he was fifteen (15) years old, and he was tried as an adult.
The trial court summarized the pertinent factual and procedural history
as follows:
On November 9, 2012, at about 7:05 p.m., a pizza
delivery man in East Lansdowne, Pennsylvania was getting into
his delivery vehicle when [Appellant] pointed a gun at him and
demanded money. When the delivery man was slow to respond,
[Appellant] struck him in the face, pointed his gun and again
demanded money. After this victim gave him over $400.00,
____________________________________________
1
18 Pa.C.S.A. §§ 3701(a)(ii), 3921(a), and 903.
J-S75031-14
[Appellant] and an accomplice fled on foot. See Exhibit C-1 pp.
5-10.
The next day, November 10, 2012, at about 7:00 p.m.,
[Appellant] entered a Chinese restaurant while an accomplice
acted as a lookout. [Appellant] pointed a gun at the cook’s head
and demanded money. When he did not respond to the demand
for money, [Appellant] moved on to the cashier. He grabbed her
by the neck, pointed his gun at her and demanded money. She
opened the cash register drawer and he took over $200.00 in
cash and fled. Id. at 16-22.
On the following day, November 11, 2012, at about 2:50
p.m., [Appellant] approached a pedestrian and asked to use his
iPhone. The victim allowed him to use the phone and
[Appellant] ran away with it. A chase ensued but [Appellant]
escaped with the iPhone. Later the same day, [Appellant] made
several calls from the stolen phone, including one to his mother.
See id. at 37-38; N.T., 1/15/14 pp. 5-8.
A search warrant for [Appellant’s] residence seeking
among other things, the iPhone and a photo of [Appellant], was
issued and executed on November 15, 2012. [Appellant] was
not at the residence when the warrant was [executed] and
neither the iPhone nor a current photograph of [Appellant] were
located. He did however appear at the Lansdowne Borough
Police Department later on the same day to be photographed.
At the police station, [Appellant] made admissions which
implicated him in all three of the foregoing incidents. See
Exhibit C-1, pp. 41-42.
[Appellant’s] preliminary hearing was conducted on May
17, 2013 and at its conclusion he was held on all charges
relating to these matters. [Appellant] filed a motion to suppress
statements he gave on November 15, 2012. On September 19,
2013, an evidentiary hearing addressing [Appellant’s] motion to
suppress was held. The Court entered an Order denying the
motion on October 3, 2013.
The matter then proceeded by way of a stipulated bench
trial at which [Appellant] was found guilty of the charges set
forth above. An aggregate sentence of eight to sixteen years of
incarceration to be followed by four years of probation was
imposed. [Appellant] filed a timely Notice of Appeal on April 7,
2014. [Both the trial court and Appellant have complied with
Pa.R.A.P. 1925.]
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J-S75031-14
Trial Court Opinion, 5/22/14, at 1-3 (footnote omitted).
Appellant presents two suppression issues on appeal:
Whether the actions of the Police Officers in conducting a
detailed interview with the Appellant who was a minor, without
giving him Miranda Warnings and without a parent or guardian
present, was in violation of Appellant’s Constitutional rights?
Whether the totality of the circumstances, including the
fact that the Police failed to properly notify Appellant’s mother of
his Constitutional rights, including his right to remain silent,
invalidates the waiver of his Miranda Rights?
Appellant’s Brief at 4. Within the argument section of his brief, Appellant
conflates the above issues in one argument section. See Appellant’s Brief at
8-12. In response, the Commonwealth counters that Appellant was not in
custody when he voluntarily appeared at the police station, and then
voluntarily waived his Miranda2 rights when he gave his statement to
police. Commonwealth Brief at 7.
Our standard of review of the trial court’s denial of a suppression
motion is as follows:
An appellate court's standard of review in addressing a
challenge to a trial court's denial of a suppression motion is
limited to determining whether the factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. [Because] the prosecution
prevailed in the suppression court, we may consider only the
evidence of the prosecution and so much of the evidence for the
defense as remains uncontradicted when read in the context of
the record as a whole. Where the record supports the factual
findings of the trial court, we are bound by those facts and may
____________________________________________
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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J-S75031-14
reverse only if the legal conclusions drawn therefrom are in
error.
Commonwealth v. Reese, 31 A.3d 708, 721 (Pa. Super. 2011) (citations
omitted). Moreover, “[i]t 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).
Here, the particular facts and circumstances are critical to our review.
As the finder of fact and arbiter of credibility, the trial court has offered
reasoning which is both accurate and persuasive. We therefore adopt the
opinion of the Honorable James P. Bradley, sitting as the trial court, in
disposing of this appeal. In addition to citing prevailing case law, Judge
Bradley observed:
[] [Appellant] was not “in custody” when he arrived at the
Lansdowne Police Department []. Sergeant Cadden executed
the search warrant at [Appellant’s] home earlier in the day and
left word that [Appellant] should contact him. [Appellant] knew
that there was an ongoing investigation and that Sergeant
Cadden wanted his photograph. [Appellant] was not arrested.
He was not transported to the police station; he arrived on his
own. Sergeant Cadden retrieved a camera and then he too,
went to the Lansdowne police station. [Appellant] spent no
more than a few minutes with Sergeant Cadden before he began
to implicate himself in the theft and robberies and at that point
Sergeant Cadden immediately interrupted [Appellant]. At no
point was [Appellant] handcuffed, searched or threatened in any
way. While [Appellant’s] age is a relevant factor that
must be considered, it alone does not dictate a finding
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J-S75031-14
that he was in custody. Additionally, while the fact that
[Appellant] was the focus of an investigation has been
considered, given the totality of the circumstances in this case
the conclusion that by appearing at the police station he was
yielding to the functional equivalent of an arrest does not follow.
[Appellant] was asked to contact Sergeant Cadden. He
appeared at the police station of his own volition and not subject
to a prolonged period of detention or interrogation. He was
never threatened, handcuffed, searched or physically restrained.
If [Appellant] believed that he was not free to leave the police
station immediately after his arrival, that belief was not
objectively reasonable. In fact, as Sergeant Cadden was taking
[Appellant’s] photograph, he suggested that they meet later
along with his mother or father to take a statement. While
Sergeant Cadden did not say explicitly, “you are free to leave,”
he repeatedly suggested that all of the interested parties should
meet later and that he sought only a photograph.
Assuming arguendo that after admitting involvement in the
“iPhone robbery,” [Appellant] was “in custody,” the
circumstances demonstrate that the waiver that followed was
knowing and voluntary. As soon as [Appellant] implicated
himself in the iPhone incident and began to make statements
that inculpated him in two other robberies, Sergeant Cadden
ended the conversation. He told [Appellant] he would not take a
statement without his mother or a guardian present and, over
the [Appellant’s] objection, insisted that he call his mother.
[Appellant] spoke with his mother privately, and then Sergeant
Cadden spoke with her. Sergeant Cadden told her that he was
investigating a series of robberies and that [Appellant] had
information that might implicate him. He told her that he
wanted her to be present when her son was interviewed, and
that “these were very, very serious charges and that I would be
happy to wait.” She was not interested in attending an interview
at any time and told Sergeant Cadden to go ahead with the
interview. [Appellant] spoke with his mother again and, after
obtaining an advice of rights form, Sergeant Cadden read
[Appellant] his rights. [Appellant] stated that he understood
each one of his rights as they were read, he initialed his
responses to each question read and he executed his waiver by
signing the form.
***
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J-S75031-14
[I]n Commonwealth v. Knox, 50 A.3d 732 (Pa. Super.
2012) a seventeen year old defendant’s waiver was voluntary,
knowing and intelligent although his statement was given
outside his father’s presence. In Knox, the defendant’s father
was contacted but declined to go to the police station for the
interrogation when his son was arrested following a shooting.
The court explained that the remaining circumstances including
the defendant’s age and experience, the brevity of his detention
and the fact that he demonstrated no difficulty in understanding
the questions on the Miranda form supported a valid waiver.
In this case, the fifteen year old [Appellant] voluntarily
appeared at the police station. He was not transported,
searched or handcuffed. As Sergeant Cadden photographed
[Appellant] he began to make statements implicating him and
Sergeant Cadden immediately stopped the conversation. He
advised [Appellant] that his mother’s presence would be
required before a statement would be taken. Over [Appellant’s]
“adamant” objection, Sergeant Cadden told [Appellant] to call
his mother. [Appellant] spoke to his mother privately and then
Sergeant Cadden spoke with her and advised her that the
charges were very serious and that she should be present. He
made the same suggestion to her that he had made to
[Appellant]; he offered to schedule a meeting for a statement
later, when she could be present. She declined and then she
spoke to [Appellant] again. When [Appellant] and his mother
both told him that she would not be coming to the station and
that [Appellant] wanted to give a statement, Sergeant Cadden
retrieved an advice of rights form, reviewed the form with
[Appellant] and he executed the waiver. There is no evidence
that [Appellant] is of less than normal intelligence or that he
suffers from a condition that would preclude a knowing and
intelligent waiver. Under these circumstances, as in Knox,
supra, [Appellant’s] waiver was knowing and intelligent.
Trial Court Opinion, 5/22/14, at 8-9, 12-13 (emphasis supplied, citations to
some case law and notes of testimony omitted).
The trial court’s reasoning is supported by our review of the record.
Sergeant Cadden was the sole witness at the suppression hearing. He
testified that Appellant “started talking in great detail. Realizing his age I
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J-S75031-14
said that I’m going to need to speak to your guardian, your mother …” N.T.,
9/19/13, at 16. Sergeant Cadden testified that Appellant “Was very
adamant about not having her present.” Id. at 17. He stated:
I told [Appellant] that no, that’s not how it works. It’s not going
to happen. I must speak with his mother and he said over and
over again, well, she’s at work right now. And then I instructed
him to call her at work. It’s a very serious matter. And at that
point he did ultimately. And I left him unattended to call his
mother and then he handed me the phone and I spoke to a
person whose voice I knew to be his mother.
Id. at 18. Sergeant Cadden stated that Appellant’s mother told him she was
at work and “can’t make it” and said, “no, go ahead, some – expressing
frustration with [Appellant] and his problems.” Id. at 19. Sergeant Cadden
specifically testified that Appellant’s mother gave permission for the
interview, and “rejected” Sergeant Cadden’s offer to wait. Id. at 20, 34.
Sergeant Cadden said that he “was only expecting to take a photograph”,
but subsequently “went through each of the Miranda warnings in great
detail” before talking further with Appellant. Id. at 22.
Given the foregoing, we discern no trial court error, and adopt the
entire trial court opinion as our own. The parties shall attach copies of
Judge Bradley’s May 22, 2014 opinion in the event of future proceedings in
this case.
Judgment of sentence affirmed.
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J-S75031-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2014
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IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
- CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-23-CR-3235-2013
vs.
DANIEL UTES
Eileen Courtney, Esquire, on behalf of the Commonwealth •••• -.---------•• - .... --
Michael J. Malloy, on behalf of the Defendant
OPINION
Bradley, J. FILED:
;;
,,
Defendant Daniel Lites was found guilty of two counts of robbery, serious bodily
injured threatened, l one count of theft by unlawful taking' and two counts of climinal
conspiracy to commit robbery'. These convictions arose from three different inCidents, all of
which were committed when the Defendant was fifteen years old. He was tried as an adult
See 42 Pa.C.S.A. § 6302. See ~ Commonwealth v. Ramos. 920 A.2d 1253 (Pa. Super.
2007).
On November 9, 2012 at about 7:05 p.m. a pizza delivery man in East Lansdowne,
Pennsylvania was getting into his delivery vehicle when Defendant pointed a gun at him and
demanded money. When the delivery man was slow to respond the Defendant struck him In
, 18 Pa.C.S.A. § 3701(a)(Ii)
,
218 Pa.C.S.A. §. 3921(a)
18 Pa.C.S.A. § 903.
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the face, pointed his gun and again demanded money. After this victim gave him over
$400.00 the Defendant and an accomplice fled on foot. ~ Exhibit C-1 pp. 5-10.
The next day, November 10, 2012, at about 7:00 p.m . the Defendant entered a
Chinese restaurant while an accomplice acted as a lookout. Defendant pointed a gun at the
cook's head and demanded money. When he did not respond to the demand for money
Defendant moved on to the cashier. He grabbed her by the neck, pointed his gun at her and
demanded money. She opened the cash register drawer and he took over $200.00 In cash
and fied . .!Q. at 16-22.
On the following day, November 11, 2012at about 2:50 p.m. Defendant approached a
pedestrian and asked to use his iPhone. The victim allowed him to use the phone and
Defendant ran away with it. A chase ensued but the Defendant escaped with the IPhone.
Later the same day Defendant made several calls from the stolen IPhone, Including one to his
mother. See ill. at 37-38; NT 1/15/14 pp. 5-8.
A search warrant for Defendant's residence seeking among other things, the iPhone
and a photo of the Defendant, was issued and executed on November 15, 2012. The
Defendant was not at the residence when the warrant was issued and neither the IPhone nor
a current photograph of the Defendant were located. He did however appear at the
Lansdowne Borough Police Department later on the same day to be photographed. At the
police station Defendant made admissions which implicated him In all three of the foregoing
Incidents. ~ Exhibit C-1, pp. 41-42.
Defendant's preliminary hearing was conducted on May 17, 2013 and at its conclusion
he was held on all charges relating to these matters. Defendant filed a motion to suppress
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statements that he gave on November 15, 2012.' On September 19, 2013 an evidentiary
hearing addressing Defendant's motion to suppress was held. The Court entered an Order
denying the motion on October 3, 2013.
·.
The matter then proceeded by way of
..
astipulated bench trial at which Defendant was
found guilty of the charges set forth above. An aggregate sentence of eight to sixteen years
of incarceration to be followed by four years of proba~on was Imposed. Defendant filed a
'.., .
~mely Notice of Appeal on April 7, 2014. In his "Statement of Matters Complained of on
Appeal," Defendant claims that the trial court erred when it failed to suppress his statements.
Specifically, Defendant claims that Defendant was not advised of his Miranda rights before a
. custodial statement was taken, and that any subsequent waiver of Miranda rights was not
,.,.
!
'.
voluntary, knowing and intelligent because he did not consult with a parent or other adult
before waiving his rights. In connection with these daims Defendant contends that although
.' an officer spoke to Defendant's mother by telephone and sought permission to speak to
Defendant, "at no time was Defendant's mother asked if she would like to be present for the
interview." Finally, Defendant ciaims that law enforcement's failure to advise his mother of
his Miranda rights and failure to offer him the opportunily to consult with his mother or an
interested adult rendered his statements inadmissible at trial.
Statements made during custodial interrogation are presumptiVely involuntary, unless
the accused is first advised of his or her Miranda rights. Custodial interrogation is
4 A motion to quash charges related to the "iPhone" Incident was also filed. The v!ctim !n that Incfdent did not
testify at the preliminary hearing and Defendant moved to quash on that basis. On January 15, 2014 the Court
heard the testimony of the lIict;im, James Cox, and of Sergeant James cadden, the InvestIgating officer.
Following that hearing the Commonwealth moved to amend the Informations without obje::tJon and In Count
21,- theft by unlawful taking, was added. At trial, regarding the "iPhone" Inddent/ the CommonWealth proceeded
on this charge alone. ~ N.T. 3/31/14 pp. 10-11.
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"questioning Initiated by law enforcement officers after a person has been taken Into custody
or otherwise deprived of [her) freedom of action in any significant way." "[T)he Miranda
safeguards come Into play whenever a person In custody Is subjected to either express
questioning or its functional equivalent." lQ. A person Is deemed to be In custody for
Miranda purposes when "[he) is physically denied of 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:' In re C.O., 84 A.3d 726, 732 (Pa. Super. 2014)
quoting Commonwealth v. Williams, 650 A.2d 420, 427 (Pa. 1994). "The subjective intent of
the Interrogating officer Is not relevant to a determination of whether an interrogation was
custodial. Rather, the paramount focus is on whether the individual being interrogated
reasonably believes that his freedom of action is being restricted. Commonwealth v. Ellis,
700 A.2d 948, 955 (Pa. Super. 1997). See also In re D,H., 863 A.2d 562 (Pa. Super. 2004).
To avoid suppression based on a violation of Miranda, "it is the Commonwealth's
burden to establish by preponderance that a defendant knowingly and voluntarily waived his
Miranda rights. To meet its burden the Commonwealtn must demonstrate "that the proper
warnings were given, and that the accused manifested an understanding of tnese warnings,"
Commonwealth y. Kunkle, 79 A.3d 1173, 1179 -1180 (Pa. Super. 2013). Sge ~
Commoowealth v, 8aez, 21 A.3d 1280 (Pa. Super. 2011).
Sergeant James Cadden of the East Lansdowne Police Department Investigated the
November 11th "iPhone" Incident and in the course of his InVestigation he obtained a search
warrant for 109 Atlantic Avenue which is located in the Borough of Lansdowne. N,T. 9/19/13
pp. 8-11. The warrant authorized a search and seizure of inter alia, an IPhone and a
4
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photograph of the Defendant. rg. at 14, 28. Defendant's mother resided at this address with
several family members. Sergeant Cadden knew both the Defendant and his mother from
previous interactions. rg. at 8-11. The warrant was executed at about 4:00 p.m. The
Defendant was not at the residence at the time and Sergeant Cadden was unable to obtain a
current photo. Sergeant Cadden "left word with family members to have the Defendant
contact [him.]" M. at 15, 29.
Later in the day Sergeant Cadden received a call from the Lansdowne Police
Department Defendant had appeared at the Lansdowne Police Department to be
photographed. Id. at 15. Sergeant Cadden went to his home station in East Lansdowne,
picked up his camera and continued on to the Lansdowne station where he met the
Defendant. IQ. Sergeant Cadden told the Defendant that he wanted to take the photograph
because he was investigating the IPhone robbery. Id. at 16. Sergeant Cadden tes~fied:
A. Okay. I notified him as far as the cell phone robbery, what it had been about and
why the photograph was being taken. And at that point he began speaking about the aime
itself, the cell phone robbery.
Q. All right. And what did you do then when he started saying something?
A. Well, he started talking in great detail. Realizing his age I said that I'm going to
need to speak with your guardian, your mother, and ...
Q. All right. So in other words did you stop him?
Q. Oh; yes, ma'am.
rg. at 16. ~ aw id. at 34.
Sergeant Cadden took Defendant's photo, telling Defendant that they could meet later
for a statement with his mother or father in attendance. Id. at 37. Sergeant Cadden
instructed Defendant to contact his mother, advising him further that he "needed" her to be
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present when Defendant gave a statement. Id. at 17. Defendant was "adamant." ,lQ. at 18.
,. He stated tIlat his motller was at work and he did not want her present ,lQ. Ultimately
Sergeant cadden prevailed. He left Defendant unattended to call his motller. Defendant
made tile call, spoke to his mother alone and then gave Sergeant Cadden tile telephone. Ili.
Sergeant Cadden spoke witll tile Defendant's motller. He told her tIlat he was
investigating a series of robberies and tIlat Daniel had Information that might implicate him.
Id. at 19. Although he did not read her tile Miranda rights, he told her that he wanted her to
be present when her son was interviewed, and tIlat "these were very, very serious charges
and tIlat I would be happy to wait." jQ. at 19, 34-35. When she replied tIlat she was wo``ing
late and couldn't "make It," Sergeant Cadden said tIlat tile interview cO'uld wait unlil she
.,'
could come in . lQ. She refused Sergeant Cadden's offer, Instructed him to "go ahead: with
tile Interview and expressed her frustration with her son and wltll his problems. IQ. at 19-20.
Sergeant Cadden handed the phone back to tile Defendant and he spoke to his mother
again. ,lQ.
Sergeant Cadden obtained a tape recorder and an East Lansdowne Police Department
advice of rights form. Sergeant cadden administered the Miranda warnings, adding
Defendant's responses to each question asked, including the last question which states that
he understood his rights and was willing to give them up and answer questions. Id. at 22.
Defendant Initialed each response and added his initials and signed the waiver portion. IQ.
~ Exhibit C5-2; Sergeant Cadden requested a warrant for Defendant's arrest the following
day and the warrant was issued on November 17, 2013. See Criminal Complaint; Arrest
Warrant.
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A person questioned by law enforcement officers after being" 'taken.into custody or
otherwise deprived of his freedom of action in any significant way' must first 'be warned that
he has a right to remain silent, that any statement he does make may be used as evidence
against him, and that he has a right to the presence of an attorney, either retained or
appointed."ln re V,H" 788 A.2d 976 (Pa. Super. 2001) quoting Stansbury v, California, 511
u.S. 318, 322-323,114 S.Ct. 1526, 1528-1529, 128 L. Ed. 2d 293 (1994). Whether an
individual is in "custOdy" is an initial determination that depends on the objective
circumstances of the Interrogation, rather than on "the subjective views harbored by either
the interrogating officers or the person being questioned." The "ultimate inquiry" is whether
there is a formal arrest or a restraint on freedom of movement of the degree associated with
.
a formal arrest. IQ. The fact that a defendant is the focus of an investigation does not,
without more circumstances demonstrating that his freedom was restricted, necessarily lead
to the conclusion that a defendant is in "custody." IQ. citing Beckwith v. United States, 425
,
. u.S. 341, 96 S.Ct. 1612,48 L.Ed.2d 1 (1976). In In re V,H" g[Q@, when considering whether
a Juvenile who was Interviewed at his home was "In custody," the COurt explained:
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 ..... 337, 549 A.2d 'Indeed, police detenUons only become
'custodial' when under the totality of circumstances the conditions and/or
duration of the detention become so coercive as to constitute the functional
equivalent of formal arrest.' Among the factors the court utilizes in determining,
under the totality of the drcumstances, whether the detention became so
coercive as to constitute the functional equivalent of a formal arrest are: the
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basis for the detention; the duration; the location; whether the suspect was
transferred against his 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. MJ. at 980 . .
When tile foregoing prindples are applied to the facts of this case, the
conclusion tl1at Defendant was not "in custody" when he arrived at the Lansdowne
Police Department follows. Sergeant cadden executed the search warrant at tile
Defendant's home earlier in the day and left word tilat Defendant should contact him.
Defendant knew.that there was an ongoing investigation and that Sergeant cadden
wanted his photograph. Defendant was not arrested. He was not transported ro the
police station; he arrived on his own. Sergeant Cadden retrieved a camera and then he
roo, went to the Lansdowne police station. Defendant spent no more than a matter of a
few minutes with Sergeant cadden before he began to implicate himself in the theft
and robberies and at that point Sergeant cadden immediately interrupted Defendant. At
no point was the Defendant handcuffed, searched or tilreatened in any way. While
Defendant's age Is a relevant factor that must be conSidered, it alone does not dictate a
finding that Defendant he was In custody. Additionally,
. ' .
while the fact that Defendant
was the fcicus of an investigation has been considered, given the totality of the
ij circumstances in this case the conclusion that by appearing at the police he was
yielding to the functional equivalent of an arrest does not follow. See Commo!ll'lealth v,
Busch, 713 A.2d 97 (Pa. Super. 1998) citfng Commonwealth v, Peters, 642 A.2d 1126,
1130 (1994). Defendant was asked to contact Sergeant cadden. He appeared at the
;i.,
police station of his own volition and not subject ro a prolonged period of detention or
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interrogation, He was never threatened, handcuffed, searched or physically restrained.
If Defendant believed that he was not free to leave the police station immediately after
his arrival that belief was not objectively reasonable. Compare In re K.Q.M., 873 A,2d
752 (Pa .Super. 2005) (belief that he was not free to leave was objectively reasonable
where Sixteen year-old questioned at 3:00 a.m. by uniformed officers in co-defendant's
home with no parental notification). In fact, as Sergeant Cadden was taking
Defendant's photograph he suggested that they meet later along with his mother or
father to take a statement While Sergeant Cadden did not say expliCitly, "you are free
to leave," he repeatedly suggested that all of the interested parties should meet later
and that he sought only a photograph. Id, at 37 .
.,
.,
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.
o Assuming arguendo that after admitting Involvement in the "iPhone robbery,"
Defendant was "In custody," the circumstances demonstrate that the waiver that
followed was knowing and voluntary. As soon as the Defendant implicated himself In
the iPhone incident and began to make statements that inculpated him In two other
robberies Sergeant Cadden ended the conversation. He told the Defendant ):hat he
would not take a statement without his mother or a guardian present and, bver the
j Defendant's objection insisted that he call his mother. Defendant spoke with his mother
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privately, and then SergeantCadden spoke with her. Sergeant Cadden told her that he
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Cadden to go ahead with the Interview. Defendant spoke with his mother again and,
after obtaining an advice of rights form Sergeant Cadden read the Defendant his rights.
Defendant stated that he understood each one of his rights as they were read, he
Initialed his responses to each question read and he executed his waiver by signing the
form.
Juveniles are protected by the rights that Miranda v, Adzona, 384 U.s. 436, 86
S. Ct. 1602, 16 L. Ed. 2d 694 (1966), affords. S§g M. In re K,Q,M., 873 A.2d 752, 755
(Pa. Super. 2005). However, there is no per se requirement that an informed adu~
must be present before a juvenile can waive his Miranda rights. In Commoowealth v.
Williams, 475 A,2d12B3 (Pa. 1984) the.Supreme Court rejected the application of the
existing rebuttable presumption that a juvenile is incompetent to waNe his
constitutional rights without first having an opportunity to consult with an Interested
,
and Informed adult. Reaffirming the principle that a juvenile may not be subject to
custodial interrogation before voluntarily, knowingly and intelligently waiving his
Miranda rights, the Court held that a "totality of the circumstances" analysis is
applicable and that all of the attending facts and circumstances, Including whether an
interested adult was available for consultation, must be considered when determining
whether a "juvenile's confession was knowingly and freely given," In Williams, the court.
answered that question affirmatively, The defendant was seventeen and a half years
old, he had considerable experience in the juvenile justice system, he was arrested and
detained but was not subject to any physical or psychological abuse, he was not
threatened, no promises were made, he was responsive to questions asked of him, he
10
Circulated 11/13/2014 11:27 AM
was in custody for less than two hours, and he was questioned for little more than an
. '
hour before he made a confession and he had an opportunity to talk with his father
before he was advised of his rights, In his father's presence.
Defendant daims that his waiver was not knowing and intelligent because he
was fifteen and was not afforded an opportunity to consult with or have an informed
adult present. In support he relies on In re TB., 11 A.3d 500 (Pa. Super. 2010) where
the Superior Court found that the juveQile defendant's voluntary waiver was not
knowing and·intelligent. T.B. was arrested while driving a stolen vehicle. He was in a
"Juvenile holding fadllty.« Three days before his arrest his mother had been contacted
by a detective who was investigating a series of burglaries and wanted her permission
to speak with T.B. She said she would arrange for her son to speak to the police. After
his arrest another officer obtained the mother's permission to speak with TB. about the
burglaries and the stolen car Incident. There was no Indication that the officer discussed
T.B:s Miranda rights with his mother. T.B. was kept In a holding cell for two hours
before he was advised of his Miranda rights. He waived those rights and was
! interviewed. He admitted that he had participated in four burglaries and had stolen
I the vehicle in question. The parties stipulated that T. B:s I.Q. was sixty-seven, he read
I at a third grade level, and that he was never arrested before.
I1 The Superior Court found that T.B.'s waiver was .not knowing and intelligent. Its
I examination of the "totality of the circumstances: included the following: the appellant
I
\
was arrested and placed in a juvenile holding cell for two hours; officer's contacted his
$ mother before speaking to him and asked if they could discuss several burglaries with
11
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Circulated 11/13/2014 11:27 AM
T.B.; she was not advised of his rights and she was not asked to be present; T.B. was
not offered an opportunity to speak with his mother or an Interested adult and he did
not consult with an Interested adult; T.B. was fifteen years-old, had no prior
expenence with law enforcement, had an IQ of 67 and read at a third grade level. Id. at
508.
,
In contrast, In CQmmQnwea~h v. Knox, 50 A.3d 732 (Pa. Super. 2012) a seventeen
year old defendant's waiver was voluntary, knowing and intelligent although his statement
was given outside his father's presence. In Knox, the defendant's father was contacted but
declined to go to the police station for the Interrogation when his son was arrested following
a shooting. The court explained that the remaining circumstances including the defendant's
age and experience, the brevity of his detention and the fact that he demonstrated no
:1
difficulty in understanding the questions on the Miranda form supported a valid waiver.
In this case the fifteen year-old Defendant voluntarily appeared at th"e police
,
) station. He was not transported, searched or handcuffed. As Sergeant Cadden
photographed Defendant he began to make statements implicating him and Sergeant
Cadden immediately stopped the conversation. He advised Defendant that his mother's
presence would be required before a statement would be taken. Over the Defendant's
II
"adamant" objection Sergeant Cadden told the Defendant to call his mother. Defendant
spoke to his mother privately and then Sergeant Cadden spoke with her and advised
j - -_ heHhat-tRE>-d:large,,-w.ere very serious and that she should be present. He made the
1 "same suggestion to her that he had made to the Defendant: he offered to schedule a
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,I meeting for a statement later, when she could be present. She declined and then she
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12
Circulated 11/13/2014 11:27 AM
spoke to the Defendant again. When Defendant and his mother both told him that she
would not be coming to the station and that Defendant wanted to give a statement
Sergeant retrieved an advice of rights form, reviewed the form with the Defendant and
he executed the' waiver. There is no evidence that Defendant is of less than normal
intelligence or that he suffers from a condition that would preclude a knowing and
inlElligent waiver. Under these Circumstances, as in Knox, g[Q@, Defendant's waiver
was knowing and Intelligent.
In summary, all of the foregoing circumstances compel the conclusion the waiver
was voluntary, that is, "it was the product of a free and deliberalE choice rather than
intimidation, coercion or deception." In re T.B., 11 A.3d at 505. Compare, In Interest
of C.L., 714 A.2d 1074 (Pa . Super. 199B) (fourteen year-old's statement given outside
parents' presence after he was subjected to physical and verbal threats and placed in
jail cell was not freely given). In light of the foregoing, It is respectfully submitted that
judgment of sentence should be affirmed.
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