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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT LEE DUVALL
Appellant No. 1900 MDA 2013
Appeal from the Judgment of Sentence July 15, 2013
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0001394-2012
BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD, J.*
MEMORANDUM BY PANELLA, J. FILED MARCH 09, 2015
Appellant, Robert Lee Duvall, appeals from the judgment of sentence
entered July 15, 2013, by the Honorable Michael E. Bortner, Court of
Common Pleas of York County. Duvall alleges on appeal that the use of,
inter alia, deceptive police tactics rendered his confession made during a
non-custodial interrogation involuntary. After careful review, we affirm.
On September 7, 2011, Pennsylvania State Trooper Neal Navitsky
received a report of sexual assault regarding P.B., who has Downs
Syndrome. P.B. reported to her job coach at the Penn-Mar Organization that
her stepfather, Duvall, had sexually assaulted her on numerous occasions.
Trooper Navitsky contacted Duvall and requested that he come in for an
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*
Former Justice specially assigned to the Superior Court.
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interview. Duvall voluntarily went to the police barracks for an interview.
Trooper Navitsky and Trooper Jeffrey Gotwals interviewed Duvall in a
kitchenette at the barracks for 93 minutes, from 5:27 p.m. to 7:00 p.m.1
At the beginning of the interview, Trooper Navitsky advised Duvall that
he was not in custody, that he was free to leave and that he was under no
obligation to answer any questions. Duvall acknowledged these rights.
Trooper Navitsky then began to question Duvall regarding the allegations of
sexual abuse. Trooper Navitsky informed Duvall, untruthfully, that
preliminary results of a rape kit conducted on P.B. indicated recent sexual
activity. Trooper Navitsky also insinuated that although he had not yet
received the DNA test results, the results would likely indicate that Duvall
had perpetrated the rape. Duvall repeatedly denied that he had raped P.B.
Trooper Navitsky also indicated, again untruthfully, that the rape kit had
proven the victim had been penetrated by a male penis, and he insinuated
that Duvall’s DNA had been detected. Duvall again insisted that he had not
raped P.B. After vacillating under questioning, Duvall confessed that he
had raped P.B.
After again informing Duvall that he was not in custody and that any
statement he wished to make was voluntary, Trooper Navitsky handed
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1
The transcript reveals that although Trooper Gotwals was present during
the interview and asked Duvall some preliminary questions, Trooper
Navitsky, in large part, singly conducted the interview.
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Duvall a Noncustodial Statement Form. Duvall acknowledged on the written
form that having sex with P.B. was a mistake and that it would never
happen again. Trooper Navitsky then concluded the interview.
Duvall was later charged with Rape of a Mentally Disabled Person,2
Involuntary Deviate Sexual Intercourse (“IDSI”) of Person with Mental
Disability,3 Aggravated Indecent Assault,4 Aggravated Indecent Assault of
Person with Mental Disability,5 Sexual Assault,6 Indecent Assault,7 and
Indecent Assault of Person with Mental Disability.8 Duvall filed a pretrial
motion to suppress his confession, on the grounds that it was involuntary.
Following a hearing, the trial court denied Duvall’s motion, although it
permitted Duvall to raise the issue of voluntariness before the jury at trial.
Following a jury trial, Duvall was convicted of Rape of a Mentally
Disabled Person, IDSI of Person with Mental Disability, and Indecent Assault
of a Person with Mental Disability. The trial court sentenced Duvall to an
aggregate term of five to ten years’ incarceration. Duvall filed a timely post-
sentence motion, which the trial court denied. This timely appeal followed.
Duvall frames his issue on appeal as follows.
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2
18 Pa.C.S.A. § 3121(a)(5).
3
18 Pa.C.S.A. § 3123(a)(5).
4
18 Pa.C.S.A. § 3125(a)(1).
5
18 Pa.C.S.A. § 3125(a)(6).
6
18 Pa.C.S.A. § 3124.1.
7
18 Pa.C.S.A. § 3126(a)(1).
8
18 Pa.C.S.A. § 3126(a)(6).
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Did the lower court err in denying Duvall’s motion to suppress as
involuntary his confession during a non-custodial interrogation
where (a) the trooper admitted that he repeatedly lied to Duvall
about DNA and other evidence and suggested he would not go to
jail if he admitted to having consensual sex with P.B.; (b) the
trooper admitted that he lied for the purposes of “breaking down
barriers”; (c) the trooper admitted that the confession did not
include any corroboration beyond the act of sex; (d) Duvall had
repeatedly denied having sex with P.B.; (e) the trooper indicated
that he did not and a jury would not believe him; and (f) he
gave in and confessed due to the unrelenting deception and
manipulation?
Appellant’s Brief at 12.
We review the denial of a motion to suppress evidence as follows.
Our 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.
[W]e 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 findings of the
suppression court, we are bound by those facts and may
reverse only if the court erred in reaching its legal
conclusions based upon the facts.
Further, [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 their testimony.
Commonwealth v. Houck, 102 A.3d 443, 455 (Pa. Super. 2014) (internal
citations and quotations omitted).
We note at the outset that Duvall concedes that he was not in custody
when the interview took place. See Appellant’s Brief at 15. However, “we
must still examine the totality of the circumstances surrounding the
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interrogation to determine if his confession was voluntary because a
noncustodial interrogation might possibly in some situations, by virtue of
some special circumstances, result in an involuntary confession.”
Commonwealth v. Nester, 709 A.2d 879, 882 (Pa. 1998) (internal quotes
and citation omitted).
“When a defendant alleges that his … 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.” Commonwealth v. Mitchell, --- A.3d ---, 2014 WL
7150724, at *7 (Pa., filed Dec. 16 2014) (citation omitted). When assessing
the voluntariness pursuant to the totality of the circumstances, we examine
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.
Nester, 709 A.2d at 882 (citation omitted). The Commonwealth must prove
by a preponderance of the evidence that the defendant confessed
voluntarily. See id.
The totality of the circumstances here reveals that Duvall’s confession
was voluntary. It is uncontested that Duvall participated in the police
interview on his own free will. See Commonwealth v. Edmiston, 634
A.2d 1078, 1087-88 (Pa. 1993) (overruled on other grounds) (defendant’s
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decision to voluntarily participate in interview at police station evidenced
lack of coercion). Trooper Navitsky informed Duvall multiple times that he
was not in custody and was free to leave at any time. See Commonwealth
v. Johnson, 42 A.3d 1017, 1029 (Pa. 2012) (fact that officer repeatedly
informed defendant of his rights and defendant’s expressed understanding
indicated lack of coercion). The interview commenced at 5:27 p.m., lasted
just 93 minutes, and Duvall never indicated a desire to terminate the
interview. See Nester, supra, 709 A.2d at 883 (interview lasting
approximately one hour and fifteen minutes was not unduly long). Duvall
acknowledged that Trooper Navitsky did not threaten him or otherwise make
any impermissible inducements in exchange for Duvall’s confession, and
Duvall in fact recognized that the Trooper Navitsky was respectful and
treated him fairly. See Commonwealth v. Johnson, 305 A.2d 5, 7 (Pa.
1973) (lack of improper inducements or promises by law enforcement factor
in favor of admissibility). There is no evidence to suggest that Trooper
Navitsky denied Duvall food or water or that he was otherwise mistreated in
any way.
The heart of Duvall’s argument is that Trooper Navitsky falsely
insinuated that preliminary results of a rape kit conducted on P.B. indicated
sexual contact had occurred and that the DNA test results would inevitably
reveal that Duvall had raped the victim. However, we note that the
Pennsylvania Supreme Court has found that the use of artifice or even
intentional misrepresentations to obtain a confession is insufficient to make
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an otherwise voluntary confession inadmissible “where the deception does
not produce an untrustworthy confession or offend basic notions of fairness.”
See Commonwealth v. Williams, 640 A.2d 1251, 1259 (Pa. 1994) (claim
that police falsely stated that they had located a gun sold by appellant which
was of the same caliber used in the crime, was not sufficient to render a
confession involuntary absent other coercive circumstances); see also
Commonwealth v. Jones, 322 A.2d 119 (Pa. 1974) (finding confession
was voluntary even though, after the defendant gave an initial exculpatory
statement, the detective falsely claimed that a co-conspirator had implicated
him).
Here, although Trooper Navitsky never affirmatively indicated that
DNA test results positively identified Duvall as the perpetrator of the rape,
this artifice was certainly insinuated and he did not disabuse Duvall of this
notion. Nonetheless, as the totality of the circumstances detailed above
otherwise evidence an almost total lack of coercive circumstances, we do not
find this misrepresentation such that it was likely to cause an untrustworthy
confession.
As further evidence of coercion, Duvall also points to Trooper
Navitsky’s insistence during the interview that he had sex with the victim,
despite Duvall’s initial denials. Duval seems not to grasp that the point of
the interrogation process is to elicit a confession. This volleying back and
forth is a standard part of that process and does not, in itself, give this Court
cause for concern. “Not all psychological persuasion is prohibited.” Nester,
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supra, at 884 (citation omitted). It is only when interrogation becomes so
“manipulative or coercive that it deprived the defendant of his ability to
make a free and unconstrained decision to confess” that voluntariness
concerns are implicated. See Mitchell, supra. Such is not the case here.
In summary, the circumstances of the confession, viewed in their
totality, demonstrate that Duvall was not subject to overbearing physical or
mental coercion such that would render his confession involuntary. We are
therefore satisfied that the Commonwealth met its burden of proving by a
preponderance of the evidence that Duvall’s confession was voluntary.
Accordingly, the trial court properly denied Duvall’s suppression motion, and
we affirm Duvall’s judgment of sentence.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2015
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