J. A09012/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
IN THE INTEREST OF: : IN THE SUPERIOR COURT OF
J.M.C., A MINOR : PENNSYLVANIA
:
APPEAL OF: COMMONWEALTH OF : No. 1265 MDA 2015
PENNSYLVANIA :
Appeal from the Order Entered June 30, 2015,
in the Court of Common Pleas of Cumberland County
Juvenile Division at No. CP-21-JV-0000086-2015
BEFORE: FORD ELLIOTT, P.J.E., JENKINS AND PLATT,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 21, 2016
The Commonwealth appeals from the June 30, 2015 order granting
J.M.C.’s omnibus pre-trial motion to suppress inculpatory statements that
he made during the course of a court-ordered sex offender treatment
program, as well as any evidence stemming from these admissions. After
careful review, we affirm.
The relevant facts and procedural history of this case, as gleaned from
the certified record, are as follows. On September 14, 2010, J.M.C. was
adjudicated delinquent of involuntary deviate sexual intercourse (“IDSI”)
and attempted rape of a child. (Notes of testimony, 6/1/15 at 3-5.) On
May 12, 2014, the juvenile court modified the disposition for J.M.C. and
ordered that he successfully complete the sex offender treatment program
* Retired Senior Judge assigned to the Superior Court.
J. A09012/16
at Adelphoi Village Secure Treatment Center (“Adelphoi Village”). (Id. at 4.)
As part of his treatment, J.M.C. was required to disclose his sexual history
and submit to a polygraph administered by the treatment providers at
Adelphoi Village. (Id. at 7.) On June 23, 2014, J.M.C. disclosed during a
pre-polygraph examination that he had sexually assaulted a number of
juveniles, including an autistic boy, S.J. (“the victim”). (Id. at 7, 12, 55.)
Based upon this disclosure, it was later determined that these sexual
assaults occurred between February and August 2009 at a Cumberland
County foster home where both J.M.C. and the victim resided. (Id. at 9,
18-19; see also “Written Allegation,” 3/17/15 at 3.) At the time of these
sexual assaults, J.M.C. was approximately 14 years old and the victim was
between the ages of 8 and 9 years old. (“Written Allegation,” 3/17/15 at 3.)
J.M.C. was not provided constitutional rights or Miranda1 warnings prior to
the polygraph examination and associated interview. (Juvenile court opinion
and order, 6/30/15 at 2; findings of fact nos. 8, 9.)
As a result of J.M.C.’s disclosure, this incident was reported to the
Pennsylvania Department of Public Welfare (“DPW”) and the State Police
commenced an investigation. (Notes of testimony, 6/1/15 at 9-11, 17-18.)
On November 20, 2014, J.M.C. was interviewed at Adelphoi Village by
Trooper David Rush (“Trooper Rush”) and Mark Schrode (“Schrode”), a
program representative with the Office of Children and Youth and Family
1
Miranda v. Arizona, 384 U.S. 436 (1966).
-2-
J. A09012/16
Services (“CYS”). (Id.) During this interview, the only individuals present
in the room were Schrode, Rush, and J.M.C. (Id. at 13.) Trooper Rush was
unable to affirmatively recall whether J.M.C. was given Miranda warnings
prior to this interview, and no written waiver was ever obtained from J.M.C.
(See notes of testimony, 6/1/15 at 19-20, 29.) The juvenile court,
however, indicated in its June 30, 2015 opinion that Trooper Rush did in fact
issue constitutional rights warnings to J.M.C. on November 20, 2014, prior to
speaking with him. (See juvenile court opinion and order, 6/30/15 at 7
(stating, “[t]he second interrogation of [J.M.C.] does not overcome the
evidentiary taint by Trooper [Rush]’s issuance of a constitutional rights
warning.”).)
Thereafter, on December 1, 2014, State Trooper Nicole Mark
(“Trooper Mark”) and Schrode went to the victim’s home in Cumberland
County and spoke with the victim and his foster parents. (Notes of
testimony, 6/1/15 at 52-53, 61-63.) During the course of this interview, the
victim confirmed that he and J.M.C. had sexual contact when they resided in
the same foster home. (Id. at 9, 61; see also “Written Allegation,” 3/17/15
at 1-3.) On December 16, 2014, Rebecca Voss (“Voss”), a staff member
with the Over the Rainbow Children’s Advocacy Center, interviewed the
victim at the request of Schrode. (Notes of testimony, 6/1/15 at 37-39.)
Voss testified that she conducted a “blind” interview of the victim, noting
that she did not utilize any information about the incident, asked
-3-
J. A09012/16
open-ended questions, and did not specifically bring up J.M.C.’s name. (Id.
at 42-44.) The victim, however, was aware of why he was being interviewed
based upon his contact with Trooper Mark and Schrode two weeks earlier.
(Juvenile court opinion and order, 6/30/15 at 3; finding of fact no. 13.) The
victim was more forthcoming about the incidents in question during this
interview. (Notes of testimony, 6/1/15 at 55.)
On March 17, 2015, J.M.C. was charged with IDSI, unlawful contact
with a minor, and indecent assault of a person less than 13 years of age.2
On April 21, 2015, J.M.C. filed an omnibus pre-trial motion to suppress the
statements he made during treatment, as well as any evidence derived from
his admissions, including the statements of the victim. (See “Omnibus
Pre-Trial Motion to Suppress Evidence,” 4/21/15 at ¶¶ 19-20.) On June 1,
2015, the juvenile court conducted a hearing on J.M.C.’s suppression
motion. Following the hearing, the juvenile court granted J.M.C.’s
suppression motion on June 30, 2015. In reaching this decision, the juvenile
court reasoned as follows:
[J.M.C.’s] initial statement [on June 23, 2014]
was made without the protection of a constitutional
rights warning in derogation from criminal law
practice. The second interrogation of [J.M.C. on
November 20, 2014] does not overcome the
evidentiary taint by Trooper [Rush]’s issuance of a
constitutional rights warning. In essence, [J.M.C.]
was directed if he wanted to complete his court
supervision he had to come clean about this sexual
past. No amount of law enforcement warning would
2
18 Pa.C.S.A. §§ 3123(b), 6318, and 3126(a)(7), respectively.
-4-
J. A09012/16
nullify the Judge’s Order to [J.M.C.] to be compliant
with the people he dealt with while at Aldephoi
[Village]. The Aldephoi [Village] statements were
made in a confrontational style setting, which is to
say a custodial interrogation within the court
mandated facilities for [J.M.C.] This is a violation of
both the [Juvenile Act] and the Constitution;
therefore, the statements and all derivative evidence
obtained as a result of this interrogation must be
suppressed.
Juvenile court opinion and order, 6/30/15 at 7-8.
On July 23, 2015, the Commonwealth filed a timely notice of appeal,
certifying, pursuant to Pa.R.A.P. 311(d), that the June 30, 2015 order will
terminate or substantially handicap the prosecution. On July 27, 2015, the
juvenile court directed the Commonwealth to file a concise statement of
errors complained of on appeal, in accordance with Pa.R.A.P. 1925. The
Commonwealth filed its timely Rule 1925(b) statement on August 6, 2015.
The record reflects that the juvenile court did not file a Rule 1925(a) opinion.
On appeal, the Commonwealth raises the following issues for our
review:
I. Whether the juvenile court erred in
suppressing [J.M.C.’s] statements to
[Trooper Rush] and CYS worker [Schrode]
regarding [J.M.C.’s] sexual abuse of another
juvenile victim?
II. Whether the juvenile court erred in
suppressing the juvenile victim’s statements
and testimony regarding J.M.C.’s sexual abuse
because the statements and testimony relate
to the victim’s personal experience and
recollection which dissipates any taint
associated with [J.M.C.’s] disclosures?
-5-
J. A09012/16
Commonwealth’s brief at 2 (emphasis in original). For the ease of our
discussion, we have elected to address the Commonwealth’s claims
simultaneously.
“When reviewing the propriety of a suppression order, an appellate
court is required to determine whether the record supports the suppression
court’s factual findings and whether the inferences and legal conclusions
drawn by the suppression court from those findings are appropriate.”
In re O.J., 958 A.2d 561, 564 (Pa.Super. 2008), appeal denied, 989 A.2d
918 (Pa. 2009) (citation omitted). “Since Juvenile prevailed below, we
consider only the evidence of Juvenile and so much of the Commonwealth’s
evidence that is un-contradicted when read in the context of the entire
record.” In re T.P., 78 A.3d 1166, 1169 (Pa.Super. 2013), appeal denied,
93 A.3d 463 (Pa. 2014) (citation omitted). “Where the suppression court’s
factual findings are supported by the record, [the appellate court is] bound
by [those] findings and may reverse only if the court’s legal conclusions are
erroneous.” Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super.
2015), appeal denied, 135 A.3d 584 (Pa. 2016) (citation omitted; brackets
in original). However, “where the questions presented concern legal
questions, we are not bound by the suppression court’s determinations and
our standard of review is de novo.” In re T.P., 78 A.3d at 1169 (citation
omitted).
-6-
J. A09012/16
“The Juvenile Act, 42 Pa.C.S.A. § 6301[,] et seq., is designed to
effectuate the protection of the public by providing children who commit
‘delinquent acts’ with supervision, rehabilitation, and care while promoting
responsibility and the ability to become a productive member of the
community.” Commonwealth v. Brown, 26 A.3d 485, 491-492 (Pa.Super.
2011), citing 42 Pa.C.S.A. § 6301(b)(2). Section 6338 of the Juvenile Act
(“the Act”) codifies by statute the rights to confront witnesses, present
evidence, remain silent, and to be free from self-incrimination, as set forth
in the Fifth and Sixth Amendments of the United States Constitution and
Article I, § 9 of the Pennsylvania Constitution. Specifically, Section 6338(c)
governs statements and information obtained from juveniles during a
screening or assessment. This section provides, in relevant part, as follows:
No statements, admissions or confessions
made by or incriminating information obtained
from a child in the course of a screening or
assessment that is undertaken in conjunction with
any proceedings under this chapter, including, but
not limited to, that which is court ordered, shall
be admitted into evidence against the child on
the issue of whether the child committed a
delinquent act under this chapter or on the issue of
guilt in any criminal proceeding.
Id. at § 6338(c)(1) (emphasis added).
This court has recognized that allowing these types of statements to
be admitted into evidence would frustrate the Act’s underlying goals of
treatment and rehabilitation. See In re T.P., 78 A.3d at 1173.
-7-
J. A09012/16
The language of the Juvenile Act provisions in
question reveals that the Juvenile Act is intended to
foster truthfulness and full disclosure by a juvenile in
order to further treatment. By prohibiting
incriminating statements made during assessments
from being used in delinquency and adult
prosecutions, this goal is served—a juvenile can
freely disclose any transgressions without fear of his
statements being used in connection with additional
juvenile delinquency proceedings. The
Commonwealth’s position [that these statements
should be admissible] would defeat a critical
component of juvenile rehabilitation, foster suspicion
and the potential withholding of information by
juveniles, violate a duly-enacted statutory provision,
and give rise to possible constitutional concerns.
Id. at 1175-1176.
Instantly, the Commonwealth concedes that the statements J.M.C.
made during his court-ordered pre-polygraph interview and polygraph
examination were properly suppressed, pursuant to Section 6338(c)(1).
(Commonwealth’s brief at 7-10; see also notes of testimony, 6/30/15 at
68.) The Commonwealth, however, contends that J.M.C.’s post-polygraph
statements [on November 20, 2014], as well as those of the victim, were
admissible. (Commonwealth’s brief at 9-16.) In support of this contention,
the Commonwealth maintains that J.M.C.’s subsequent disclosures to
Trooper Rush and Schrode during the November 20, 2014 interview were
not illegally obtained in violation of Miranda, were not involuntary or
coerced, and were not inadmissible as “fruit of the poisonous tree.”
(Commonwealth’s brief at 9-16.) The Commonwealth further contends that
the juvenile court erred in suppressing the statements the victim made
-8-
J. A09012/16
during the December 1 and December 16, 2014 interviews because “[they]
relate to the victim’s personal experience and recollection which dissipates
any taint associated with [J.M.C.’s] disclosures.” (Id. at 17.) For the
following reasons, we disagree.
In In re C.O., a panel of this court recently addressed whether a
juvenile court erred in suppressing incriminatory statements that a juvenile
made to a youth counselor and CYS caseworker during the course of a
court-ordered treatment program. In re C.O., 84 A.3d 726, 731 (Pa.Super.
2014), appeal denied, 97 A.3d 742 (Pa. 2014). In ruling that the
questioning of the juvenile while in custody at a residential treatment facility
constituted an “interrogation” within the meaning of Miranda, the In re
C.O. court reasoned as follows:
To safeguard an uncounseled individual’s Fifth
Amendment privilege against self-incrimination,
suspects subject to custodial interrogation by law
enforcement officers must be warned that they have
the right to remain silent, that anything they say
may be used against them in court, and that they
are entitled to the presence of an attorney.
Juveniles, as well as adults, are entitled to be
apprised of their constitutional rights pursuant to
Miranda. If a person is not advised of his Miranda
rights prior to custodial interrogation by law
enforcement officers, evidence resulting from such
interrogation cannot be used against him. 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.
-9-
J. A09012/16
In order to trigger the safeguards of Miranda,
there must be both custody and interrogation.
Interrogation is defined as police conduct calculated
to, expected to, or likely to evoke [an] admission.
Moreover, [u]nder certain circumstances,
individuals who are not law enforcement
personnel nevertheless possess the status of
law enforcement for purposes of custodial
interrogation.
In re C.O., 84 A.3d at 731–732 (citations and internal quotation marks
omitted; brackets in original; emphasis added). The In re C.O. court held
that the juvenile’s statements were properly suppressed, noting that the
treatment counselor and CYS caseworker, while not police officers, were
required to provide Miranda warnings to the juvenile because they were
investigating him and their questions elicited incriminating responses that
formed the basis for the prosecution. In re C.O., 84 A.3d at 736.
Similarly, in the instant matter, the June 23, 2014 pre-polygraph
interview and examination wherein J.M.C. disclosed to the Adelphoi Village
treatment providers that he sexually assaulted the victim was the functional
equivalent of an interrogation, sufficient to trigger the protections of
Section 6338(c)(1). As in In re C.O., a component of J.M.C.’s court-ordered
sex offender treatment program required that he fully cooperate with the
treatment providers and disclose his past sexual history. During the course
of this examination, the treatment providers elicited inculpatory responses
from J.M.C., without the benefit of Miranda warnings. These statements
were subsequently reported to the DPW and led directly to a state police
- 10 -
J. A09012/16
investigation. Consequently, it logically follows that any statements or
evidence derived from this illegal interrogation, including those by J.M.C. in
a subsequent interview with Trooper Rush and Schrode, as well as any of the
allegations of the victim obtained as a direct result of J.M.C.’s court-
mandated disclosure, should be suppressed as “fruit of the poisonous tree.”
“The ‘fruit of the poisonous tree’ doctrine excludes evidence obtained
from, or acquired as a consequence of, lawless official acts.”
Commonwealth v. Johnson, 68 A.3d 930, 946 (Pa.Super. 2013) (citations
omitted). “A fruit of the poisonous tree argument requires an antecedent
illegality.” Id. (citation omitted). Courts in this Commonwealth have
repeatedly recognized that,
[w]e need not hold that all evidence is “fruit of the
poisonous tree” simply because it would not have
come to light but for the illegal actions of the police.
Rather, the more apt question in such a case is
whether, granting establishment of the primary
illegality, the evidence to which instant
objection is made has been come at by
exploitation of that illegality or instead by
means sufficiently distinguishable to be purged
of the primary taint.
Commonwealth v. Loughnane, 128 A.3d 806, 815 (Pa.Super. 2015)
(emphasis added), citing Commonwealth v. Cunningham, 370 A.2d 1172,
1176-1177 (Pa. 1977), quoting Wong Sun v. United States, 371 U.S. 471,
487-488 (1963).
Here, an antecedent illegality occurred, as the Adelphoi Village
treatment providers “possess[ed] the status of law enforcement for purposes
- 11 -
J. A09012/16
of custodial interrogation” at the time J.M.C. made the incriminating
statements. See In re C.O., 84 A.3d at 732. Moreover, the statements
given by J.M.C. on November 20, 2014, as well as any evidence derived
from this interview, were not purged of the primary taint of this initial illegal
interrogation. As the juvenile court aptly recognized in its opinion, “[t]he
second interrogation of [J.M.C. on November 20, 2014] d[id] not overcome
the evidentiary taint by Trooper [Rush]’s issuance of a constitutional rights
warning.” (See juvenile court opinion and order, 6/30/15 at 7.)
The state police were able to secure the victim’s statements about the
abuse as a direct result of J.M.C.’s initial disclosure that he sexually
assaulted a number of juveniles in 2009, and not through any independent
investigation or source. The application of the “independent source
doctrine” is only proper “where the independent source is to be truly
independent from both the tainted evidence and the police or investigative
team which engaged in the misconduct by which the tainted evidence was
discovered.” Commonwealth v. Henderson, 47 A.3d 797, 799 (Pa.
2012), cert. denied, 133 S.Ct. 435 (2012) (citation and internal quotation
marks omitted). Herein, the state police possessed no information as to any
victims or witnesses in this case, or that J.M.C. had even committed the
crimes in question, prior to the disclosures he made as part of his
court-ordered sex offender treatment program. Permitting the
Commonwealth to utilize J.M.C.’s statements under these circumstances, as
- 12 -
J. A09012/16
well as any evidence directly derived from these statements, would frustrate
the juvenile court’s ability to order sexual offender treatment that requires
full disclosure and render the protections afforded by Section 6338(c)(1) of
the Act futile. See In re T.P., 78 A.3d at 1175-1176.
Accordingly, we discern no error on the part of the juvenile court in
suppressing the inculpatory statements J.M.C. made during the course of a
court-ordered sex offender treatment program, as well as any evidence or
statements stemming from these admissions, including those of the victim.
Therefore, we affirm the juvenile court’s June 30, 2015 suppression order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2016
- 13 -