Commonwealth v. Brown

DISSENTING OPINION BY

COLVILLE, J.:

Despite the fact that Appellant’s right against self-incrimination was arguably in jeopardy before and during the transfer hearing, he failed to timely assert that right or otherwise raise an objection citing that right. Consequently, in my view, Appellant has waived the Fifth Amendment issues he wishes this Court to review, which are the sole issues presently before us. I, therefore, dissent.

At the transfer hearing, Appellant’s expert witness, Dr. Heilbrun, testified that, during his examination of Appellant, he asked Appellant whether he shot Kenzie Houk. Dr. Heilbrun stated that Appellant claimed he did not commit the shooting. When the Commonwealth questioned Dr. Heilbrun regarding the effect Appellant’s denial would have on the treatment plan or the possibility of recidivism, Dr. Heilbrun ultimately concluded that, if Appellant is *511found guilty and continues to deny culpability, “then that’s a problem for treatment.” N.T., 01/29/10, at 40. Appellant’s counsel did not object to the Commonwealth’s questions or to Dr. Heilbrun’s answers.

The Commonwealth also called an expert witness at the hearing, Dr. O’Brien. Dr. O’Brien testified that he conducted a psychiatric evaluation of Appellant in the presence of Appellant’s counsel. According to Dr. O’Brien, during that evaluation, he asked Appellant whether he was responsible for the shooting, and Appellant said no. Dr. O’Brien further testified that Appellant’s refusal to discuss the factual allegations regarding the shooting is consistent with his history of not taking responsibility for his wrongdoings. The doctor opined,

His avoidance of discussing the factual allegations responsible for his detention was consistent with what appeared in his record from the Thomas Center and also from his school records in terms of his not taking responsibility for things that he was caught doing.
And so that was consistent and that was something that was — that was noteworthy to me, only in that it was a consistency, that he is — he tends to avoid or reacts by avoiding taking responsibility, which, in my opinion, complicates the— the process of rehabilitation, because— and I agree with Dr. Heilbrun in this— that in order to be rehabilitated as a result of a conviction for a serious crime, you have to take responsibility for your behavior and then you have to allow yourself to go through the process of analyzing with a professional the underpinnings to your behavior and understanding those underpinnings and understanding what went wrong or what happened that resulted in the various array of things that were happening at the time of the offense to result in such a deviant type of behavior.

N.T., 03/12/10, at 29-30.

Later in Dr. O’Brien’s testimony, when he was asked about Appellant’s amenability to treatment, Dr. O’Brien made the following conclusions:

Well, again, as I said, it’s my opinion that he doesn’t have an illness that needs to be treated in a strictly mental illness sense, so he doesn’t require treatment of that sort. His amenability to rehabilitation, in my opinion, is very limited because of his — the various different factors I talked about, the tendency to minimize, to deny, to shift the blame and the — basically the posture that he’s in in connection with this case and the lack of incentive to ever actually come forward. The more support he gets, actually, the less likely he is to come forward, because it sort of — it makes it even more impossible for him to come forward and say, actually, you know, I did this and I’m sorry. And so I just don’t see — I don’t see any indication that that’s a likely outcome, and if you don’t have that outcome, then you haven’t taken the first step toward rehabilitation.

Id. at 36-37.

There is nothing of record which suggests that Appellant’s counsel objected to any questions Dr. O’Brien posed to Appellant during the doctor’s evaluation of Appellant. Furthermore, Appellant’s counsel never objected on Fifth Amendment grounds to any question asked of Dr. O’Brien or to any answer he provided.

The certified record demonstrates that, with counsel present, the Commonwealth’s expert witness directly asked Appellant whether he committed the crimes for which he was charged. The record further evinces that the hearing was fraught with references to Appellant’s unwillingness to *512admit to committing the crime and the effect of this unwillingness on his amenability to treatment. Yet, at no time during his examinations or the transfer hearing did Appellant assert his constitutional right against self-incrimination, nor did Appellant’s counsel object, citing a violation of Appellant’s right against self-incrimination, to any questions posed by the Commonwealth or answers provided by witnesses. Instead, Appellant waited until he filed his post-hearing brief in support of his petition to decertify to inject into the matter issues regarding his right against self-incrimination.

In that brief, Appellant maintained that Dr. O’Brien’s conclusions concerning Appellant were “based on an overriding concern and belief that unless the juvenile confesses, he cannot be counseled, treated, or rehabilitated.” Brief in Support of Appellant’s Petition to Decertify, 03/19/10, at 11. Appellant later stated, “There is no legal basis for the [cjourt to consider Dr. O’Brien’s assumption that unless a child confesses, the juvenile justice system is not an appropriate system for the case.” Id. at 12. Appellant then baldly asserted,

The Fifth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, is a fundamental right. To conclude that unless a juvenile confesses, he must be treated as an adult, places an impossible burden on a juvenile, his counsel, and any adult advising the child. In this case, the prosecution would have this [cjourt believe that a juvenile, whether innocent or not, must confess if charged with a serious crime such as murder or be subjected to adult punishment, in this case life imprisonment without the possibility of parole. A conclusion of this nature is a clear violation of the Fifth Amendment to the United States Constitution, Article 1 § 9 of the Pennsylvania Constitution, and the very concept of our system of justice.

Id. at 13.

Contrary to Appellant’s argument, a legal basis did exist for the trial court to consider Dr. O’Brien’s testimony regarding Appellant’s history of being unwilling to take responsibility for his wrongdoings and the effect that unwillingness has on Appellant’s amenability to treatment. Simply stated, Dr. O’Brien’s testimony in this regard was unobjected-to evidence of record. If Appellant believed Dr. O’Brien’s testimony was offensive to his right against self-incrimination, then Appellant should have lodged a timely objection or asserted his right against self-incrimination. Because he did neither, Appellant waived any issues concerning this right. See Commonwealth v. Baumhammers, 599 Pa. 1, 960 A.2d 59, 73 (2008) (“It is axiomatic that issues are preserved when objections are made timely to the error or offense.”).

Citing to a case from the Supreme Court of Kansas, State v. Brown, 286 Kan. 170, 182 P.3d 1205 (2008), the Majority concludes that Appellant did not waive his Fifth Amendment issues. The Majority opines,

Since the trial court’s decision subjected Appellant to the classic “penalty situation,” Appellant’s privilege against self-incrimination became self-executing, and Appellant need not have formally asserted the privilege at a prior time to claim its protection.

Majority Opinion at 508-09 (citing Brown, 182 P.3d at 1210-11). I am unable to agree with this opinion.

As an initial matter, I disagree with the manner in which the Majority characterizes the trial court’s decision. More specifically, I cannot agree with the Majority’s conclusion that the trial court required *513Appellant to admit that he committed the shooting in order to demonstrate that he is amenable to treatment and capable of rehabilitation. The essence of the trial court’s determination regarding Appellant’s amenability to treatment is evidenced by the following passage from the court’s opinion:

Thus, from both expert witnesses we find agreement on the conclusion that rehabilitation requires taking responsibility for the underlying offense; and, persuasive reasoning from [the Commonwealth’s expert] that taking responsibility is unlikely to occur, thus making the prospects of rehabilitation within the confines of juvenile court jurisdiction likely to be unsuccessful.

Trial Court Opinion, 03/29/10, at 15.

In my view, this statement does not demonstrate that the trial court applied 42 Pa.C.S.A. § 6355(a)(4)(iii)(G) in a way that violated Appellant’s right against self-incrimination. Instead, in assessing Appellant’s amenability to treatment, the court determined as matters of fact that: (1) taking responsibility for an underlying offense is of paramount importance to treatment and rehabilitation; (2) Appellant has yet to take responsibility for the shooting; and (3) given Appellant’s history of failing to take responsibility for his wrongdoings, treatment and rehabilitation were not likely to succeed in Appellant’s ease. These findings of fact are supported by the record. As I noted above, Dr. Heilbrun testified that Appellant’s continued denial of culpability for the shooting if he is found guilty would be a problem for treatment. Furthermore, Dr. O’Brien testified that Appellant had a history of not taking responsibility for his wrongdoings, which, according to the doctor, limits his amenability to treatment.

Lastly, I am unable to conclude that this case presents a “classic penalty situation.” Using Brown as the standard, I first note that “[t]he general rule is that an individual must affirmatively assert his or her right against self-incrimination or else the law will consider the individual to have waived the right.” Brown, 182 P.3d at 1210 (citing Minnesota v. Murphy, 465 U.S. 420, 429, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984)). “Some exceptions to this general rule exist, and there are situations where the right against self-incrimination is ‘self-executing.’ ” Brown, 182 P.3d at 1210 (citing Murphy, 465 U.S. at 429-34, 104 S.Ct. 1136). The right against self-incrimination may be “self-executing” when a “classic penalty situation” has occurred. Brown, 182 P.3d at 1210.

In a “classic penalty situation,” the State threatens a person with punishment if that person asserts or desires to invoke his or her right against self-incrimination. See U.S. v. Warren, 338 F.3d 258, 264 (3rd Cir.2003) (“The Supreme Court has decided a string of so-called ‘penalty cases that hold that the government may not impose a penalty on a person for asserting his or her Fifth Amendment privilege.”); Brown, 182 P.3d at 1210 (“In each of the so-called ‘penalty’ cases, the State not only compelled an individual to appear and testify, but also sought to induce him to forgo the Fifth Amendment privilege by threatening to impose economic or other sanctions ‘capable of forcing the self-incrimination which the Amendment forbids.’ ”) (quoting Murphy, 465 U.S. at 434, 104 S.Ct. 1136). If the threatened person succumbs to the State’s pressure by incriminating himself, then the right is “self-executing” insomuch as “the constitutional privilege against self-incrimination may be asserted at a later time to suppress the statements made under State compulsion.” Brown, 182 P.3d at 1210 (citing State v. Evans, 144 Ohio App.3d 539, 760 N.E.2d 909 (2001)).

*514Here, the trial court did not punish Appellant for invoking or stating a desire to invoke his right against self-incrimination. In fact, as I discussed above, there is no evidence of record that Appellant ever sought to invoke that right. Instead, consistent with Dr. O’Brien’s testimony, the trial court considered Appellant’s denial of the shooting to weigh negatively against his amenability to treatment because Appellant has a history of deflecting responsibility for his wrongdoings. Appellant was never threatened with a penalty if he chose to assert his right against self-incrimination. Moreover, Appellant has never asserted his right against self-incrimination in an attempt to suppress statements he made under State compulsion.

When Dr. O’Brien evaluated Appellant, Appellant’s counsel was armed with the knowledge that the doctor would testify for the Commonwealth. Counsel nonetheless allowed Dr. O’Brien to directly question Appellant regarding his guilt in the shooting of Ms. Houk. Any questions Dr. O’Brien asked Appellant regarding his actions on the day of the shooting had the potential to elicit incriminating answers from Appellant. Yet, nothing of record demonstrates that counsel suggested to Appellant that he assert his right against self-incrimination. Moreover, counsel never objected at the hearing on the grounds that testimony violated, or had the potential to violate, Appellant’s right against self-incrimination. The record before us is silent as to why counsel chose to allow this evidence into the record; we can only presume counsel believed this evidence would help carry Appellant’s burden of proof. In any event, this silence has led me to conclude that Appellant failed to preserve the Fifth Amendment issues he presents to this Court.

This case has brought to my attention important and complex questions as to the interplay between the Fifth Amendment and the juvenile decertification and transfer process. For instance, the transfer and decertification process seems to benefit from a juvenile’s willingness to submit to psychological or psychiatric evaluation. Yet, it is unclear to me whether a juvenile who cooperates with such a process is provided with adequate protection of the juvenile’s fundamental right against self-incrimination. While the answer to this question is undoubtedly important, neither the question that would prompt such an answer nor any questions Appellant presents on appeal are properly before this Court.

For these reasons, I would affirm the trial court’s order.