Lead Opinion
Appellant, Corey Parks, appeals from his adjudication of delinquency in connection with eleven burglary offenses. We affirm.
Appellant is a sixteen year old juvenile. On the afternoon of January 23, 1986, appellant and another youth were arrested in the vicinity of a burglary which occurred approximately twenty minutes earlier. Stolen property was recovered from the juveniles at the time of the arrest. On January 23, 1986 and January 28, 1986, appellant made three detailed confessions regarding his participation in numerous burglaries. On May 1, 1986, appellant’s motion to suppress his confessions was denied. On May 13, 1986, appellant was adjudicated delinquent on all eleven petitions presented to the juvenile court (each alleging a single
Appellant contends on appeal that: based upon the doctrine of incontrovertible facts the evidence is insufficient to sustain the adjudications with regard to two of the eleven burglary offenses; appellant was subjected to an unreasonable search and seizure when he was driven around the city by the police to point out the locations of burglaries he had committed, as the police were in violation of an order directing the police to transport appellant for charging and then return him to the youth study center; appellant’s rights under 42 Pa.C.S.A. § 6326(a) and Pa.R.Crim.P. 122 and 130 were violated by holding appellant for investigation and interrogation on January 23, 1986 and January 28,1986, before returning appellant to the Youth Study Center; and finally, the trial court erred in failing to suppress appellant’s detailed confessions based upon the Commonwealth’s failure to meet its burden of proof that appellant made a voluntary, knowing and intelligent waiver of his Miranda rights under the totality of the circumstances test established in Commonwealth v. Williams,
I.
Appellant first contends that based upon the incontrovertible facts doctrine, the evidence is insufficient to sustain the adjudications with respect to two of the burglary offenses. Appellant argues that because public records indicate appellant was incarcerated at the Youth Study Center on the days that two of the burglaries were alleged to have occurred, the incontrovertible facts doctrine applies. We cannot agree.
The incontrovertible facts doctrine applies, if at all, only when an undisputed fact negates the existence of a required element of an offense. Commonwealth v. New
II.
Appellant next contends that he was subjected to an unreasonable search and seizure when he was driven around the city by police to point out the locations of his numerous burglaries, as the police were allegedly in violation of an order directing the officers to take appellant for charging and then return him to the Youth Study Center. Appellant’s contention, however, was waived by appellant’s failure to raise this issue/theory in the juvenile court during the suppression hearing. It is axiomatic that appellate courts will not entertain for the first time on appeal issues or theories not posited first in the courts below. Commonwealth v. Johnson,
Moreover, we note that the juvenile court found, as fact, that after being charged and prior to his return, appellant initiated a conversation with the investigating officers and indicated a desire to make a statement regarding the burglaries. Under these circumstances, the subsequent delay in returning appellant to the Youth Study
III.
Appellant next contends that the police violated appellant’s rights pursuant to 42 Pa.C.S.A. § 6326(a), Pa.R. Crim.P. 122, and Pa.R.Crim.P. 130 by unreasonably detaining appellant on January 23, 1986 and January 28, 1986 for questioning before returning him to the Youth Study Center. Appellant argues that the statements made during these interrogations should have been suppressed. We cannot agree.
Appellant voluntarily offered to make statements regarding various burglaries immediately after his arrest was processed, and again after a subsequent arraignment. Our review of the record discloses no unnecessary delay as envisioned by 42 Pa.C.S.A. § 6326, Pa.R.Crim.P. 122, or Pa.R.Crim.P. 130. Rather, any delay was the consequence of the number of separate crimes to which appellant confessed. We see nothing unreasonable in the delay occasioned by the officers driving appellant to the scene of the burglaries at appellant’s request in order that specific addresses could be determined. (Commonwealth Exhibit No. 3, at 3) (“I could do better if you take me around my route and I can show them to you”). We also note that a portion of the alleged delays was occasioned by the officers’ efforts to enable appellant to speak with an “interested adult” whom appellant had falsely identified as his mother, then later as his aunt and guardian. (N.T. 3/20/86 at 37-38, 50, 56-7, 141 & 147). Succinctly, the confessions were not the product of delay, nor were the delays occasioned by the confessions unreasonable. Compare In Interest of Anderson,
IV.
Finally, appellant contends that the Commonwealth failed to meet its burden to establish by the preponderance of the evidence that under the totality of circumstances, appellant’s waiver of Miranda rights and subsequent confessions were knowingly, intelligently, and voluntarily made. Appellant argues that there was no evidence presented regarding appellant’s age, experience, or comprehension and that the purported opportunity to consult with an interested adult was inadequate; and therefore, the suppression court erred in finding that the confessions were admissible. We cannot agree.
In Commonwealth v. Williams,
The requirements of due process are satisfied, and the protection against the use of involuntary confessions which law and reason demand is met by application of the totality of circumstances analysis to all questions involving the waiver of rights and the voluntariness of confessions made by juveniles. All of the attending facts and circumstances must be considered and weighed in determining whether a juvenile’s confession was knowingly and freely given. Among those factors are the juvenile’s youth, experience, comprehension, and the presence or absence of an interested adult.
Our scope of review of trial court decisions regarding the decision of a trial court on suppression issues is limited primarily to questions of law; we are bound by the trial court’s findings of fact if those findings are supported by the record. In determining whether the findings of fact are supported by the record, we are to consider only the evidence of the appellee and so much of the evidence of the appellant as remains uncontradicted. It is for the suppression court as the trier of fact, rather than the reviewing court, to determine credibility. Commonwealth v. White,
The record discloses that appellant was physically present at the suppression hearing (N.T. 3/20/86 at 82, 111); he was described by a witness as being in his teens (N.T. 3/20/86 at 20); and appellant’s age, 16, was indicated on several of the forms admitted as exhibits in the suppression hearing. {See Commonwealth Exhibits Nos. 1-3; Defense Exhibit No. 1). There was ample evidence presented to permit consideration of appellant’s age.
The record discloses that appellant, sometimes alone and sometimes with others, burglarized numerous homes over a period of several months (N.T. 3/20/86 at 40, passim; Commonweatlh Exhibits Nos. 1-3); appellant was previously known to the police, the police had his name and his
The record further discloses that appellant could read and write (N.T. 3/20/86 at 96, 117-118); in two of appellant’s confessions appellant specifically stated that he could read and write. (See Commonwealth Exhibit No. 1 at 3; Commonwealth Exhibit No. 2 at 3). He had sufficient perception, memory, and intellect to recall and describe to the officers details of numerous crimes and to direct them to the locations where they occurred. (N.T. 3/20/86 at 40, passim; Commonwealth Exhibits Nos. 1-3). Appellant was given his Miranda rights in simple, easy to understand language several times and each time indicated his willingness to waive his rights and to make statements. (Commonwealth Exhibits Nos. 1-3). We find there was a sufficient basis for the trial court to evaluate appellant’s ability to comprehend his rights and his waiver of those rights. With regard to the first three prongs of the four prong Williams test, we find the absence of litany responses to a colloquy regarding appellant’s age, experience, and comprehension did not impede consideration of those factors by the suppression court in the instant case.
We find no error of law in the trial court’s conclusion that under the totality of circumstances test announced in Commonwealth v. Williams, supra, the detailed confessions made by appellant were admissible. We note that appellant specifically stated in his confessions that he was not illiterate, intoxicated, under the influence of drugs, promised special treatment, or in any way coerced by the police. (Commonwealth Exhibits Nos. 1-3). No evidence was produced to disprove or to call those statements into question. Appellant’s fourth and final contention is without merit.
CONCLUSION
Based upon the foregoing, the order is affirmed.
Notes
. Appellant also argued in the trial court that his original detention and arrest were illegal; he has not raised this contention on appeal.
. Williams expressly overruled Commonwealth v. Christmas,
Dissenting Opinion
dissenting:
After carefully reviewing the record in this case, I conclude that I must dissent from the majority’s conclusion that the Commonwealth met its burden of proving that appellant’s confessions were made knowingly, intelligently, and voluntarily.
On January 23, 1986, appellant was arrested and charged with burglary. He was given Miranda warnings and then transported to the home of Lenora Figueroa, whom appellant had indicated was his mother. After learning that Ms. Figueroa was not at home, the police telephoned her at work. She told police that she was not appellant’s mother, but rather his aunt.
On January 28, 1986, appellant was arrested on additional burglary charges. He was given Miranda warnings and then driven to Ms. Figueroa’s home. The police again telephoned Ms. Figueroa at work and she gave the officer permission to question appellant. Appellant did not speak to Ms. Figueroa. Two police officers then drove appellant through the neighborhood and appellant pointed out additional homes he had burglarized. He then signed another
Appellant filed a motion to suppress his statements to the police and, following a hearing, the motion was denied. He was adjudicated delinquent on eleven charges of burglary following a hearing at which evidence was entered by stipulation. Appellant was committed to two years at Corn-wells Heights Security Unit and this appeal followed.
Appellant contends that the lower court erred in denying his motion to suppress his statements because the Commonwealth failed to meet its burden of proof that the confessions were the product of a knowing, intelligent, and voluntary waiver of his Miranda rights. I agree.
At a suppression hearing, the Commonwealth bears the burden of proving by a preponderance of the evidence that the challenged evidence was not obtained in violation of the accused’s rights. Commonwealth v. Otto, 343 Pa.Superior Ct. 457, 459 n. 1,
In Commonwealth v. McCutchen,
The requirements of due process are satisfied, and the protection against the use of involuntary confessions which law and reason demand is met by application of the totality of the circumstances analysis to all questions involving the waiver of rights and the voluntariness of confessions made by juveniles. All of the attending facts and circumstances must be considered and weighed in determining whether a juvenile’s confession was knowingly and freely given. Among those factors are the juvenile’s youth, experience, comprehension, and the presence or absence of an interested adult.
Commonwealth v. Williams, supra,
Applying a totality of the circumstances analysis, I find a dearth of evidence to support the conclusion that the Commonwealth proved that appellant's statement was voluntary. First, I note that appellant was not given an opportunity to consult with an interested adult. Ms. Figueroa was not present at any of the interrogations. Additionally, appellant was never given the opportunity to consult with her. While the lower court found that Ms. Figueroa gave the police her permission to question appellant, Lower Court Opinion at 23,1 would conclude that her mere permission to question appellant is insufficient to render his confession voluntary. The presence of an interested adult has been deemed important by our courts not because the adult must give the police permission, but rather because it gives the juvenile an opportunity, after the adult has been ap
The lower court concluded, however, that the fact that appellant never spoke with Ms. Figueroa was irrelevant because “he did have the ‘opportunity’ to speak with her but chose not to.” Lower Court Opinion at 23. I disagree. The testimony at the suppression hearing does not support the conclusion that appellant was given the opportunity to speak with Ms. Figueroa. Officer O’Connor testified that on January 23, 1986, the telephone connection was broken before his conversation with Ms. Figueroa was completed and that he did not try to call her back. N.T. March 20, 1986 at 56. Officer Maahs testified that on January 28, 1986, appellant replied “Fine, let’s go” when told that Ms. Figueroa had given the officer permission to take a statement from him. Id. at 121. It is apparent, therefore, that appellant was never asked if he wished to speak with Ms. Figueroa. Thus, it follows that he never made a choice not to speak with her.
The effect of the lower court’s conclusion that appellant’s confession was voluntary because he did not request to speak with Ms. Figueroa is to take away from the police the burden of protecting a juvenile’s rights and to place an affirmative burden on the juvenile to demand that the police give him or her the opportunity to consult with an interested adult. I cannot tolerate this result. The very purpose of allowing a juvenile the opportunity to speak with an interested adult is that a juvenile, because of his or her age, may not be able to comprehend the gravity of the situation and make a decision regarding his or her rights that would be in his or her best interests. For this reason, it would be incongruous for this Court to assume that the same juvenile who may be too young to waive his or her rights is mature
Although absence of an opportunity to consult with an interested adult is not conclusive proof that a juvenile’s confession was made voluntarily, see Commonwealth v. Williams, supra, the Commonwealth has failed to present any evidence of other Williams factors that would indicate that appellant’s confessions were voluntary. No formal evidence of appellant’s age or prior record was introduced. Moreover, no evidence was introduced regarding appellant’s education level, reading ability, or general intelligence. Although the lower court acknowledged that appellant’s education level is uncertain, it concluded that “it is at least clear that [appellant] was able to read since he read his statement in front of the police officer.” Lower Court Opinion at 19 (citing N.T. March 20, 1986 at 41). At best, the testimony of the police officer indicates that it appeared that appellant was able to read his statement. Appellant did not read his statement aloud to the police and it does not appear that any one asked appellant if he could read before giving him his statement to read and sign.
The lower court also concluded that “[c]ertainly, the [appellant’s] physical condition was normal at the time of his arrest and detention. Nor was the [appellant] subjected
. Testimony at the suppression hearing revealed that Ms. Figueroa was not related to appellant nor was she his legal guardian. Ms. Figueroa testified that appellant was her son’s friend and that he spent the night at her house and had meals there frequently for several months prior to his arrest. N.T. March 20, 1986 at 145-49.
. The lower court also concludes that the police procedure was proper in this case because "telephonic participation has been approved” by our courts in Commonwealth v. Webster,