Appeal from the Order entered May 13, 1986 in the Court of Common Pleas of Philadelphia County, Juvenile Division, Nos. 0559-86-1, 1246-86-2, 0700/01/02-86-1.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
Beck, Kelly and Hoffman, JJ. Hoffman, J., files a dissenting opinion.
[ 370 Pa. Super. Page 352]
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
[ 370 Pa. Super. Page 353]
burglary offense). Post-adjudication motions were denied. Timely notice of appeal was filed, and this appeal is now properly before this Court for disposition.
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, 504 Pa. 511, 475 A.2d 1283 (1984).*fn1 We find no merit in these contentions.
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. Newman,
[ 370 Pa. Super. Page 354323]
Pa. Super. 394, 470 A.2d 976 (1984). The mere fact that public records indicate that appellant was incarcerated on the date that two of the eleven burglaries took place does not conclusively establish that he could not have committed the burglaries. The records could be in error, appellant could have been incarcerated after the offense were committed on those days, or he could have been released or otherwise absent from the facilities at any time on those dates. The doctrine upon which appellant bases his first claim simply does not apply. We note that appellant's confessions regarding both of the burglaries in question contained specific details regarding the burglaries which were corroborated by the victims' reports of those burglaries, including details regarding the method of entry and items stolen. (See Commonwealth Exhibits Nos. 2 and 3; N.T. 3/20/86 at 86, 116). Thus, we reject appellant's first contention on appeal.
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, 355 Pa. Super. 123, 140-41, 512 A.2d 1242, 1251 (1986).
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
[ 370 Pa. Super. Page 355]
Center while appellant voluntarily assisted the officers in identifying the scenes of the various burglaries was not unreasonable. We note that the court which issued the order (which appellant claims had been violated) took no action to enforce its order or sanction the ...