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05/22/97 COMMONWEALTH PENNSYLVANIA v. LARRY R. FOX

May 22, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
LARRY R. FOX, APPELLEE



Appeal from the Order of the Court of Common Pleas of Clarion County, Criminal Division at No. 253 C.R. 1995. Before ALEXANDER, J.

Before: Del Sole, Popovich and Hester, JJ. Opinion BY Popovich, J.

The opinion of the court was delivered by: Popovich

OPINION BY POPOVICH, J.:

FILED: MAY 22, 1997

This is an appeal by the Commonwealth from the order of the Court of Common Pleas of Clarion County which suppressed the inculpatory statements which appellant, Larry Fox, made to police concerning his alleged sexual intercourse with his minor daughter. Upon review, we find that the lower court erred in suppressing appellee's statements, and, accordingly, we reverse the suppression court's order and remand for trial.

Herein, the Commonwealth complains: 1) The trial court erred in finding that appellee was in custody at the time of his interrogation; 2) The trial court erred in finding that appellee was not advised of the nature of the interrogation prior to its initiation by Trooper Davis of the State Police, and, consequently, appellee's waiver of his Miranda rights was not effective; 3) The trial court erred in suppressing appellee's voluntary statement to State Trooper John Krajnikovich of the State Police. *fn1

In Commonwealth v. Romine, 453 Pa. Super. 42, 47, 682 A.2d 1296, 1298 (1996), we set forth the standard of review to be applied when the Commonwealth appeals an adverse suppression ruling as follows:

we must determine whether the factual findings are supported by the record and, assuming there is support in the record, we are bound by the facts and may reverse if the legal Conclusions drawn from those facts are in error. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985), cert. denied, 474 U.S. 950, 106 S. Ct. 349, 88 L. Ed. 2d 297 (1985)

Commonwealth v. Shiflet, 431 Pa. Super. 444, 447, 636 A.2d 1169, 1170 (1994).

Applying the foregoing standard to the case before us, we find that the record reveals these facts as set forth by the lower court as follows:

On March 9, 1995 Trooper Louis Davis (Trooper Davis) of the Pennsylvania State Police received a telephone call from a caseworker at Clarion County Children and Youth Services (CYS) informing him that a child had reported to a school counsellor that she had been sexually molested by her father and requesting Trooper Davis to accompany the caseworker to the initial interview. On the same day Trooper Davis and the CYS caseworker went to Defendant's residence in Shippenville, Pennsylvania and, in the presence of her mother, interviewed Defendant's 14 year old daughter (the Victim).

The Victim told Trooper Davis that Defendant had been sexually molesting her since she was 7 or 8 years old, but Trooper Davis was only able to specifically identify and describe three separate occasions for the purpose of filing charges. Trooper Davis charged the Defendant with acts which took place from March 1, 1992 to March 3, 1992, which acts were the basis for charges of Involuntary Deviate Sexual Intercourse (18 Pa.C.S.A. § 3123 (5), Statutory Rape (18 Pa.C.S.A. § 4122), and Indecent Assault (18 Pa.C.S.A. § 3126(a) (6)). Defendant was also charged with acts committed in May of 1994 constituting Statutory Rape (18 Pa.C.S.A. § 4122), Indecent Assault (18 Pa.C.S.A. § 3126 (a) (6)), Incest (18 Pa.C.S.A. § 4302) and two counts of Aggravated Indecent Assault (18 Pa.C.S.A. § 3125 (1) (6)). Trooper Davis also charged Defendant with the crime of Indecent Assault (18 Pa.C.S.A. § 3126(a) (1)) which allegedly took place in February of 1995.

Trooper Davis knew Defendant because Defendant was employed by the Department of Transportation and worked in a building next door to the police barracks approximately two miles from Defendant's house, and Defendant also had a part time job as a mechanic and worked on state police vehicles. ...


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