Appeal from the Judgment of Sentence February 20, 2007 In the Court of Common Pleas of Lackawanna County Criminal at No(s): CP-35-CR-0000582-2006.
The opinion of the court was delivered by: Stevens, J
BEFORE: STEVENS, FREEDBERG, and POPOVICH, JJ.
¶ 1 Melissa Baker challenges a February 20, 2007 judgment of sentence entered in the Court of Common Pleas of Lackawanna County. We affirm.
¶ 2 Baker was charged with aggravated assault, endangering the welfare of children, and simple assault as the result of her abuse of E.B. and J.B., her two minor step children, culminating in an attack on then three year old E.B. which broke E.B.'s arm.*fn1 Baker filed omnibus pretrial motions, seeking suppression of evidence, and the Commonwealth filed an answer in response. Pretrial motion filed 5/8/06; Answer filed 5/18/06. The Commonwealth then filed a "Notice of Commonwealth's Intent to Introduce Evidence of Other Crimes, Wrongs, or Acts Pursuant to Rule 404(b)" and a notice of its intent to introduce the out of court statements of the children pursuant to 42 Pa.C.S.A. § 5985.1.*fn2 Baker did not file an answer to either of the Commonwealth's notices. On September 18, 2006, the trial court denied Baker's suppression request, and granted the Commonwealth's request to introduce the prior bad act evidence. Order filed 9/18/06. The question regarding the children's testimony was left until trial.
¶ 3 A jury trial commenced on November 13, 2006, and lasted five days.*fn3
Baker was subsequently found guilty on November 21, 2006. She was sentenced on February 20, 2007, to an aggregate term of seven and one half to 16 years' imprisonment. Baker subsequently filed post-sentence motions, but the motions were denied and she now appeals her judgment of sentence to this Court, asking us to determine the following:
1. Whether the Trial Court erred in failing to suppress the Defendant's statements to the Pennsylvania State Police?
2. Whether the Trial Court erred in admitting evidence of prior bad acts, involving the relationship between the Defendant and Jennifer Tyme, as evidence of Motive and Intent?
3. Whether the Trial Court erred in allowing the commonwealth to play a DVD of a child, on rebuttal, as a prior consistent statement?
4. Whether the Trial Court erred in failing to instruct the jury on prior inconsistent statements of J.B.?
5. Whether the Trial Court erred in failing to instruct the jury on the voluntariness of the Defendant's statements admitted at the time of trial?
6. Whether the Trial Court erred in failing to merge the sentence received by the Defendant?
7. Whether the Trial Court abused its discretion in imposing a sentence which exceeded the Pennsylvania Sentencing Guidelines which was manifestly excessive and failed to state sufficient reason on the record for such sentence?
¶ 4 Baker's first claim challenges the denial of her request to suppress statements she made to police. Baker specifically avers that she was interrogated by police without being given Miranda warnings, in violation of her federal and state constitutional rights. A hearing addressing Baker's pre-trial motions, including this suppression request, was held on May 25, 2006, and on September 18, 2006 the lower court refused to suppress her statements.
When we review the ruling of a suppression court we must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are error.
Commonwealth v. Mayhue, 536 Pa. 271, 300, 639 A.2d 421, 435 (1994). Viewed as directed by this standard, the evidence presented during the pre-trial hearing reveals the following: Pennsylvania State Police Trooper Patrick McGurrin testified that he had received a report from Children and Youth Services, relaying suspicions that E.B.'s broken arm was the result of child abuse at the hands of Baker. N.T. 5/25/06 at 4, 14-15. As part of his investigation of the suspected abuse, Trooper McGurrin telephoned Baker and asked if she would come to the police station to be interviewed regarding E.B.'s injury. Id. at 5, 14. Baker consented, and appeared at the station with her two biological children. Id. at 5-6. One of the station's clerks watched Baker's children in the next room while she was interviewed by Trooper McGurrin and Corporal Ben Clark. Id. at 7, 16. The rooms were separated by a window, through which the children could be heard, and Baker was agreeable to this arrangement. Id. at 7, 20, 26. During the interview, the door to the interview room was closed, but not locked, and Baker was not restrained in any way. Id. at 7-8. Baker was seated closest to the door, with her back to it. Id. at 18.
¶ 5 Trooper McGurrin began the interview by thanking Baker for coming, and explaining to her that she was not in custody, was not under arrest, and was free to end the interview at any time. Id. at 9. He also told her that no matter what she said during the interview, she would not be going to jail that day. Id. After hearing these explanations, Baker agreed to continue the interview. Id. Trooper McGurrin specifically testified that Baker was never told that there would be any consequences if she refused to participate in the interview. Id. at 10-11. The interview lasted an hour and forty minutes. Id. at 22. During the course of the interview, Baker initially denied having any knowledge of how E.B.'s arm was broken, but eventually admitted that she had inflicted the injury by grabbing and pulling the child's arm. Id. at 11-12, 16.
¶ 6 At some point during the interview, Baker said she did not want to talk anymore, and Corporal Clark stood up and opened the door to the interview room. Id. at 13. Baker then stated that she wanted to talk to Trooper McGurrin, not Corporal Clark, and continued speaking. Id. Eventually, Baker again indicated that she was "done talking." Id. at 13-14. At that point the three left the room, and Baker retrieved her children and left the station. Id. Trooper McGurrin specifically testified that Baker was never told that if she did not tell the truth she could lose her children. Id. at 18.
¶ 7 The crux of Baker's suppression claim is that because she believed that she was not free to leave, she was in "custody" and Miranda warnings were required. We disagree.
The warnings articulated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), become mandatory whenever one is subjected to custodial interrogation. The United States Supreme Court has defined custodial interrogation as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. See also Commonwealth v. Meyer, 488 Pa. 297, 412 A.2d 517 (1980).
Commonwealth v. Brown, 583 A.2d 805, 809-810 (Pa. Super. 1990). "Police detentions only become custodial when, under the totality of the circumstances, the conditions and/or duration of the detention become so coercive as to constitute the functional equivalent of formal arrest." Id. at 810.
Whether a person is in custody for Miranda purposes depends on whether the person is physically [deprived] 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. Moreover, the test for custodial interrogation does not depend upon the subjective intent of the law enforcement officer interrogator. Rather, the test focuses on whether the individual being interrogated reasonably believes his freedom of action is being restricted.
Commonwealth v. Levanduski, 907 A.2d 3, 24-25 (Pa. Super.2006) (citing Commonwealth v. Williams, 539 Pa. 61, 74, 650 A.2d 420, 427 (1994) (internal citations omitted); Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999) (en banc) (internal citations omitted)).
The factors a court utilizes to determine, under the totality of the circumstances, whether a detention has become so coercive as to constitute the functional equivalent of arrest include: the basis for the detention; its length; its location; whether the suspect was transported against his or her will, how far, and why; whether restraints were used; whether the law enforcement officer showed, threatened or used force; and the investigative methods employed to confirm or dispel suspicions. The fact that a police investigation has focused on a particular individual does not automatically trigger "custody," thus requiring Miranda warnings.
Levanduski, 907 A.2d at 25.
¶ 8 Here, we find that under the totality of the circumstances, Baker's interview with the police did not become the functional equivalent of an arrest. Of particular significance, we note that she was not transported against her will, but agreed to meet with the investigators. At the beginning of the interview, it was specifically explained to Baker that she was free to leave whenever she chose to, and she was seated in a position where the investigators were not blocking her access to the unlocked door of the room in any way. Baker was not handcuffed, shackled or otherwise restrained. The interview itself was not overly lengthy, lasting only an hour and forty minutes. During the interview, neither investigator used threats, force or intimidation. Trooper McGurrin clearly testified that Baker was never threatened with the loss of her children if she failed to tell the truth. Finally, true to their word, the investigators ended the interview when Baker indicated she was done talking, and at that point she left the station. Because Baker was not in custody, it was not necessary to give her Miranda warnings, and the trial court committed no error in refusing to suppress her statements on these grounds.
¶ 9 Baker next suggests that the trial court erred in admitting evidence of prior bad acts, involving the relationship between Baker and Jennifer Tyme, the children's biological mother, as evidence of motive and intent. Appellant's brief at 16-17.*fn4 We find this claim waived on several grounds.
¶ 10 Initially, we note that Baker never asserts that she actually objected to the introduction of the evidence she now claims was erroneously admitted. The lower court docket sheet contains no references to any answers, objections or responses filed by Baker to the Commonwealth's Notice of Intent to introduce the evidence under Pennsylvania Rule of Evidence 404(b). Further, in violation of Pa.R.A.P. 2117(c) and 2119(e),*fn5 Baker's brief fails to point to the location in the record showing that a challenge to the introduction of the evidence was raised before the trial court.*fn6
¶ 11 Because Baker failed to raise this claim before the trial court, it is waived. Pa.R.A.P. 302;*fn7 Pa.R.Crim.P. 720(b)(1)(C);*fn8 Commonwealth v. Henkel, 938 A.2d 433, 445 (Pa. Super. 2007), appeal denied by 955 A.2d 356 (Pa. 2008); Commonwealth v. Mawhinney, 915 A.2d 107, 109 fn. 1 (Pa. Super. 2006), appeal denied, 594 Pa. 677, 932 A.2d 1287 (2007).
¶ 12 Baker also argues that it was error for the trial court to allow the Commonwealth to play a DVD of a child, on rebuttal, as a prior consistent statement. Appellant's brief at 23. The DVD consisted of a recording of J.B.'s December 29, 2005 interview with Dr. Andrea Taroli, a forensic pediatrician who had examined and interviewed J.B. at the behest of the agencies investigating the child abuse allegations in question here. N.T. 11/16/06 part II at 68-69.
¶ 13 As we noted above, the Commonwealth initially filed notice that it intended to introduce the children's out of court statements under Section 5985.1. Notice filed 6/7/06. During trial, however, the cross-examination of J.B. prompted the prosecutor to note that at the appropriate time she believed she was entitled to play the DVD as a prior consistent statement. N.T. 11/14/06 at 71-72. As the trial neared its end, the Commonwealth indicated that it wished to introduce the DVD as rebuttal. N.T. 11/20/06 at 3. Baker responded by initially objecting to its admission on the grounds that Section 5985.1 only permitted the admission of out-of-court statements relating to certain crimes, which did not include endangering the welfare of children. N.T. 11/20/06 at 3-5. In conjunction with this claim, Baker argued that it would be impossible to separate the portions of J.B.'s statements relating to the endangering the welfare of children charge from those relating to the assault charges. Id. at 4-5. Baker also objected to introduction of the DVD on the grounds that it was cumulative and highly prejudicial. Id. at 5, 148. The Commonwealth responded by clarifying ...