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Commonwealth v. Schwing

December 29, 2008

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
CHARLES GERALD SCHWING, III, APPELLANT



Appeal from the Judgment of Sentence dated February 21, 2007 In the Court of Common Pleas of York County Criminal No. CP-67-CR-0002486-2006.

The opinion of the court was delivered by: Fitzgerald, J.

BEFORE: STEVENS, LALLY-GREEN, and FITZGERALD,*fn1 JJ.

OPINION

¶ 1 Appellant, Charles Gerald Schwing, III, appeals from the judgment of sentence entered in the York County Court of Common Pleas, following his convictions for two counts each of involuntary deviate sexual intercourse (IDSI), indecent assault, and corruption of minors. On appeal, Appellant challenges the denial of his motion to suppress his statement to the police. We hold that a custodial interrogation does not occur when an officer advises the defendant before the interview that he is free to leave, the officer permits the defendant to leave the room unescorted to attend to personal matters, and the officer waits until after the defendant's confession to tell the defendant he is not free to leave. We further hold that Appellant's subsequent and proper waiver of his rights cured any prior, potential violation. Accordingly, we affirm.

¶ 2 On February 28, 2006, the West Manheim Police Department conducted an interview of the then-thirteen-year-old victim, V.R., during which she indicated that she performed oral sex on Appellant twice, and Appellant performed oral sex on her once. She also told the police that on numerous occasions, together they smoked marijuana provided by Appellant. On March 1, 2006, Chief Timothy Hippensteel called Appellant, asking him to come to the station to discuss V.R. and her mother, with whom Appellant had a sexual relationship. Appellant testified to the following:

Q: Sir, when Chief Hippensteel called you to come to the station, did he threaten you?

A: No, sir.

Q: Did he tell you come or else you are in trouble?

A: No, sir, he did not.

Q: Tell you you would be arrest[ed] if you didn't show?

A: No, sir, he did not.

Q: Asked you to come and talk to you about a couple of things?

A: Yes, sir, he did.

Q: And you went there on ...


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