Appeal from the Judgment of Sentence February 28, 2008, In the Court of Common Pleas of Lawrence County, Criminal at No. 442/06.
The opinion of the court was delivered by: Freedberg, J.
BEFORE: FORD ELLIOTT, P.J., FREEDBERG, J. AND MCEWEN, P.J.E.
¶ 1 This is an appeal from judgment of sentence entered by the Court of Common Pleas of Lawrence County after a jury convicted David Page of two counts of aggravated indecent assault, 18 Pa.C.S.A. § 3125(a)(7) and (b), one count of indecent assault, 18 Pa.C.S.A. § 3126(a)(7), and one count of corruption of minors, 18 Pa.C.S.A. 6301(a). Appellant was sentenced to a term of incarceration of five to ten years. Appellant contends that the trial court erred when it failed to suppress a statement made by Appellant, when it permitted evidence of prior bad acts, when it allowed the Commonwealth to amend the information after close of the evidence and prior to closing arguments, and when it allowed the Commonwealth to discuss prior bad acts of Appellant during its closing argument. We affirm.
¶ 2 Appellant dated the mother of the thirteen year old female victim for approximately eight years. Notes of Testimony, 6/12/2007, at 102. Appellant resided with them for the majority of the time during which he was dating the mother, moving in when the child was approximately four years old. Id. The girl testified that Appellant was like a father to her, and the two often went shopping, played video games, and read together. Id. She stated that both her mother and Appellant typically put her to bed, after which her mother would go to bed. At that point, Appellant would come into her room and hurt her. Id. at 7. She testified that Appellant "would put his hands down [her] pants and he would caress the inside of [her] thighs. . . . [and] he would put his fingers inside of [her]." Id. at 7-8. This abuse went on for a number of years and occurred approximately one hundred times while Appellant lived with them. Id. at 9, 80.
¶ 3 The child did not report the abuse for a period of time because she was afraid of Appellant after he threatened that both she and her mother would be in trouble if she told anyone what he was doing. Id. at 1, 13. On February 17, 2005, the threats escalated when Appellant came into the child's room after she was asleep and told her that he would "cut [her] throat if [she] said anything." Id. at 11. Appellant tried to touch the girl that night, but she screamed and he stopped. Id. at 12-13. The abuse then stopped. In November 2007, Appellant told the victim he was going to buy her a cell phone. Id. at 14. Afraid that the gift meant Appellant was going to touch her again, she screamed and told her mother about the years of abuse by Appellant. Id. The child was interviewed by a Lawrence County Children Youth and Service caseworker and a representative from the District Attorney's office two days later.
¶ 4 Appellant agreed to meet with Corporal Scott Patterson from the Pennsylvania State Police on February 3, 2006, to discuss the allegations against him. Id. at 37-38. Appellant arrived at the New Castle police station by means of his own transportation, and the interview began at approximately 9:45 a.m. Id. at 40. Corporal Patterson began the session by reading Appellant the Miranda rights. Appellant, who dropped out of school in the ninth grade, asked a question about the availability of a public defender. Corporal Patterson testified: "I told him that if he would qualify for that and he is charged, a public defender would be appointed for him, and that would depend on his income." Notes of Testimony, Suppression Hearing, at 11. Appellant stated that he understood his rights and signed a waiver form. Id. at 43-45.
¶ 5 At first, Appellant denied he sexually abused the girl, but, at approximately 12:15 p.m., he admitted to touching her inappropriately. Id. at 45-46. Corporal Patterson handwrote a statement summarizing Appellant's statements, which he reviewed with Appellant line-by-line for accuracy. Id. at 46-48. Appellant verified the information in the statement was correct and signed the statement. Appellant was arrested on March 28, 2006, for the sexual abuse of the girl.
¶ 6 Appellant filed a motion to suppress his statement on October 20, 2006. After a hearing, Appellant's motion was denied on January 29, 2007. A jury trial began on June 11, 2007. On June 13, 2007, Appellant was found guilty of two counts of aggravated indecent assault, one count of indecent assault, and one count of corruption of minors. On February 26, 2008, Appellant was sentenced to five to ten years' imprisonment. This appeal followed.*fn1
¶ 7 Appellant raises four issues in his brief. Appellant claims that the trial court incorrectly denied his motion to suppress the statement he gave to Corporal Patterson. He also claims that the trial court should not have permitted the Commonwealth to introduce evidence about his prior bad acts or, alternatively, it should have given a cautionary instruction concerning the evidence. Appellant claims that the trial court erred in permitting the Commonwealth to comment on prior bad acts during closing arguments. Finally, Appellant contends that the Commonwealth should not have been allowed to amend the information after the close of the evidence and prior to closing arguments.
¶ 8 Appellant argues that the trial court erred when it denied his motion to suppress. In reviewing an appeal of a denial of a motion to suppress, the appropriate standard of review was set forth in Commonwealth v. Grundza, 819 A.2d 66, 67 (Pa. Super. 2003) (internal quotations omitted), citingCommonwealth v. Reppert, 814 A.2d 1196 (Pa. Super. 2002), as follows:
Our standard of review of a denial of suppression is whether the record supports the trial court's factual findings and whether the legal conclusions drawn therefrom are free from error. Our scope of review is limited; we may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.
¶ 9 At the outset, we note that the trial court determined that the trooper's interview of Appellant did not constitute custodial interrogation. Resolution of whether this determination was correct is critical to disposition of Appellant's argument for suppression.
¶ 10 In finding that the interview did not constitute custodial interrogation, the trial court cited the following factors:
"A. Corporal Patterson did not pick up the defendant in his cruiser, but rather defendant arrived at the barracks via his own transportation.
B. Detective Disque prearranged this interview, which demonstrates defendant was a willing participant.
C. Defendant was never handcuffed nor was there any restraint on defendant's freedom of movement.
D. The interview lasted only three and one half (3.5) hours which included preparation for an administration of the polygraph test-not just questioning-which this court finds is not excessively long.
E. Defendant was not compelled to stay at the barracks, nor was he required to answer any questions presented to him. In the waiver form that Corporal Patterson read to defendant, and defendant subsequently signed indicating he understood its terms, it clearly stated that defendant was entitled to representation of counsel before questioning. Additionally, the warning form stated that defendant could stop the questioning at any time and could not be forced to continue.
F. Corporal Patterson was dressed in plain clothes and was the sole officer in the interview room when defendant was interviewed and gave the inculpatory statement. Additionally, Corporal Patterson's tone of voice was matter-of-fact, as there were no threatening or intimidating communications or manifestations. This court finds that these facts illustrate the potentially coercive aura of a police barracks was eliminated.
G. There were no charges pending against defendant in which the officer could have used as a bargaining chip to draw out incriminating information, nor was there any credible evidence presented to this court indicating Corporal Patterson influenced defendant to offer incriminating statements." Order of January 26, 2007.
Appellant was allowed two breaks during the interview process. At the conclusion of the interview, he was allowed to leave. The arrest for these charges occurred almost two months after the interview.
¶ 11 "The test for determining whether a suspect is in custody is whether the suspect is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted." Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007); Commonwealth v. McCarthy, 820 A.2d 757, 759-760 (Pa. Super. 2003). This standard is an objective one, which takes into consideration the reasonable impression on the person being interrogated. McCarthy, 820 A.2d at 759-760 (citations omitted). The test "does not depend upon the subjective intent of the law enforcement officer interrogator," but instead "focuses on whether the individual being interrogated reasonably believes his freedom of choice is being restricted." Commonwealth v. Hayes, 755 A.2d 27, 33-34 (Pa. Super. 2000), quoting Commonwealth v. Gibson, 728 A.2d 473, 480 (Pa. 1998). The fact that the police may have "focused" on the individual being questioned or that the interviewer believes the interviewee is a suspect is irrelevant to the issue of custody. Commonwealth v. ...