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In re T.P.

Superior Court of Pennsylvania

October 21, 2013

IN THE INTEREST OF: T.P., A MINOR, APPEAL OF: COMMONWEALTH OF PENNSYLVANIA, Appellant

Appeal from the Order Entered April 6, 2012 In the Court of Common Pleas of Dauphin County Juvenile Division at No(s): CP-22-JV-0000239-2012

Joseph D. Seletyn, Esq.

BEFORE: BOWES, OLSON, and WECHT, JJ.

OPINION

BOWES, J.

The Commonwealth appeals from the juvenile court order that granted T.P.'s motion to suppress based on 42 Pa.C.S. § 6338(c)(1), a provision of the Juvenile Act. Specifically, the court ruled that certain statements made by Juvenile during a pre-polygraph interview that was part of court-ordered counseling he was receiving for unrelated delinquency cases were inadmissible. After careful review, we affirm.[1]

Juvenile was originally adjudicated delinquent on two separate juvenile delinquency petitions. The juvenile court found Juvenile delinquent for the commission of acts constituting indecent assault and harassment based on his fondling of a twelve-year-old female's breasts while another juvenile engaged in forcible intercourse with the victim. In addition, the court determined that Juvenile committed the delinquent act of indecent exposure after he both showed a student his penis during gym class and touched that student's back with his penis. At the time of the commission of the delinquent acts, Juvenile was not yet fourteen.

The juvenile court entered a dispositional order for both cases requiring Juvenile to complete sex-offender counseling with the Commonwealth Clinical Group ("Clinical Group"). As part of Juvenile's treatment, the Clinical Group mandated that he take a polygraph exam. During a pre-polygraph interview, which immediately preceded the polygraph exam, Juvenile admitted to sexual misconduct involving a family member. Ultimately, it was determined that Juvenile engaged in forcible intercourse with his nine-year-old brother. Based on Juvenile's statements during the interview, the Commonwealth filed the underlying delinquency petition alleging two delinquent acts of involuntary deviate sexual intercourse ("IDSI") by forcible compulsion, two charges of IDSI with a minor less than thirteen years old, one act of criminal attempt to commit IDSI, and four counts of indecent assault.

Juvenile filed a motion seeking to suppress the admission of any statements that he made during the interview. Therein, he argued that his statements were taken in violation of his constitutional rights against self-incrimination since he was not provided Miranda warnings, his statements were not knowing, voluntary, and intelligently made, and the statements were inadmissible under the Juvenile Act because admission of his confession would contravene the goals of that statute. The juvenile court conducted a suppression hearing on March 7, 2012. Juvenile explicitly argued at the suppression hearing, that, "the incriminating statements that he might have made should be suppressed under the Juvenile Act because it's under the process of receiving treatment." Suppression Hearing, 3/7/12, at 6. He did not cite directly to § 6338(c)(1). Subsequently, on March 28, 2012, both Juvenile and the Commonwealth submitted respective memorandum on the suppression issues. Again, Juvenile failed to expressly cite § 6338(c)(1). The juvenile court concluded that Juvenile's Miranda position did not entitle him to relief, but suppressed his statements based on § 6338(c)(1), the section of the Juvenile Act governing admissions obtained during the course of a screening or assessment pursuant to proceedings under the Juvenile Act.

The Commonwealth timely appealed, certifying that the juvenile court order suppressing Juvenile's statements would terminate or substantially handicap its delinquency proceedings. See Pa.R.A.P. 311(d). The juvenile court ordered the Commonwealth to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The Commonwealth complied, and the juvenile court authored its Pa.R.A.P. 1925(a) memorandum. The matter is now ready for this Court's consideration. The Commonwealth raises two issues for our review.

1. Did the Juvenile waive any claim to suppress his confessions under 42 Pa.C.S.A. § 6338 by failing to raise the issue at any point during the proceedings, including [his] pretrial motion, pretrial suppression hearing, and extensive written submissions after the pretrial hearing?
2. Did the [juvenile] court err in concluding that an exit therapeutic maintenance polygraph conducted as part of sex offender counseling constituted [an] "assessment" rather than "treatment" under 42 Pa.C.S.A. § 6338(c)?

Commonwealth's brief at 4.

When reviewing the propriety of a suppression order, we are required to determine whether "the record supports the factual findings of the suppression court, " and "we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error." Commonwealth v. Peterson, 17 A.3d 935, 937 (Pa.Super. 2011). Since Juvenile prevailed below, we consider only the evidence of Juvenile and so much of the Commonwealth's evidence that is un-contradicted when read in the context of the entire record. Id. Concomitantly, where the questions presented concern legal questions, we are not bound by the suppression court's determinations and our standard of review is de novo. See Commonwealth v. Durso, 2013 PA.Super. 223, * 1 (discussing suppression issue concerning statutory interpretation).

The Commonwealth begins by arguing that Pa.R.A.P. 302 applies, and that Juvenile's issue is waived because it was not raised below. According to the Commonwealth, who is the Appellant herein, Juvenile's failure to specifically assert the applicability of § 6338 during the hearing resulted in the claim being waived. In support of this position, the Commonwealth relies on case law discussing the failure of an appellant to set forth an argument in the trial court and the appellant's forwarding of that position on appeal. Commonwealth's brief at 13-14 (citing Commonwealth v. Charleston, 16 A.3d 505 (Pa.Super. 2011); Commonwealth v. Shamsud-Din, 995 A.2d 1224 (Pa.Super. 2010)).

The Commonwealth continues that Juvenile "failed to raise the claim that his confessions would be inadmissible in an adjudicatory hearing under 42 Pa.C.S.A. §6338 at any stage in these proceedings, despite having multiple opportunities to do so." Commonwealth's brief at 14. It maintains that because Juvenile did not cite § 6338 in his five page suppression motion, Juvenile waived any reliance upon § 6338(c)(1). The Commonwealth also asserts that Juvenile's claim that his confession should be suppressed based on the juvenile court's "plenary authority under the Juvenile Act" did not adequately raise the grounds on which the juvenile court afforded suppression. Commonwealth's brief at 14.

The Commonwealth highlights that juvenile counsel did not explicitly cite § 6338 during the suppression hearing or reference the provision in post-hearing memorandum. Instead, in addition to his Miranda positions, Juvenile presented approximately two pages of argument pertaining to the juvenile court's plenary authority to suppress Juvenile's admissions under the Juvenile Act. Lastly, the Commonwealth relies on case law discussing appellate waiver based on a party's inadequate development of a legal issue on appeal. In this respect, the Commonwealth asserts that Juvenile's plenary authority argument was so vague that it "abrogates the very concept of specificity fostered in Pa.R.A.P. 302(a)." Commonwealth's brief at 17.

Juvenile counters that the Commonwealth's argument "demonstrates a lack of understanding of appellate practice and the law regarding preservations of issues." Juvenile's brief at 6. In leveling this aspect of his argument, Juvenile points out that Pa.R.A.P. 302(a) applies to appellants and not appellees. Juvenile contends that the Commonwealth's application of the rule is "nonsensical" because it is the Commonwealth which filed the instant appeal. Id. Additionally, Juvenile maintains that the case law discussing specific and timely objections is equally inapplicable because those cases were discussing an appellant's failure to preserve an argument and not an appellee's default. Juvenile submits that the suppression court correctly considered the relevant portions of the Juvenile Act after he argued that the court had general authority under that Act to suppress his statements. In sum, Juvenile reasons that the suppression court "appropriately applied the law to the facts of the case and determined that Juvenile's statements should be suppressed pursuant to 42 Pa.C.S.A. § 6338(c)(1)." Juvenile's brief at 9.

We agree. The question in this matter is not whether Juvenile, who is the appellee, is raising an issue for the first time on appeal. Rather, the issue is whether the juvenile court erred by sua sponte affording relief on the basis of a specific statutory provision of the Juvenile Act not expressly referenced by Juvenile. These questions are distinct. Thus, the Commonwealth's reliance on Pa.R.A.P. 302(a) and cases involving questions presented for the first time on appeal or inadequate briefing are inapt.

Moreover, it is a well-settled doctrine in this Commonwealth that a trial court can be affirmed on any valid basis appearing of record. Commonwealth v. Moore, 937 A.2d 1062, 1073 (Pa. 2007); Commonwealth v. Parker, 919 A.2d 943, 948 (Pa. 2007); Commonwealth v. Hernandez, 935 A.2d 1275, 1290 n.3 (Pa. 2007); Thomas v. Mann, 28 Pa. 520, 522 (Pa. 1857). "The precept may be applied even though the reason for sustaining the judgment was not raised in the trial court, relied on by that court in reaching its decision, or brought to the attention of the appellate courts." Thomas G. Saylor, Right for Any Reason: An Unsettled Doctrine at the Supreme Court Level and an Anecdotal Experience with Former Chief Justice Cappy, 47 Duq.L.Rev. 489, 490 (2009). Therefore, so long as the juvenile court's ultimate decision is supported by the record, it can be affirmed.

Furthermore, while constitutional and statutory-based claims can be waived, courts are not required to view only the specific rules, statutes, or cases cited by a party. If an assertion raised by a party can fairly be said to implicate a rule of law or legal precedent known by a court to be applicable, it is not foreclosed from considering that legal precept solely because that precise case, rule, or statute was not cited. See Hernandez, supra at 1290 n.3 ("The fact that the Commonwealth fails to argue the [Commonwealth v.] Baker[, 541 A.2d 1381 (Pa. 1988)] line does not preclude us from realizing the propriety of the police conduct under another settled line of authority. The suppression court denied relief and we must affirm that determination if it is correct for any reason, even if the reason differs from that accepted by the court below."). To hold otherwise would severely restrict a court's decision-making abilities.

We add that waiver is "a judicial construct, made via procedural rules and practices, to carry out the orderly functioning of the appellate process." Commonwealth v. Foster, 17 A.3d 332, 353 (Pa. 2011) (Castille, C.J. concurring). The primary reasons for our issue preservation doctrines, i.e., the reasons relied on by the Commonwealth, are premised on issues that are not present in this case. In the seminal case of Dilliplaine v. Lehigh Valley Trust, Co., 322 A.2d 114 (Pa. 1974), our Supreme Court indicated that the plain error doctrine would no longer be applicable, requiring parties to raise issues in the trial court. Dilliplaine has been said to be the foundation for the waiver doctrine as it pertains to raising claims before a trial court. See Commonwealth v. Johnson, 456 A.2d 988, 994 (Pa.Super. 1983). The Dilliplaine Court stated,

Requiring a timely specific objection to be taken in the trial court will ensure that the trial judge has a chance to correct alleged trial errors. This opportunity to correct alleged errors at trial advances the orderly and efficient use of our judicial resources. First, appellate courts will not be required to expend time and energy reviewing points on which no trial ruling has been made. Second, the trial court may promptly correct the asserted error. With the issue properly presented, the trial court is more likely to reach a satisfactory result, thus obviating the need for appellate review on this issue. Or if a new trial is necessary, it may be granted by the trial court without subjecting both the litigants and the courts to the expense and delay inherent in appellate review. Third, appellate courts will be free to more expeditiously dispose of the ...

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