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In re N.M.
Superior Court of Pennsylvania
October 31, 2019
IN THE INTEREST OF: N.M., A MINOR APPEAL OF: N.M., A MINOR
Appeal
from the Order Dated September 14, 2018 In the Court of
Common Pleas of Montgomery County Juvenile Division at No(s):
CP-46-JV-0000517-2018.
BEFORE: GANTMAN, P.J.E., STABILE, J., and
STEVENS[*],
P.J.E.
OPINION
GANTMAN, P.J.E.:
Appellant,
N.M., appeals from the dispositional order entered in the
Montgomery County Court of Common Pleas, following his
adjudication of delinquency on five counts of theft by
unlawful taking and three counts of burglary.[1] We affirm.
The
relevant facts and procedural history of this case are as
follows.
On May 13, 2018, the father of a family who lived in a home
at 439 East Marshall Street in the Borough of Norristown
contacted the Norristown Police Department to report that his
home had been burglarized, and seven hundred dollars stolen,
while he, his wife and their three children slept upstairs.
Approximately two weeks later, the father contacted
Norristown Police Detective Klinger and gave him a video
recording from a surveillance camera on the premises. The
video recording appeared to depict [Appellant], whom
Detective Klinger knew well, in the act of criminal trespass
on a residential property at 439 East Marshall Street in
Norristown.
On June 27, 2018, twenty-four days before [Appellant's]
eighteenth birthday, Detective Klinger prepared to interview
[Appellant] about the trespass and burglary at 439 East
Marshall Street, but he also planned to ask [Appellant] about
a burglary at 701 Arch Street in Norristown. Detective
Klinger had known [Appellant] for five or six years by that
time. When the detective was a patrolman, [Appellant] would
walk the beat with him for hours at a time. Then-patrolman
Klinger and his patrol partner grew to like [Appellant]. When
they learned someone had stolen his bicycle, they gave him a
new one. But as familiar as [Detective Klinger] was with
[Appellant], when it came to investigating the two
burglaries, Detective Klinger decided to enlist the help of a
fellow officer who knew [Appellant] even better than he:
Detective Stephen Sowell. As a former school resource officer
assigned to [Appellant's] middle school, Detective Sowell
had taken [Appellant] on field trips and to baseball games as
part of a mentoring program. [Appellant] even testified that
he used to talk to Detective Sowell about becoming a
policeman someday. Detective Sowell testified he and other
police officers had a good relationship with [Appellant].
"[Appellant] has always been around town even before we
met him in the school," he elaborated. "He would
follow us around on patrol calls; he would follow us on his
bike. So…the whole department knew [Appellant].
He's not a bad kid. He just sometimes makes bad choices.
Even then, whenever we have contact with [Appellant],
we're always trying to help him out."
Detective Sowell testified that as of June 27, 2018[, ] he
had known [Appellant] and his mother for approximately seven
years, and in that time he "had to speak to [Appellant]
many times." He stated that [Appellant] had been
arrested ten times in Norristown and had been a subject of
twenty police reports in total. Nonetheless, when Detective
Klinger told Detective Sowell he suspected [Appellant] of
being involved in the burglary on Arch Street, Detective
Sowell doubted [Appellant] would have committed a crime that
serious. Detective Sowell explained, "I've known
[Appellant] to do things, you know, little things here and
there, but I've never known him to do something like
that." [Detective Sowell] explained that there were
"some items taken in that burglary that I personally
didn't think fit [Appellant]. It was a large TV. I
couldn't see him taking a TV. And alcohol was reported
stolen, and I've never known him to abuse alcohol."
Detective Klinger asked Detective Sowell to serve as the main
police contact with [Appellant] because [Detective Sowell]
was specifically assigned to work with juveniles and had a
better relationship with [Appellant] and his mother.
Detective Sowell called [Appellant's] mother at
approximately 9:00 a.m. on June 27th and told her
he suspected her son of being involved in multiple
burglaries. He asked, "is it okay if we talk with him
and get a statement?" He asked if she would "send
him down" to the police station and she replied that she
would.
Detective Sowell also contacted a man named Maurice Allen, a
caseworker who supervised [Appellant] in the Academy
Aftercare program, which was providing court-ordered
supervision as the result of a prior delinquency disposition.
Detective Sowell testified that he "wanted to reach out
to [Mr. Allen] and see if he knew where [Appellant] was, and
if [Mr. Allen] could help bring [Appellant] in so we could
talk with [Appellant]." Detective Sowell testified that
he knew "that children supervised by the Academy are
accountable" to their case workers, but even [Appellant]
did not testify that Mr. Allen took [Appellant] into custody,
drove him to the police station, or made threats or promises
to induce him to submit to an interview. [Appellant] merely
said, "Maurice called and said that I had to come down
[to the police station], because they said there was like
burglaries that had been robbed."
Detective Sowell expected to see [Appellant] around noon, but
he arrived at the police station only minutes later, at
approximately 9:30 a.m. [Appellant] did not appear to be
under the influence of drugs or alcohol. When [Appellant]
arrived, Detective Sowell brought [Appellant] back into the
Detective Division, which is an open office area divided into
cubicles. Several detectives were present, including
Detective Klinger in addition to Detective Sowell, and both
were wearing their badges and guns that day. [Appellant]
testified that Detective Sowell had to open one door on the
way back, and said the office had no windows or doors to the
outside. Although entry to the office was restricted, exit
was not. [Appellant] was free to leave, and was not
restrained with handcuffs or shackles. [Appellant] testified
that he did not "know if [he] could leave the way [he]
had come in[, ]" but the [court] finds that testimony
not to be credible, mainly because of [Appellant's]
demeanor, but also because of his prior history of ten
arrests by the Norristown police department, which employed
Detective Sowell as its juvenile officer.
The detectives did not place [Appellant] under arrest because
they were still trying to gather information about the two
burglaries, one on Arch Street and the other on East
Marshall. More specifically, [Appellant] was on juvenile
probation and was wearing a "cuff," an electronic
ankle bracelet by which his movements could be tracked by
means of GPS, [2] and the detectives were in the process of
obtaining the GPS data to determine whether [Appellant] was
in the vicinity of the burglaries on Arch Street and East
Marshall Street when they occurred.
Detective Sowell told [Appellant] that the police had
received reports about burglaries of occupied homes, that
[Appellant] had been captured on video at the scene of one of
the burglaries, and that he was worried [Appellant] was
growing up to be "the type of person that's going to
do this…." According to [Appellant], Detective
Klinger stopped over to Detective Sowell's desk to show
[Appellant] a still photo taken from the video recording,
showing [Appellant] at the home on East Marshall Street.
The tone of the conversation between Detective Sowell and
[Appellant] was casual. Detective Sowell asked [Appellant]
"what are you going to do," "what are you
doing for work" and "what's going on with your
family?" [Detective Sowell] encouraged [Appellant] to
find a job with his older brother, who had just been admitted
to college, and suggested that [Appellant] should learn a
trade. Then [Detective Sowell] reminded [Appellant] that the
police had tried to mediate many things with him before, but
would "not be able to mediate this one." [Detective
Sowell] told [Appellant] that he might be placed in a
residential program for juvenile delinquents, but added,
"That's probably a good thing if you can go into a
placement somewhere where you can learn a trade and pick up
something or get enough credits to graduate."
After Detective Sowell spoke with [Appellant] for
approximately ten minutes Detective Klinger began questioning
[Appellant] about the burglary on Arch Street. After being
shown a photo of the house, [Appellant] said he wasn't
sure whether he had burglarized it, but added that
"maybe he was around back." Detective Sowell still
"didn't think that house sounded like
[Appellant]," and thought "he would have remembered
taking a TV and alcohol." Detective Sowell even told
[Appellant] he didn't think [Appellant] was responsible
for that burglary. The detectives asked [Appellant] "if
he wanted to take a ride," and they got into an unmarked
car and drove past the [Arch Street] house. [Appellant] told
them he did not burglarize "that house," meaning
the one on Arch Street.
While in the car, the detectives continued to talk about what
[Appellant] planned to do with his life, and the only
questions they asked him about their investigation pertained
to the burglary on Arch Street, not East Marshall. They drove
toward the site of the East Marshall Street burglary, and as
they neared it [Appellant] "pointed over to Marshall
Street" and spontaneously blurted out, "I was in
that one." The house he pointed to was the one at 439
East Marshall Street, which was the location where
[Appellant] had been recorded on video. As they drove back to
the police station by way of Moore Street, [Appellant]
blurted out, "I was in this one and this one."
Detective Klinger expressed surprise to Detective Sowell,
because they had no burglary reports from those
houses.3 When asked about the unreported
burglaries on cross-examination, Detective Sowell said,
"If they were unreported and it was [Appellant], I
personally would give him the benefit of the doubt."
They returned to the station and told [Appellant] he was free
to leave, but that they would contact him if they needed to
speak to him again. They offered him a ride home, but he
preferred to walk.
3 In addition to being charged with the burglary
at the home at East Marshall Street, [Appellant] was charged
with the burglaries of a home at 335 East Moore Street and
312 East Airy Street. The Moore Street burglary had not been
reported to the police department until June [25, 2018, ] and
the Airy Street burglary had not been reported until June
[23, 2018].
In the early afternoon Detective Sowell obtained the GPS
location data from [Appellant's] cuff, which placed him
within a block of three burglaries at the time each was
committed. (None of the three was the burglary of the home on
Arch Street.) With that information, Detectives Sowell and
Klinger were prepared to question [Appellant] again. They
drove to [Appellant's] home, where Detective Klinger
spoke to his mother about having [Appellant] come to the
police station again that afternoon. She was sitting on a
couch, holding her baby. Notably, [Detective Klinger] did not
testify that she said her baby was sick, nor did counsel for
[Appellant] ask a question that would have elicited such
testimony on cross-examination. She appeared to comprehend
the conversation and did not appear to be under the influence
of drugs or alcohol. When she told Detective Klinger that
[Appellant] was not at home, he told her that he was probably
going to give [Appellant] his Miranda[3] warnings and take
a statement. He asked if she wanted to be present and she
said, "No, he can handle that," or "No, he can
handle himself." She asked no questions about how
[Appellant] would be treated at the police station but said,
"I don't know what I'm going to do about this
one," expressing her worry about [Appellant] to
Detective Sowell. The detectives then returned to the police
station.
Shortly after they returned to the police station,
[Appellant] arrived on his own. He did not appear to be under
the influence of drugs or alcohol. Detective Sowell testified
that [Appellant] arrived between three o'clock and three
thirty in the afternoon. Detective Klinger testified
[Appellant] arrived at approximately three o'clock. The
evidence produced by the Commonwealth against [Appellant]
includes a small discrepancy in this regard, because
Detective Klinger wrote in the affidavit of probable cause,
"At 1530 hours [Appellant] met with me at the police
station…." This discrepancy is minor, and is
easily ascribed to imperfect attention to detail.
Alternatively, the text of the affidavit does not necessarily
exclude the possibility that [Appellant] arrived at the
police station before 3:30, but did not meet with Detective
Klinger until 3:30. Under the circumstances, further
described infra, the [court] found Detective
Klinger's testimony credible.
Before questioning [Appellant], Detective Klinger telephoned
[Appellant's] mother, told her [Appellant] was with
[Detective Klinger], told her he was going to take a
statement from [Appellant], and asked her if she wanted to
come to the police station to be present. She told him
"no," and turned down an offer to speak with her
son on the telephone. [Detective Klinger] told her he was
going to read her son the Miranda warnings but she
cut him off, telling him she knew what they were and that he
had her permission to take a statement from [Appellant]. She
asked if [Appellant] would be placed in a residential
program, and Detective Klinger replied that he did not know,
but that did not motivate her to go to the police station.
Detective Klinger asked [Appellant] if he wanted to speak
with his mother, but he said, "no." Detective
Klinger then read [Appellant] the Miranda rights
from a written form, holding it so [Appellant] could read
along. Detective Klinger's demeanor was calm and
friendly. [Appellant] told Detective Klinger that he
understood his rights. [Appellant] had no questions. In
court, when testifying on his own behalf, [Appellant]
conceded that he understood the form to state "my
rights." [Appellant] agreed to be questioned, and did
not ask to speak to his mother, a lawyer or another adult
before giving a statement to Detective Klinger.
When the interview began, [Appellant] told Detective Klinger
that he was not under the influence of medication, alcohol or
a controlled substance, and that he was not suffering from a
medical condition that would impair his ability to understand
the questions and answer completely and truthfully. He was
never handcuffed or shackled. While questioning [Appellant],
Detective Klinger kept a normal conversational tone and
demeanor, refraining from raising his voice or "pressing
answers" from [Appellant]. Detective Klinger made no
threats or promises to [Appellant]. Detective Sowell was
asked on direct examination, "Did you hear Detective
Klinger make any threats to [Appellant] about ...