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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 ...

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