In Re: N.M. Appeal of: N.M. , 2016 Pa. Super. 120 ( 2016 )

J-A08035-16
2016 PA Super 120IN RE: N.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: N.M. : No. 950 EDA 2015
Appeal from the Dispositional Order March 17, 2015
in the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-JV-0003317-2014
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
OPINION BY STRASSBURGER, J.: FILED JUNE 14, 2016
N.M. (Appellant) appeals from the dispositional order entered March
17, 2015, after she was adjudicated delinquent of retail theft. Upon review,
we vacate the order and remand for further proceedings consistent with this
opinion.
The juvenile court summarized the testimony offered at the
adjudicatory hearing in this matter as follows.
Stephen McCartney was the first witness to testify. Mr.
McCartney testified that on December 21, 2014, he was working
as a plain clothes loss prevention agent at Nordstrom Rack store
located at 17th and Chestnut Streets, Philadelphia, Pa. On that
date, Mr. McCartney said that he observed [Appellant], along
with another young woman, J.B., enter the store at
approximately 3:45 PM. Mr. McCartney identified [Appellant] at
the bar of the court. Mr. McCartney explained that he began
surveillance of the two young women because they were
carrying seemingly empty bags and looking around suspiciously.
Mr. McCartney testified that he maintained continuous
observation of [Appellant] and [J.B.] once they were in the
women’s shoe department on the third floor of the store. He
explained that [J.B.] selected a pair of blue Ugg boots valued at
$159.97[] and, approximately five (5) minutes later, they
headed for the men’s shoe department where [J.B.] sat down
and placed one boot into each of the two bags that were carried
* Retired Senior Judge assigned to the Superior Court.
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into the store. Mr. McCartney said he observed [Appellant] hand
a black handbag to [J.B.] so a boot could be concealed in it. Mr.
McCartney testified that while [Appellant] was carrying a black
handbag and [J.B.] carried an empty H & M shopping bag, the
women switched bags once the boots were placed in them. Mr.
McCartney testified that he was approximately 20 to 25 feet
away when he made these observations and he had a complete
view of the transaction. Mr. McCartney watched the two women
proceed down the elevator to the first floor where [Appellant]
left the store through the Chestnut Street exit while [J.B.] left
the store through the 17th Street exit passing all of the points of
sale without stopping to pay for the merchandise. Mr.
McCartney testified that the police were called and both
[Appellant and J.B.] were stopped and arrested. The
merchandise was returned to the store.
The only witness to testify for the defense was [Appellant].
She testified that she was at the Nordstrom Rack store on
December 21, 2014 with her friend, [J.B.]. [Appellant] testified
that her friend was shopping for boots and she sat down in the
men’s section to try them on. [Appellant] indicated that [J.B.]’s
books were in her black handbag, and it was heavy, so they
exchanged bags. [Appellant] said that it was crowded on the
first floor and she walked out the Chestnut Street exit when she
looked back and realized that [J.B.] was[ not] behind her. She
testified that she started to call [J.B.’s] cell phone while walking
back to the store when security guards came towards her asking
for the boot and grabbing the H & M bag. She was then taken
back to the detention room and the bag was emptied out.
[Appellant] testified that she did not know until that time that
[J.B.] put the boot in the bag. [Appellant] further testified that
she did[ not] see [J.B.] put the boots in the separate bags and
she did[ not] realize that she carried a boot out of the store in
the H & M bag.
Juvenile Court Opinion, 7/7/2015, at 3-5 (citations omitted). Of particular
import for purposes of this appeal, Appellant sought to call J.B. as a defense
witness at the adjudicatory hearing, but the juvenile court prevented her
from doing so out of concern for protecting J.B.’s Fifth Amendment right
against self-incrimination. N.T., 3/17/2015, at 17-20.
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Following the adjudicatory hearing, the juvenile court adjudicated
Appellant delinquent for retail theft and placed Appellant on probation. This
appeal followed.
On appeal, Appellant presents the following issues for our
consideration:
1. Was not [A]ppellant … denied her constitutional rights to
compulsory process, a fair trial and to present a defense
when the juvenile court would not permit her teenage defense
witness to provide completely exculpatory testimony by
erroneously ruling that the teenager could not waive her
privilege against self-incrimination?
2. Did not the juvenile court err and abuse its discretion in
adjudicating [A]ppellant delinquent without inquiring into
whether, or making a finding that, [A]ppellant was in need of
treatment, rehabilitation or supervision?
Appellant’s Brief at 3.
“We will disturb a juvenile court’s disposition only upon a showing of a
manifest abuse of discretion.” In re C.A.G., 89 A.3d 704, 709 (Pa. Super.
2014). However, where an appeal presents a question of law, our standard
of review is de novo and our scope of review is plenary. In re R.R., 57 A.3d
134, 139 (Pa. Super. 2012).
In her first issue, Appellant contends that the juvenile court improperly
prevented J.B. from waiving her privilege against self-incrimination and
testifying to corroborate Appellant’s defense that Appellant did not know that
J.B. had put the Ugg boot in Appellant’s bag. Appellant’s Brief at 11.
Appellant argues that the juvenile court erred in so doing because, inter alia,
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J.B. was represented by counsel, fully advised of her right against self-
incrimination, and wished to testify on Appellant’s behalf. Id. Appellant
claims that the juvenile court’s decision violated her constitutional rights to
have compulsory process for obtaining witnesses in her favor, to a fair and
just trial, and to present a defense. Id. at 11, 15-17.
The Sixth Amendment to the United States Constitution and Article 1,
Section 9 of the Pennsylvania Constitution provide that, in all criminal
prosecutions, an accused has a right “to have compulsory process for
obtaining witnesses in his favor.” U.S. Const. amend. VI; Pa. Const. art. 1,
§ 9. This right attaches to juvenile proceedings pursuant to section 6338 of
the Juvenile Act, which provides that “[a] party is entitled to the opportunity
to introduce evidence and otherwise be heard in his own behalf and to cross-
examine witnesses.” 42 Pa.C.S. § 6338(a).
Notwithstanding the above, the right to have compulsory process for
obtaining witnesses in one’s favor “is qualified to the extent of existing
testimonial privileges of witnesses, such as the privilege against self-
incrimination. The right to compulsory process guarantees a defendant the
process to obtain witnesses in his favor but does not grant him the right to
secure the attendance of any and all witnesses.” Commonwealth v.
Lyons, 833 A.2d 245, 254 (Pa. Super. 2003). A juvenile’s Fifth Amendment
right against self-incrimination is also provided for in section 6338 of the
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Juvenile Act. See 42 Pa.C.S. § 6338(b) (“A child charged with a delinquent
act need not be a witness against or otherwise incriminate himself.”).
Keeping these principles in mind, we observe that the issue in this
case is unusual in that it does not involve a challenge to an assertion of the
privilege by a juvenile, but instead a challenge to a court’s prohibition
against a juvenile’s waiver of that privilege:
[Appellant’s Counsel]: … Your Honor, at this time I would call
[J.B.] to the stand.
THE COURT: How do you expect to do this?
[Appellant’s Counsel]: Your Honor, I believe [J.B.’s counsel] will
colloquy [J.B.] on the stand about testifying --
THE COURT: How old is [J.B.]?
[Appellant’s Counsel]: [J.B.] was born in ’98, so she is 16 years
old, Your Honor.
THE COURT: She’s not testifying. She is the coconspirator on
the case where the Commonwealth just tried to amend for
conspiracy. I would not allow that, but only because they didn’t
do it in a timely fashion.
What is the benefit to this juvenile to get up on the stand
and tell a story?
[Appellant’s Counsel]: Your Honor, she’s going to tell the truth
that there was --
THE COURT: It’s not about the truth, it’s about whether she has
5th Amendment rights.
[Appellant’s Counsel]: She does have 5th Amendment rights.
THE COURT: Very good, she does. And that’s what [J.B.’s
counsel] is here for, to be 5th Amendment counsel.
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[Appellant’s Counsel]: I was not involved in the conversation
about the 5th Amendment rights, but I understand from [J.B.’s
counsel] that he explained what her rights are, the
consequences of testifying here today. She said she still wants
to testify, which is why we put the colloquy on the record.
THE COURT: Sure, she might want to buy a car too but can
she? No. You know why? Because she’s not 18 yet. She’s a
juvenile. So just because she wants to testify doesn’t mean she
gets to testify. And it’s pretty clear to the [c]ourt that she has
some serious 5th Amendment issues.
[Appellant’s Counsel]: Understood, Your Honor.
THE COURT: Was she ever arrested?
[Appellant’s Counsel]: She was arrested, Your Honor.
THE COURT: And is that still coming up?
[J.B.’s Counsel]: I can tell the [c]ourt that she was -- her case
was diverted. She got GAP, and she is not quite completed that
program.
THE COURT: Okay. So then she has double exposure.
[J.B.’s Counsel]: I’ve advised her, and she understands her
exposure.
THE COURT: Have you advised her not to testify?
[J.B.’s Counsel]: I have advised her of all of her options, Your
Honor. If it was my decision, I would tell her not to, but she’s
indicated that she wants to.
THE COURT: I’m not saying that. What difference does it make
what she wants to do? The idea is that I appointed you as her
counsel to advise her legally what she should do. It’s pretty
clear to me that legally she shouldn’t testify, so I’m not going to
allow her to testify.
N.T., 3/17/2015, at 17-20.
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This Court and the Pennsylvania Supreme Court have recognized that
the right against self-incrimination is personal and thus cannot be invoked
by another. See Commonwealth v. Hall, 701 A.2d 190, 198 (Pa. 1997)
(“Since one’s Sixth Amendment and Fifth Amendment rights are personal,
they cannot be invoked by another party.”); Hull v. Hannahstown Mutual
Ins. Co., 678 A.2d 815, (Pa. Super. 1996) (explaining that “[o]ur Supreme
Court has held that fifth amendment rights are personal to the individual and
may not be asserted by another,” and concluding that the trial court
improperly invoked the privilege on behalf of a witness). Nevertheless, we
are well aware of the concern regarding “the innate disadvantages
associated with the immaturity of most youth” and the need to balance
those considerations against the interests of society and justice.
Commonwealth v. Williams, 475 A.2d 1283, 1287 (Pa. 1984). In
Williams, which addressed a juvenile’s waiver of his Miranda1 rights in the
context of providing a confession during police interrogation, our Supreme
Court held:
The requirements of due process are satisfied, and the
protection against the use of involuntary confessions which law
and reason demand is met by application of the totality of
circumstances analysis to all questions involving the waiver of
rights and the voluntariness of confessions made by juveniles.
All of the attending facts and circumstances must be considered
and weighed in determining whether a juvenile’s confession was
knowingly and freely given. Among those factors are the
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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juvenile’s youth, experience, comprehension, and the presence
or absence of an interested adult.[2]
Id. at 1288. Other factors to consider in this context also include “(1) the
duration and means of an interrogation; (2) the defendant’s physical and
psychological state; (3) the conditions attendant to the detention; (4) the
attitude of the interrogator; and (5) any and all other factors that could
drain a person’s ability to withstand suggestion and coercion.” In re V.C.,
66 A.3d 341, 351 (Pa. Super. 2013) (internal quotation marks omitted)
(providing further that waiver must be made voluntarily, knowingly, and
intelligently).
Both Appellant and the Commonwealth draw a connection between the
case sub judice and those concerning a juvenile’s waiver of his or her
Miranda rights in the context of police interrogations, as there appears to
be no binding precedent addressing the specific issue of whether a court can
preclude a juvenile witness from waiving his or her Fifth Amendment rights
to provide testimony on behalf of a defendant at trial. We observe that
there is persuasive authority from other jurisdictions that supports
application of a totality-of-the-circumstances approach herein. For example,
2
We note that “the ‘interested adult’ rule …. provided that no person under
the age of eighteen years could waive his right to remain silent and his right
to the assistance of counsel without being provided an opportunity to consult
with an interested adult, who is informed of the juvenile’s rights and is
interested in the welfare of the juvenile.” Williams, 475 A.2d at 1286-87.
As indicated above, the presence or absence of an interested adult is no
longer a per se requirement, but one factor in determining the voluntariness
of a juvenile’s waiver of his or her Miranda rights. Id. at 1288; In re V.C.,
66 A.3d 341, 351 (Pa. Super. 2013).
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in Garza v. Texas, 248 S.W.3d 742 (Tex. App. 2008), a mother was
arrested for stealing merchandise from a department store. Id. at 742-43.
Her daughter, C.M., was the only defense witness at trial. Id. at 743. Prior
to C.M.’s taking the stand, the trial court learned upon inquiry that juvenile
charges were pending against C.M. as a result of the same incident and thus
appointed counsel to advise C.M. of her rights with regard to testifying at
her mother’s trial. Id. C.M. eventually was called as a witness, at which
time she acknowledged that she had visited with her appointed attorney,
that he had explained to her the ramifications of her testimony, and that she
agreed to testify despite her conversation with her attorney. Id. at 743-44.
Through her testimony, C.M. accepted all responsibility for the theft which
had occurred. Id.In rejecting the mother’s claim on appeal,3 the Texas Court of Appeals
looked favorably upon the manner in which the trial court handled C.M.’s
testifying:
Here, when placed in context, the record does not support
appellant’s contention that the trial court’s remarks and cited
conduct were intended to, nor had the effect of, coercing C.M. to
alter her testimony. Rather, the record shows that the trial court
engaged in the conduct to protect the rights of an unrepresented
minor, who was subject to pending juvenile charges, and to
insure that C.M. was not pressured or manipulated by her
mother to take the blame for the offense.
3
The mother argued that “the trial court violated her right to due process of
law under the Fourteenth Amendment by making statements to the sole
defense witness [and engaging in conduct] resulting in and calculated to
dissuade the witness from clearing [the mother] of the accused offense.”
Garza, 248 S.W.3d at 744.
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Nor was the tenor of the trial court’s questions and
remarks directed at C.M. overbearing or coercive. Rather, the
trial court’s tenor was inquisitive and cautious with the apparent
focus being to insure that C.M. understood the incriminating
effect of her testimony and to make certain that C.M.’s waiver of
her right against self-incrimination was made intelligently,
voluntarily, and independent of her mother’s influence.
Id. at 745-46 (noting further that “C.M. did not decline to testify as a result
of the trial courts actions” and that “C.M. implicitly waived her right against
self-incrimination and testified in her mother’s defense[ d]espite appointed
counsel’s presumed advice”). Thus, looking at the various factors present in
the case (i.e., that C.M. had charges pending from the same incident, had
appointed counsel, presumably was advised of her right against self-
incrimination, and had not been subject to coercion),4 the Texas Court of
Appeals found no error.
In State v. Melina, 210 N.W.2d 855 (Minn. 1973), the defendant was
convicted of receiving or concealing stolen property with respect to a bicycle
he had been found riding. Id. at 855. At trial, the “defendant testified that
he got [the] bicycle from Marvin Bolles, but not to keep, only to use. [The
d]efendent testified that he did not know where Marvin got the bicycle.” Id.
The defendant called Marvin Bolles and another individual, who were two of
the defendant’s juvenile companions at the time of the arrest, as defense
4
The Court also observed that the mother “appear[ed] to suggest that the
trial court’s conduct in some manner shaded or inhibited C.M.’s testimony,”
but rejected that contention because it was not supported by the record.
Garza, 248 S.W.3d at 746.
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witnesses, but the “trial court refused to permit either to waive his privilege
against self-incrimination” on the basis that they were juveniles and
incapable of doing so. Id. at 855-56.
On appeal, the Supreme Court of Minnesota concluded that, “[w]hile in
the instant case the court’s action reflected a natural concern for the
constitutional rights of the juveniles called as defense witnesses,” the trial
court erred in preventing the juvenile defense witnesses from testifying
based solely on the fact that they were juveniles. Id. at 856. The Court
further explained that
[w]hen it is clear to a trial court that a juvenile by testifying will
incriminate himself, it becomes incumbent upon the court to see
that independent counsel, a parent, or other competent adult
adviser is obtained to advise the juvenile concerning his
constitutional privilege against self-incrimination. The court can
interrogate and satisfy itself that the right was intelligently
waived, if such be the case. … If, after proper advice by
independent counsel, an adult adviser, or parent, the juvenile
wishes to testify, the court should allow his testimony.
Id. (citations omitted).
Upon review, we likewise conclude that a juvenile may waive his or her
right against self-incrimination in the context of providing witness testimony
if the waiver is knowing, intelligent, and voluntary. In determining whether
such waiver is proper, we believe that a totality-of-the-circumstances test
strikes the proper balance between accounting for the disadvantages
associated with one’s youth and ensuring the interests of justice are served.
We therefore adopt that test today and, in so doing, hold that the following
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factors are among those to be considered when implementing this approach:
“the juvenile’s youth, experience, comprehension, and the presence or
absence of an interested adult,” Williams, 475 A.2d at 1288; the presence
or absence of appointed counsel; the advice provided by counsel; and
whether the juvenile was facing criminal charges arising from the same
incident at issue. Moreover, any evidence of coercion or improper
suggestion on behalf of the defendant, other witnesses, the attorneys
involved, and the juvenile court is also to be considered. See In re V.C., 66
A.3d at 351 (stating that “the relinquishment of the right must have been
voluntary in the sense that it was the product of a free and deliberate choice
rather than intimidation, coercion or deception”). Finally, the juvenile court
shall conduct an on-the-record colloquy to ensure that the juvenile is fully
aware of both “the nature of the right being abandoned and the
consequences of the decision to abandon it.” Id.Turning to the circumstances of this case, the juvenile court offered
the following reasoning for its decision to preclude J.B. from waiving her
privilege against self-incrimination:
In order to protect the Fifth Amendment rights of the
witness[], counsel was appointed to represent her. Further, the
purpose of the in[-]court colloquy was to determine whether the
witness understood that she could remain silent pursuant to her
Fifth Amendment right against self-incrimination. The witness’s
waiver of her right to remain silent was significant to the [c]ourt
because the witness was also facing charges arising from the
facts of the instant case. It was clear to the [c]ourt that counsel
advised [J.B.] not to testify. Furthermore, [J.B.’s] parents were
not present in court and did not participate in the discussion with
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counsel about their child’s waiver of her Fifth Amendment rights.
Under [s]ection 6338 of the Juvenile Act, this [c]ourt refused to
permit her testimony.
Juvenile Court Opinion, 7/7/2015, at 6-7. Thus, the juvenile court
considered many, but not all, of the factors outlined above in precluding J.B.
from waiving her Fifth Amendment rights.
Nevertheless, we conclude that a remand is proper in this case
because, notwithstanding the juvenile court’s representation that an on-the-
record colloquy of J.B. occurred, the court did not cite—and the record does
not reveal—that such a colloquy was in fact conducted. In the absence of
this colloquy, we have little basis upon which to confirm that J.B. was fully
aware of both the nature of her Fifth Amendment right against self-
incrimination and the consequences of waiving that right. Moreover, we
have no indication of the manner in which her youth, experience, and
comprehension impacted her decision, or whether there was any indication
that J.B. was coerced or otherwise influenced improperly when making her
decision. Given these circumstances (i.e., no on-the-record-colloquy), we
hold that the juvenile court’s refusal to permit J.B. to waive her Fifth
Amendment right was in error.5 Thus, Appellant is entitled to a new
5
The Commonwealth argues that Appellant did not preserve her claim
because she failed to make a sufficient offer of proof as to the substance of
J.B.’s testimony. Commonwealth’s Brief at 10-12. We agree with Appellant
that, as demonstrated by the record, she was, for all intents and purposes,
precluded from making an adequate offer of proof by the juvenile court.
See Romeo v. Manuel, 703 A.2d 530, 534 n.2 (Pa. Super. 1997)
(addressing an issue “as properly before this Court” where there was no
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disposition wherein the juvenile court shall perform a proper colloquy with
respect to J.B.’s waiver of her Fifth Amendment rights and give full
consideration to all of the factors outlined above.
Given our disposition above, we need not render a decision on
Appellant’s second issue. However, in the event that the juvenile court finds
on remand that Appellant committed retail theft, we remind the court of its
responsibilities pursuant to Section 6341(b) of the Juvenile Act:
(b) Finding of delinquency.--If the court finds on proof
beyond a reasonable doubt that the child committed the acts by
reason of which he is alleged to be delinquent it shall enter such
finding on the record and shall specify the particular offenses,
including the grading and counts thereof which the child is found
to have committed. The court shall then proceed
immediately or at a postponed hearing, which shall occur
not later than 20 days after such finding if the child is in
detention or not more than 60 days after such finding if
the child is not in detention, to hear evidence as to
whether the child is in need of treatment, supervision or
rehabilitation and to make and file its findings thereon. …
In the absence of evidence to the contrary, evidence of the
commission of acts which constitute a felony shall be sufficient to
sustain a finding that the child is in need of treatment,
supervision or rehabilitation. If the court finds that the child is
not in need of treatment, supervision or rehabilitation it shall
dismiss the proceeding and discharge the child from any
detention or other restriction theretofore ordered.
offer of proof on the record but the trial judge had prevented the appellant
from approaching sidebar regarding the evidentiary ruling, explaining that
“[t]his Court will not hold the lack of an offer of proof against [the] appellant
because of the trial court’s refusal to accept the offer of proof”). We further
agree that the substance of J.B.’s testimony was apparent from the context.
See Pa.R.E. 103(a)(2) (“A party may claim error in a ruling to … exclude
evidence only[] if … a party informs the court of its substance by an offer of
proof, unless the substance was apparent from the context.”).
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42 Pa.C.S. § 6341(b) (emphasis added). See Commonwealth v. M.W., 39
A.3d 958, 962 (Pa. 2012) (holding that “a juvenile court must determine (1)
that the juvenile committed the delinquent acts alleged; and (2) that the
juvenile is in need of treatment, supervision, or rehabilitation, before it may
enter an adjudication of delinquency”) (emphasis in original).
Based on the foregoing, we conclude that the juvenile court erred in
preventing J.B. from waiving her Fifth Amendment right against self-
incrimination without conducting a proper on-the-record colloquy of J.B. and
without full consideration of all of the factors set forth above. Accordingly,
we vacate the March 17, 2015 dispositional order and remand for a new
proceeding consistent with this opinion.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2016
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