In re Interest of G.E.W.

233 A.3d 893

In the INTEREST OF: G.E.W., a Minor

Appeal of: G.E.W., a Minor

No. 1873 MDA 2019

Superior Court of Pennsylvania.

Submitted May 4, 2020

Filed: June 8, 2020

Cheryl A. Sobeski-Reedy, Public Defender, Wilkes-Barre, for appellant. Robert M. Buttner, Scranton, for appellant.

Stefanie J. Salavantis, District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Matthew T. Muckler, Assistant District Attorney, Wilkes-Barre, for Commowealth, appellee.

BEFORE: OLSON, J., MURRAY, J., and COLINS, J.^*

OPINION BY MURRAY, J.:

G.E.W. (Appellant) appeals from the dispositional order entered after the juvenile court adjudicated her delinquent of one count of sexual abuse of children and two counts of indecent assault.¹ Appellant challenges the sufficiency of the evidence to sustain the sexual abuse of children adjudication, as well as the denial of her suppression motion. We affirm.

The juvenile court recounted the relevant facts:

Detective Charles J. Balogh, Jr. testified that on March 12, 2019, he received an email from the National Center for Missing and Exploited Children and a call from the Internet Crimes Against Children's Task Force's Commander that it "had a priority two cybertip where a minor 8-year-old child [ (Victim) ] is being sexually exploited and/or molested." A priority two cybertip means that it believes "that a child is in [imminent] danger of being sexually molested and/or exploited.

He further explained "that there is a [26]-year-old male and a 17-year-old female [ (Appellant) ] that were sexually exploiting and/or molesting an 8-year-old ... [c]hild victim." He explained that the origin of the cybertip was reported to be from Facebook. "This report was generated by Facebook because the [26]-year-old ... and [Appellant] were using Facebook Messenger." "There were two different IP addresses, one for the alleged [26]-year-old male individual and [Appellant]. ...

Detective Balogh further testified that by using the IP address provided to him and the Facebook profile connected to same, he was able to ascertain the name, home address, date of birth, email addresses and school of the owner of that IP address as that of [Appellant] .... Additionally, he stated Facebook provided him with "excerpts of the sexually-explicit conversation between [Appellant] and later determined to be her co-defendant [N.H.² ]. ... Further, Detective Balogh stated he was able to determine that the other co-actor was physically located in "Perryopolis, Pennsylvania."

Detective Balogh testified he read the entire conversation and confirmed the identity of the 8-year-old [Victim]. He determined the [Victim] was the niece of [Appellant] and she was visiting the home of [Appellant's] mother and father ....

Detective Balogh testified to the "fact that the [Appellant] was inappropriately touching her 8-year-old niece and specifically being told by her co-defendant what to do. And I could tell by that ... there's a visual, that she was providing visual access because the co-defendant is telling her how the body positioning is and what she should be doing which would indicate clearly that he's seeing and she's providing visual access to [Victim]." [Appellant] further recalled her niece's "vagina being wet."

Detective Balogh continued to state that on March 12, 2019, Luzerne County Detective Daniel Yursha and he proceeded to [Appellant's residence] and met the parents of [Appellant] and her outside the home. The detectives, [Appellant], her mom and dad, "moved into the residence, inside the kitchen area." Detective Balogh said he "explained the cybertip in its entirety and told them why I was there, the purpose of my visit."

... Detective Balogh further stated after explaining they were there regarding a cybertip, they provided [Appellant] with Miranda^[3] warnings and explained those rights to her and her parents. "Even prior to advising the defendant and her parents of the constitutional warnings, I explained to them we're here from a cybertip which involved a minor child and explained what was going on and why we were there ... I asked if we could come in. They said, you're more than welcome to come in. And at that point, we did sit down and talk to [Appellant] and both her parents," Balogh stated. I told [Appellant] during the constitutional warnings she was free to stop me at any time ... [s]he never asked to leave the room. Had she, I would have allowed it," Detective Balogh stated. Additionally, "... I advised her she had a right to counsel right on the constitutional warning form which she signed, along with her parents."

[Appellant] "got very emotional. She was upset and she made a comment very early on that he --," Balogh testified. "Yes she made the comment that he better get in trouble, too. And more or less she told me on numerous occasions that he's the one who made her do what she did ... [s]he admitted to not only using Facebook Messenger and video so that there is a – she also admitted to the chat conversation; specifically, when I went into detail about some of the things that were said, she admitted to those comments and those – that she in fact is the one who responded."

Balogh testified [Appellant] "told me that she did in fact lift up [Victim's] shirt, exposing her breast, to provide visual access to her co-defendant. In addition to that, she had put her hand inside of her niece's pants and underwear ... and put her hand inside her vagina area."

On cross-examination, Detective Balogh testified that he was not provided the live feed of the incident. He later learned that Facebook did not preserve the live video. ..."

Juvenile Court Opinion, 10/11/19, at 3-7.

The Commonwealth filed a delinquency petition on April 25, 2019, seeking to have Appellant adjudicated delinquent of one count of sexual abuse of children and two counts of indecent assault. Appellant filed a suppression motion alleging that her statement to police was unlawfully obtained because she did not knowingly or voluntarily waive her Miranda rights. The juvenile court, following a hearing, denied the suppression motion. At a subsequent hearing, the juvenile court adjudicated Appellant delinquent of the aforementioned offenses. The juvenile court entered its dispositional order and Appellant filed a timely notice of appeal.⁴

Appellant presents this Court with three issues:

1. Did the trial court err as a matter of law or abuse its discretion in failing to suppress an illegally obtained statement of the [Appellant] in violation of her 5th and 6th Amendment of the United States Constitution and Article 1, § 9 of the Pennsylvania Constitution ?

2. Did the trial court err as a matter of law or abuse [its] discretion in failing to preclude the admission of the [Appellant's] illegally obtained statement where the evidence produced by the Commonwealth failed to satisfy the corpus delicti rule?

3. Did the Commonwealth failed [sic ] to prove, beyond a reasonable doubt, that the [Appellant] violated 18 Pa.C.S.A. § 6312(b)(2) in that the Commonwealth presented insufficient evidence to establish that the [Appellant] engaged in a "prohibited sexual act" as defined in 18 Pa.C.S.A. § 3101 ?

Appellant's Brief at 3.

We first consider Appellant's suppression claim. "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." In the Interest of N.B. , 187 A.3d 941, 945 (Pa. Super. 2018) (en banc ) (internal quotation marks omitted). As the Commonwealth prevailed below, we "may consider only the Commonwealth's evidence and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole." In re B.T., 82 A.3d 431, 435 (Pa. Super. 2013). However, we are not bound by the juvenile court's legal conclusions, which we review de novo . N.B. , 187 A.3d at 945.

Appellant alleges violation of her Miranda rights. The following legal principles govern:

To safeguard an uncounseled individual's Fifth Amendment privilege against self-incrimination, suspects subject to custodial interrogation by law enforcement officers must be warned that they have the right to remain silent, that anything they say may be used against them in court, and that they are entitled to the presence of an attorney. Juveniles, as well as adults, are entitled to be apprised of their constitutional rights pursuant to Miranda .

B.T. , 82 A.3d at 436.

Once a person asserts his or her election to remain silent, the right must be "scrupulously honored" by the authorities. Michigan v. Mosley , 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). "If an individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease, and any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise." Commonwealth v. Frein , 206 A.3d 1049, 1064 (Pa. 2019).

"If a suspect makes a statement during custodial interrogation, the burden is on the [Commonwealth] to show, as a prerequisite to the statement's admissibility in the [Commonwealth's] case in chief, that the defendant voluntarily, knowingly and intelligently waived his rights." B.T. , 82 A.3d at 436. In determining whether a juvenile's waiver was valid, we analyze the totality of the circumstances, including,

the juvenile's youth, experience, comprehension, and the presence or absence of an interested adult. Other factors to consider in this context also include: (1) the duration and means of the interrogation; (2) the juvenile'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 the juvenile's ability to withstand suggestion and coercion.

N.B. , 187 A.3d at 945.

Instantly, because Appellant...