Com. v. Nester

Citation551 Pa. 157,709 A.2d 879
PartiesCOMMONWEALTH of Pennsylvania, Appellant v. Jeffrey NESTER, Appellee.
Decision Date25 March 1998
CourtUnited States State Supreme Court of Pennsylvania

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION OF THE COURT

NEWMAN, Justice.

During an interview with a caseworker from the Child Protective Service unit (CPS) of Berks County Children and Youth Services (BCCYS), appellee Jeffrey Nester (Nester) confessed to sexually abusing his girlfriend's minor daughter. The Court of Common Pleas of Berks County (suppression court) granted Nester's motion to suppress the confession, holding that it was involuntary, and the Superior Court affirmed. The Commonwealth now appeals from the Order of the Superior Court. We reverse.

When the Commonwealth appeals from a suppression order, we follow a clearly defined standard of review and consider only

                the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted.  Commonwealth v.  Pickron, 535 Pa. 241, 634 A.2d 1093 (1993).  The suppression court's findings of fact bind an appellate court if the record supports those findings.  Id.  The suppression court's conclusions of law, however, are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts.  See Thatcher's Drug Store of West Goshen, Inc. v. Consolidated Supermarkets, Inc., 535 Pa. 469, 636 A.2d 156 (1994);  Commonwealth ex rel. Gibson v. DiGiacinto, 497 Pa. 66, 439 A.2d 105 (1981).  Whether a confession is voluntary is a conclusion of law, Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985), and conclusions of law are subject to plenary review, Commonwealth v. Morley, 545 Pa. 420, 681 A.2d 1254 (1996).  See also United States v. Hernandez, 93 [551 Pa. 161] F.3d 1493 (10th Cir.1996) (question of whether a statement was voluntary is a question of law reviewed de novo);   Lovejoy v. United States, 92 F.3d 628 (8th Cir.1996) (underlying factual determinations are reviewed for clear error, but question of voluntariness is a question of law subject to de novo review);  Miller v. Fenton, 796 F.2d 598 (3d Cir.), cert. denied sub nom.  Miller v. Neubert, 479 U.S. 989, 107 S.Ct. 585, 93 L.Ed.2d 587 (1986) (issue of voluntariness is a legal question rather than factual question).  With these standards in mind, we turn to a review of the facts
                
FACTS AND PROCEDURAL HISTORY

On February 7, 1994, at approximately 2:00 p.m., Michelle Kauffman (Kauffman), a caseworker from CPS, received a report of suspected child abuse regarding K.K., a minor. Kauffman telephoned K.K.'s mother and requested that K.K's mother, K.K. and Nester come to the CPS office for a meeting concerning the allegations in the report. At 4:00 p.m., they arrived in the lobby of the CPS office. Kauffman first interviewed K.K. alone in a separate room for approximately forty-five minutes. She next interviewed K.K.'s mother alone for forty-five minutes. Kauffman then interviewed Nester alone for approximately one hour and fifteen minutes.

At the beginning of her interview with Nester, Kauffman handed him a BCCYS "rights" letter. The single page letter stated that BCCYS had received a report that Nester abused K.K. It also stated that CPS was required to investigate the allegations and report any evidence of abuse to law enforcement officials. 1 The letter further informed Nester that he had the right to an attorney. Nester appeared to read the letter, and when Kauffman asked him if he had any questions concerning the letter, he replied that he did not. She then began to question him regarding the allegations of abuse. Nester initially denied any wrongdoing. Kauffman offered to help Nester, K.K. and K.K.'s mother to get treatment and counseling. She also told Nester that if he did not talk to her, he would have to talk to the police and it would be harder talking to the police than it would be to her. 2 Nester then confessed to placing his penis in K.K.'s mouth. After making this admission, Nester began to shake severely and indicated that he wanted to commit suicide. Kauffman ended the interview and contacted a mental health crisis worker, who arranged for an ambulance to transport Nester to a hospital.

On February 9, 1994, Kauffman reported her interview with Nester to the Berks County District Attorney's Office. The District Attorney charged Nester with involuntary deviate sexual intercourse, 18 Pa.C.S. § 3123, aggravated indecent assault, 18 Pa.C.S. § 3125, indecent assault, 18 Pa.C.S.

882s 3126, indecent exposure, 18 Pa.C.S. § 3127, and endangering the welfare of a child, 18 Pa.C.S § 4304. Nester filed a pre-trial motion to suppress his confession to Kauffman, alleging that his statements were not voluntary. Following a hearing, the suppression court entered an Order granting the motion. The Commonwealth appealed the suppression court's Order and certified in its Notice of Appeal to the Superior Court that the Order terminated or substantially handicapped the prosecution. Pa.R.A.P. 311(d); see also Commonwealth v. Malinowski, 543 Pa. 350, 671 A.2d 674 (1996); Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985). A divided panel of the Superior Court affirmed the suppression court. Commonwealth v. Nester, 443 Pa.Super. 156, 661 A.2d 3 (1995).

DISCUSSION

When deciding a motion to suppress a confession, the touchstone inquiry is whether the confession was voluntary. 3 Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961). Voluntariness is determined from the totality of the circumstances surrounding the confession. Fulminante; Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Commonwealth v. Jones, 546 Pa. 161, 683 A.2d 1181 (1996). The question of voluntariness is not whether the defendant would have confessed without interrogation, but whether the interrogation was so manipulative or coercive that it deprived the defendant of his ability to make a free and unconstrained decision to confess. Miller (3d Cir.). The Commonwealth has the burden of proving by a preponderance of the evidence that the defendant confessed voluntarily. Commonwealth v. Watts, 319 Pa.Super. 179, 465 A.2d 1288 (1983), aff'd 507 Pa. 193, 489 A.2d 747 (1985); see also Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).

In this case, Nester was not in custody when he confessed and he concedes that the warnings described in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), were not required here. 4 Although Nester was not in custody, a government caseworker who had a duty to report her findings to law enforcement personnel questioned him. 23 Pa.C.S. § 6311; 23 Pa.C.S. § 6313; 55 Pa.Code § 3490.55. Therefore, we must still examine the totality of the circumstances surrounding the interrogation to determine if his confession was voluntary because a noncustodial interrogation "might possibly in some situations, by virtue of some special circumstances," result in an involuntary confession. Beckwith v. United States, 425 U.S. 341, 347-48, 96 S.Ct. 1612, 1616-17, 48 L.Ed.2d 1 (1976). When assessing voluntariness pursuant to the totality of the circumstances, a court should look at the following factors: the duration and means of the interrogation; the physical and psychological state of the accused; the conditions attendant to the detention; the attitude of the interrogator; and any and all other factors that could drain a person's ability to withstand suggestion and coercion. Jones, (citing Commonwealth v. Edmiston, 535 Pa. 210, 634 A.2d 1078 (1993)).

Here, the Superior Court failed to acknowledge the totality of the circumstances as the correct test for voluntariness. In fact, the phrase "totality of the circumstances" does not appear anywhere in the court's Opinion. Instead, the court stated the following standard for voluntariness:

A confession "must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence." Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964) (quoting Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 186-87, 42 L.Ed. 568 (1897)).

Nester, 443 Pa.Super. at 161, 661 A.2d at 5 (emphasis added). Bram, however, wrongly implies that the question of voluntariness should be resolved with a narrow "but-for" test, i.e., would the defendant have confessed but for the threat or promise. Fulminante; Miller (3d Cir.). The United States Supreme Court has explicitly declared that the quoted passage from Bram is not the correct standard for determining the voluntariness of a confession, instead the totality of the circumstances determine voluntariness. Fulminante. Nonetheless, after reviewing the facts of the present case, the Superior Court stated that Kauffman's "threat of police involvement, coupled with the implied promise of counseling if defendant cooperated, acted together to negate the voluntariness of defendant's statement." Nester, 443 Pa.Super. at 162, 661 A.2d at 6 (emphasis added). Thus, it appears that the Superior Court incorrectly employed the test from Bram to assess voluntariness instead of using the totality of the circumstances test. Although Nester argues that the Superior Court's review of the facts indicates that it applied the totality of the circumstances test, we cannot agree because of the court's failure to identify the test by name and because the court specifically quoted the incorrect standard from Bram. 5

Moreover, the totality of the circumstances here demonstrate...

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