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HomeMy WebLinkAboutCP-21-CR-1624-2006COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARGES: (5) INDECENT ASSAULT (3 COUNTS) JACK LEE ROSENBERRY, OTN: K314135-3 : CP -21 -CR -1624-2006 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., April 1, 2008. In this criminal case, Defendant was charged with various sexual offenses involving two minors.' He was found guilty following a jury trial presided over by the Honorable Edward E. Guido of three counts of indecent assault. From the judgment of sentence for these offenses,3 Defendant has filed a direct appeal to the Pennsylvania Superior Court.4 Prior to trial, Defendant filed an omnibus pretrial motion for relief which included a motion to suppress evidence and a motion for review of any juvenile probation department records of the victims.5 Following a hearing conducted by the writer of this opinion, the motion to suppress was denied and an in -camera review of juvenile records' produced no information of benefit to the defense.$ The grounds for Defendant's appeal, as expressed in a statement of matters complained of on appeal, include the following: 1. The court erred in denying the Defendant's Motion to Suppress the defendant's statement to Children and Youth Services. 'See Information, filed August 10, 2006; Criminal Complaint, filed May 11, 2006. 2 Verdicts, June 28, 2007. s Order of Court, February 8, 2008. 4 Defendant's Notice of Appeal, filed February 15, 2008. s Defendant's Omnibus Pretrial Motions, filed September 28, 2007. 6 Order of Court, January 9, 2007. See Order of Court, October 19, 2006. s Order of Court, November 7, 2006. 2. The court erred in denying defense counsel the ability to review [T.C.'s] Cumberland County juvenile probation file to determine whether the file contained any relevant evidence pertaining to the allegations in this 9 case. This opinion in support of the pretrial orders appealed from is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS As the result of incidents allegedly occurring between January 1, 2000, and April 30, 2005,10 Defendant was implicated in numerous sexual offenses involving two boys. 11 Various charges were filed against Defendant on May 11, 2006,12 and he was formally arraigned on August 15, 2006. Defendant filed an omnibus pretrial motion for relief on September 28, 2006.13 In pertinent part, the motion sought (1) suppression of one or more incriminatory statements made by Defendant to a Cumberland County Children and Youth Services caseworker on the ground that they were involuntary 14 and (2) review of Cumberland County Juvenile Probation files relating to the victims with respect to "misconduct involving the theft/unauthorized use of an automobile," on the ground that such information would be exculpatory. 15 A hearing on these matters was held by the writer of this opinion. At the hearing, the Commonwealth presented the testimony of two witnesses, the affiant in the case, Detective Timothy D. Lively of the North Middletown Township, Cumberland County, Police Department, and Kimberly S. Lytle, a Cumberland 9 Defendant's Statement of Matters Complained of on Appeal, filed February 26, 2008. 10 See Information, filed August 10, 2006. " See Criminal Complaint, filed May 11, 2006. 12 Criminal Complaint, filed May 11, 2006. " Defendant's Omnibus Pretrial Motions, filed September 28, 2006. 14 Defendant's Omnibus Pretrial Motions, Motion To Suppress. 15 Defendant's Omnibus Pretrial Motions, Petition for Review and/or Copy of Alleged Victim's Juvenile Probation File. 2 County Children and Youth Services caseworker. Defendant did not call any witnesses or offer any exhibits. With respect to the motion to suppress, the evidence at the hearing revealed that Defendant had signed the following statement on April 3, 2006, at the end of an interview with Cumberland County Children and Youth Services Caseworker Lytle: Mr. Rosenberry, in a meeting on April 3, 2006 with Kimberly S. Lytle, caseworker with Cumberland County Children & Youth Services, confesses to assaulting [A.C.] and [T.C.] on a couple of occasions. Mr. Rosenberry states that he feels he was wrong in assaulting the children. Mr. Rosenberry agrees to any and all help regarding the children, [A.C.] and [T.C.]. This is a true and honest statement at this time. 16 The events leading up to this statement may be summarized as follows. On January 31, 2006, North Middleton Township Police Detective Timothy D. Lively received a referral concerning child abuse from Cumberland County Children and Youth Services, 17 and subsequently viewed an interview being conducted with one of the alleged victims, [A.C.], on February 3, 2006,18 and an interview being conducted with the other alleged victim, [T.C.], on February 10, 2006.19 On March 20, 2006, the detective and Cumberland County Children and Youth Services Caseworker Kimberly S. Lytle conducted their own interview with the second alleged victim, [T.C.].20 On March 23, 2006, Detective Lively interviewed Defendant21 at the detective's office in the North Middletown Township Police Station.22 Defendant 16 N.T. 32-33, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006; Commonwealth's Ex. 2, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 17 N.T. 34, Hearing on Defendant's Omnibus Pretrial Motions, January 8, 2007. " N.T. 34, Hearing on Defendant's Omnibus Pretrial Motions, January 8, 2007. 19 N.T. 35, Hearing on Defendant's Omnibus Pretrial Motions, January 8, 2007; Commonwealth Ex. 3 (probable cause affidavit for criminal complaint), Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 20 N.T. 35, Hearing on Defendant's Omnibus Pretrial Motions, January 8, 2007. 21 N.T. 35, Hearing on Defendant's Omnibus Pretrial Motions, January 8, 2007. 3 appeared voluntarily for the interview at a prearranged time, 23 he was advised that he was not under arrest and was free to leave at any time ,24 the detective was in civilian clothe S,25 the interview lasted 26 minutes,26 and Defendant denied any sexual misconduct,27 terminated the interview, 28 and left .29 Detective Lively reported to Ms. Lytle that he had conducted an interview with Defendant and that Defendant had not admitted to any wrongdoing. 30 As part of her duties with Cumberland County Children and Youth Services,31 Ms. Lytle arranged an interview with Defendant ,32 who appeared at the Cumberland County Human Services Building with his wife at 1:00 p.m. on March 27, 2006.33 This interview was not preceded by any instruction or request by police to Ms. Lytle that she interview Defendant .34 The interview by Ms. Lytle was conducted in a small interview room with cushioned chairs,35 Ms. Lytle was dressed in casual clothes,36 Defendant indicated 22 N.T. 10, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 23 N.T. 10, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 24 N.T. 12, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 2s N.T. 13, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 26 N.T. 12, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 27 N.T. 12, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 2s N.T. 12, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 29 N.T. 12, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. so N.T. 14, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006; N.T. 6, Hearing on Defendant's Omnibus Pretrial Motions, January 8, 2007. 31 In cases of this type, Ms. Lytle was required to offer Defendant, as an alleged perpetrator of child abuse, an opportunity to be interviewed. N.T. 19, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 12 N.T. 19-20, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. " N.T. 21, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 34 N.T. 28-29, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006; N.T. 31, 37, Hearing on Defendant's Omnibus Pretrial Motions, January 8, 2007. " N.T. 22, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 36 N.T. 21, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 11 that he was aware of the allegations as a result of his interview with Detective Lively,37 Defendant was provided with a standard letter from Cumberland County Children and Youth Services in accordance with "the Child Protective Services Law and Department of Public Welfare regulations" informing him, inter alia, that he was suspected of "sexual abuse or exploitation, ,38 the interview lasted from 45 minutes to an hour '39 Ms. Lytle did not threaten Defendant '40 Defendant was not under arrest41 and was free to leave '42 Defendant denied any sexual misconduct with the children ,43 and he left .44 Ms. Lytle advised police of the result of this interview. 45 Because she did not believe Defendant ,46 and not at the instruction or request of police ,47 Ms. Lytle arranged for a second interview with Defendant, on April 3, 2006.48 This interview lasted an hour ,49 Defendant was not threatened ,50 37 N.T. 21, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. " N.T. 24, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006; Commonwealth's Ex. 1 (letter), Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. s9 N.T. 23, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 40 N.T. 25, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 41 N.T. 21, Hearing on Defendant's Omnibus Pretrial Motions, January 8, 2007. 42 N.T. 21, Hearing on Defendant's Omnibus Pretrial Motions, January 8, 2007. 43 N.T. 23, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 44 N.T. 26, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. Ms. Lytle spoke with Defendant's wife at his request, prior to their departure. N.T. 24, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 45 N.T. 27, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006; N.T. 29, Hearing on Defendant's Omnibus Pretrial Motion, January 8, 2007. 46 N.T. 28, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 47 N.T. 28, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006; N.T. 29, 31, Hearing on Defendant's Omnibus Pretrial Motion, January 8, 2007. 48 N.T. 27, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 49 N.T. 29, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. so N.T. 29, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. E he was not under arrest," he was free to leave,52 and he did not ask to leave.53 In the interview, Ms. Lytle did not raise her voice 54 and discussed with Defendant whether he felt he needed help because of abuse which he claimed had been inflicted upon him as a child.55 She told him that she did not want him to admit to something that he did not do,56 Defendant's demeanor included an aversion to looking at Ms. Lytle at certain times, a quivering of his lip, and shaking in the knee.57 He told Ms. Lytle that he might as well say that he did it, because otherwise it would not go away,58 and requested that he be permitted to turn himself in rather than be embarrassed by an arrest at his home .59 At the conclusion of the interview, Defendant proposed that he sign a written statement, in the form quoted above, which he did.60 Ms. Lytle provided him with a "resource packet" relating to counseling and crisis intervention information, and he left .61 Following this interview, Ms. Lytle filed an agency report concluding that abuse was "indicated" with respect to one child; she had previously filed a similar report with respect to the other.62 51 N.T. 21, Hearing on Defendant's Omnibus Pretrial Motions, January 8, 2007. Sz N.T. 21, Hearing on Defendant's Omnibus Pretrial Motions, January 8, 2007. " N.T. 15, Hearing on Defendant's Omnibus Pretrial Motions, January 8, 2007. 14 N.T. 30, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. " N.T. 30-31, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 16 N.T. 31, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 57 N.T. 32, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. " N.T. 31, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. s9 N.T. 31-32, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 60 N.T. 32-33, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 61 N.T. 34, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 62 See N.T. 15-16, 28, 31-32, Hearing on Defendant's Omnibus Pretrial Motions, January 8, 2007. 0 Detective Lively ultimately filed a criminal complaint in this matter on May 11, 2006.63 Defendant was informally arraigned in the office of a magisterial district judge on May 18, 2006.64 With respect to Defendant's motion for a review of the Cumberland County Juvenile Probation files relating to the victims for purposes of determining whether "misconduct involving the theft/unauthorized use of an automobile" would be exculpatory, it was agreed by counsel for the Commonwealth and Defendant (a) that only one alleged victim was the subject of a juvenile file and (b) that no adjudication of delinquency had resulted from the incident in question .65 The position of Defendant that information regarding misconduct of that juvenile involving an automobile might be exculpatory to Defendant was expressed by Defendant's counsel as follows: DEFENSE COUNSEL: I indicated prior to Your Honor taking the bench to [the prosecuting attorney] that it was my understanding that there was an unauthorized use of an automobile charge or something to that effect, and that actually is information that seemed to have been gleaned from Children and Youth Services' records, which is why that is part of this motion. It is my position that there is a motive on the part of the young gentlemen to make such an allegation in an effort to get out of trouble, if you will, with their mother. This is a household—for background information only—this is a household in which these alleged victims have a sister slightly older than them who allegedly or was abused in a sexual nature at some point in her past. It is our position that throughout that household the sister lied; and in front of these alleged victims, excuses were made for her misbehavior constantly as a result of she does this because she was abused, and it would be our position that to get out of trouble, the young men concocted a story that they did this because Mr. Rosenberry did this to them .66 63 Criminal Complaint, filed May 11, 2006. 64 N.T. 37, Hearing on Defendant's Omnibus Pretrial Motions, January 8, 2007. 6s N.T. 5, 7, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 66 N.T. 6, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 7 DEFENSE COUNSEL: The children—it is our position, Your Honor, that the alleged victims made up the story about Mr. Rosenberry committing these sexual offenses as a result of getting caught driving to someone else's vehicle.... THE COURT: Why would they do that? How would that provide the motive to accuse Mr. Rosenberry of sexual offenses? DEFENSE COUNSEL: Because they have been raised in a household where accusations get them out of trouble of a sexual nature. And that would, of course, be, for information; that is for trial.... I may be totally off the wall, but I don't have access to this information, until it was indicated it is an authorized use, I didn't even know the nature of the charge that had been filed against the child. The Commonwealth has information, but I am in the dark, and they are juveniles, so I don't have access to it. 67 In short, it was the defense position that the juvenile in question, having seen his sister secure leniency from their mother for misconduct by false claims of abuse, may have been motivated to accuse Defendant of abusing him in order to secure similar leniency for his own misconduct involving an automobile. In this regard, Defendant's counsel noted that "I don't have any time frame, I don't have information on that. ,68 Pursuant to an agreement between the Commonwealth and Defendant's counsel, the court consented to conduct an in -camera inspection of the juvenile file in question and to reveal any portion thereof deemed by the court to be exculpatory to counsel.69 Pursuant to further agreement of counsel, the file would be sealed and made part of the record for purposes of any necessary appellate 70 review. An order in accordance with this agreement of counsel was entered on October 19, 2006.71 The court conducted the in -camera inspection, but it revealed 67 N.T. 6-7, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 6s N.T. 7, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 69 N.T. 36-37, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 70 N.T. 37, Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2006. 71 Order of Court, October 19, 2006. '3 that the alleged vehicle offense(s) of the juvenile had occurred 72 and been the subject of a juvenile petition 71 well after the child abuse referrals had been received by Cumberland County Children and Youth Services .74 Accordingly, the allegations of child abuse could not have been inspired by a desire on the part of the child to secure leniency in connection with the alleged vehicle offenses. For this reason, the court entered the following order with respect to Defendant's motion for review of the said files: AND NOW, this 7th day of November, 2006, upon consideration of Defendant's Omnibus Pretrial Motion, following a hearing held on October 19, 2006, following a hearing held on October 19, 2006, and following an in -camera inspection of the juvenile records of T.C., an alleged victim in the above -captioned case, and it appearing that the juvenile's record would not be of benefit to the defense in this case, the record will not be made available to the defense. A SEALED copy of the juvenile record is hereby made part of the record in this case, for purposes of any appellate review of this order. The Clerk of Courts is directed to enter the sealed document on the record as Court's Exhibit 1.75 DISCUSSION Suppression. The law pertaining to the suppression of a confession on the ground that it was involuntary, in the context of a defendant's admission to a county children and youth services caseworker, has been stated by the Pennsylvania Supreme Court as follows: When deciding a motion to suppress a confession, the touchstone inquiry is whether the confession was voluntary. Voluntariness is 72 March 21, 2006, March 23, 2006, March 30, 2006, April 4, 2006, April 7, 2006. See Court's Ex. 1 (sealed), filed November 7, 2006. 73 June 9, 2006. See Court's Ex. 1 (sealed), filed November 7, 2006. 74 The child abuse referral with respect to one alleged victim was received by Cumberland County Children and Youth Services on January 30, 2006; the referral with respect to the other alleged victim was received by Cumberland County Children and Youth Services on February 10, 2006. N.T. 16, Hearing on Defendant's Omnibus Pretrial Motions, January 8, 2007. Both children had been interviewed and made child abuse allegations against Defendant by February 10, 2006. N.T. 34-35, Hearing on Defendant's Omnibus Pretrial Motions, January 8, 2007; Commonwealth's Ex. 3 (probable cause affidavit for criminal complaint), Hearing on Defendant's Omnibus Pretrial Motions, October 19, 2007. 75 Order of Court, filed November 7, 2006. 0 determined from the totality of the circumstances surrounding the confession. 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. The Commonwealth has the burden of proving by a preponderance of the evidence that the defendant confessed voluntarily. 76 . . . 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.'' The fact that an interviewee is nervous, receives an advisory letter from the agency of the type provided to Defendant, is not administered Miranda warnings, and is advised of the possibility of help for his problems does not compel a conclusion that his or her admission to a children's services caseworker is involuntary. Commonwealth v. Nester, 551 Pa. 157, 709 A.2d 879 (1998). In the present case, where the interview in which Defendant provided an admission to a county children and youth services caseworker was conducted without police presence and lasted only an hour, where Defendant had not been arrested, was free to leave, was not threatened, was not subjected to a loud tone of voice, and was told by the caseworker that she did not want him to admit to something he did not do, and where it was Defendant's idea to put an admission in writing, the totality of circumstances led the court to conclude that Defendant's admission of misconduct was voluntary. Juvenile Records. Juvenile records are, of course, highly confidential. In this regard, the Pennsylvania Superior Court has stated the following: There is a compelling interest in protecting minor children's privacy rights and the protection of a minor child's privacy is a key aspect of the 76 Commonwealth v. Nester, 551 Pa. 157, 162-63, 709 A.2d 879, 881(1998) (citations omitted) (Footnotes omitted). 77 Commonwealth v. Nester, 551 Pa. 157, 164, 709 A.2d 879, 882 (1998) (citations omitted). 10 Juvenile Act. This Court has held that "Pennsylvania's Juvenile Act demonstrates our legislature's compelling interest in safeguarding children involved in juvenile proceedings." In re M.B., 819 A.2d 59, 65 (Pa.Super. 2003). Additionally, the confidentiality of documents prepared in the course of proceedings under the Juvenile Act is protected from dissemination. 42 PA.C.S.A. § 6307. Only persons "having a legitimate interest in the proceedings" may also have access to the information, but only with prior approval of the court. 42 Pa. C.S.A. § 6307(7). In re M.B., 2005 PA Super. 74, ¶8, 869 A.2d 542, 546. In the present case, counsel agreed that the court should conduct an in - camera review of the juvenile records pertaining to one of the alleged victims, T.C., and disclose potentially exculpatory contents involving an alleged vehicle offense by the juvenile to counsel. The court reviewed the records and concluded, for the reasons indicated in the recitation of facts, that their content would not be of benefit to Defendant. A copy of the records appears in the file for purposes of appellate review of that ruling. For the foregoing reasons, it is believed that the court's pretrial rulings respecting suppression of evidence and disclosure of juvenile records were not erroneous. Michelle H. Sibert, Esq. Chief Deputy District Attorney Linda S. Hollinger, Esq. Senior Assistant Public Defender 11 BY THE COURT, J. Wesley Oler, Jr., J.