J-A22007-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROBERT LEE DUVALL

Appellant No. 1900 MDA 2013

Appeal from the Judgment of Sentence July 15, 2013

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0001394-2012

BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J. FILED MARCH 09, 2015

Appellant, Robert Lee Duvall, appeals from the judgment of sentence 

entered July 15, 2013, by the Honorable Michael E. Bortner, Court of 

Common Pleas of York County. Duvall alleges on appeal that the use of, 

inter alia, deceptive police tactics rendered his confession made during a 

non-custodial interrogation involuntary. After careful review, we affirm. 

On September 7, 2011, Pennsylvania State Trooper Neal Navitsky 

received a report of sexual assault regarding P.B., who has Downs 

Syndrome. P.B. reported to her job coach at the Penn-Mar Organization that 

her stepfather, Duvall, had sexually assaulted her on numerous occasions. 

Trooper Navitsky contacted Duvall and requested that he come in for an 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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interview. Duvall voluntarily went to the police barracks for an interview. 

Trooper Navitsky and Trooper Jeffrey Gotwals interviewed Duvall in a 

kitchenette at the barracks for 93 minutes, from 5:27 p.m. to 7:00 p.m.1 

At the beginning of the interview, Trooper Navitsky advised Duvall that 

he was not in custody, that he was free to leave and that he was under no 

obligation to answer any questions. Duvall acknowledged these rights. 

Trooper Navitsky then began to question Duvall regarding the allegations of 

sexual abuse. Trooper Navitsky informed Duvall, untruthfully, that 

preliminary results of a rape kit conducted on P.B. indicated recent sexual 

activity. Trooper Navitsky also insinuated that although he had not yet 

received the DNA test results, the results would likely indicate that Duvall 

had perpetrated the rape. Duvall repeatedly denied that he had raped P.B. 

Trooper Navitsky also indicated, again untruthfully, that the rape kit had 

proven the victim had been penetrated by a male penis, and he insinuated 

that Duvall’s DNA had been detected. Duvall again insisted that he had not 

raped P.B. After vacillating under questioning, Duvall confessed that he 

had raped P.B. 

After again informing Duvall that he was not in custody and that any 

statement he wished to make was voluntary, Trooper Navitsky handed 

____________________________________________

1 The transcript reveals that although Trooper Gotwals was present during 

the interview and asked Duvall some preliminary questions, Trooper 

Navitsky, in large part, singly conducted the interview. 
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Duvall a Noncustodial Statement Form. Duvall acknowledged on the written 

form that having sex with P.B. was a mistake and that it would never 

happen again. Trooper Navitsky then concluded the interview. 

Duvall was later charged with Rape of a Mentally Disabled Person,2

Involuntary Deviate Sexual Intercourse (“IDSI”) of Person with Mental 

Disability,3 Aggravated Indecent Assault,4 Aggravated Indecent Assault of 

Person with Mental Disability,5 Sexual Assault,6Indecent Assault,7and 

Indecent Assault of Person with Mental Disability.8 Duvall filed a pretrial 

motion to suppress his confession, on the grounds that it was involuntary. 

Following a hearing, the trial court denied Duvall’s motion, although it 

permitted Duvall to raise the issue of voluntariness before the jury at trial. 

Following a jury trial, Duvall was convicted of Rape of a Mentally 

Disabled Person, IDSI of Person with Mental Disability, and Indecent Assault 

of a Person with Mental Disability. The trial court sentenced Duvall to an 

aggregate term of five to ten years’ incarceration. Duvall filed a timely postsentence motion, which the trial court denied. This timely appeal followed.

Duvall frames his issue on appeal as follows.

____________________________________________

2 18 Pa.C.S.A. § 3121(a)(5).

3 18 Pa.C.S.A. § 3123(a)(5).

4 18 Pa.C.S.A. § 3125(a)(1).

5 18 Pa.C.S.A. § 3125(a)(6).

6 18 Pa.C.S.A. § 3124.1.

7 18 Pa.C.S.A. § 3126(a)(1).

8 18 Pa.C.S.A. § 3126(a)(6). 
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Did the lower court err in denying Duvall’s motion to suppress as 

involuntary his confession during a non-custodial interrogation 

where (a) the trooper admitted that he repeatedly lied to Duvall 

about DNA and other evidence and suggested he would not go to 

jail if he admitted to having consensual sex with P.B.; (b) the 

trooper admitted that he lied for the purposes of “breaking down 

barriers”; (c) the trooper admitted that the confession did not 

include any corroboration beyond the act of sex; (d) Duvall had 

repeatedly denied having sex with P.B.; (e) the trooper indicated 

that he did not and a jury would not believe him; and (f) he 

gave in and confessed due to the unrelenting deception and 

manipulation?

Appellant’s Brief at 12. 

We review the denial of a motion to suppress evidence as follows.

Our standard of review in addressing a challenge to a trial 

court’s denial of a suppression motion is limited to determining 

whether the factual findings are supported by the record and 

whether the legal conclusions drawn from those facts are 

correct.

[W]e may consider only the evidence of the prosecution 

and so much of the evidence for the defense as remains 

uncontradicted when read in the context of the record as a 

whole. Where the record supports the findings of the 

suppression court, we are bound by those facts and may 

reverse only if the court erred in reaching its legal 

conclusions based upon the facts.

Further, [i]t is within the suppression court’s sole province as 

factfinder to pass on the credibility of witnesses and the weight 

to be given their testimony.

Commonwealth v. Houck, 102 A.3d 443, 455 (Pa. Super. 2014) (internal 

citations and quotations omitted).

We note at the outset that Duvall concedes that he was not in custody 

when the interview took place. See Appellant’s Brief at 15. However, “we 

must still examine the totality of the circumstances surrounding the 
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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.” 

Commonwealth v. Nester, 709 A.2d 879, 882 (Pa. 1998) (internal quotes 

and citation omitted). 

“When a defendant alleges that his ... confession was involuntary, the 

question 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.” Commonwealth v. Mitchell, --- A.3d ---, 2014 WL 

7150724, at *7 (Pa., filed Dec. 16 2014) (citation omitted). When assessing 

the voluntariness pursuant to the totality of the circumstances, we examine 

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.

Nester, 709 A.2d at 882 (citation omitted). The Commonwealth must prove 

by a preponderance of the evidence that the defendant confessed 

voluntarily. See id.

The totality of the circumstances here reveals that Duvall’s confession 

was voluntary. It is uncontested that Duvall participated in the police 

interview on his own free will. See Commonwealth v. Edmiston, 634 

A.2d 1078, 1087-88 (Pa. 1993) (overruled on other grounds) (defendant’s 
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decision to voluntarily participate in interview at police station evidenced 

lack of coercion). Trooper Navitsky informed Duvall multiple times that he 

was not in custody and was free to leave at any time. See Commonwealth 

v. Johnson, 42 A.3d 1017, 1029 (Pa. 2012) (fact that officer repeatedly 

informed defendant of his rights and defendant’s expressed understanding 

indicated lack of coercion). The interview commenced at 5:27 p.m., lasted 

just 93 minutes, and Duvall never indicated a desire to terminate the 

interview. See Nester, supra, 709 A.2d at 883 (interview lasting 

approximately one hour and fifteen minutes was not unduly long). Duvall 

acknowledged that Trooper Navitsky did not threaten him or otherwise make 

any impermissible inducements in exchange for Duvall’s confession, and 

Duvall in fact recognized that the Trooper Navitsky was respectful and 

treated him fairly. See Commonwealth v. Johnson, 305 A.2d 5, 7 (Pa. 

1973) (lack of improper inducements or promises by law enforcement factor 

in favor of admissibility). There is no evidence to suggest that Trooper 

Navitsky denied Duvall food or water or that he was otherwise mistreated in 

any way. 

The heart of Duvall’s argument is that Trooper Navitsky falsely 

insinuated that preliminary results of a rape kit conducted on P.B. indicated 

sexual contact had occurred and that the DNA test results would inevitably 

reveal that Duvall had raped the victim. However, we note that the 

Pennsylvania Supreme Court has found that the use of artifice or even 

intentional misrepresentations to obtain a confession is insufficient to make 
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an otherwise voluntary confession inadmissible “where the deception does 

not produce an untrustworthy confession or offend basic notions of fairness.” 

See Commonwealth v. Williams, 640 A.2d 1251, 1259 (Pa. 1994) (claim 

that police falsely stated that they had located a gun sold by appellant which 

was of the same caliber used in the crime, was not sufficient to render a 

confession involuntary absent other coercive circumstances); see also

Commonwealth v. Jones, 322 A.2d 119 (Pa. 1974) (finding confession 

was voluntary even though, after the defendant gave an initial exculpatory 

statement, the detective falsely claimed that a co-conspirator had implicated 

him). 

Here, although Trooper Navitsky never affirmatively indicated that 

DNA test results positively identified Duvall as the perpetrator of the rape, 

this artifice was certainly insinuated and he did not disabuse Duvall of this 

notion. Nonetheless, as the totality of the circumstances detailed above 

otherwise evidence an almost total lack of coercive circumstances, we do not 

find this misrepresentation such that it was likely to cause an untrustworthy 

confession. 

As further evidence of coercion, Duvall also points to Trooper 

Navitsky’s insistence during the interview that he had sex with the victim, 

despite Duvall’s initial denials. Duval seems not to grasp that the point of 

the interrogation process is to elicit a confession. This volleying back and 

forth is a standard part of that process and does not, in itself, give this Court 

cause for concern. “Not all psychological persuasion is prohibited.” Nester, 
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supra, at 884 (citation omitted). It is only when interrogation becomes so

“manipulative or coercive that it deprived the defendant of his ability to 

make a free and unconstrained decision to confess” that voluntariness 

concerns are implicated. See Mitchell, supra. Such is not the case here. 

In summary, the circumstances of the confession, viewed in their 

totality, demonstrate that Duvall was not subject to overbearing physical or 

mental coercion such that would render his confession involuntary. We are 

therefore satisfied that the Commonwealth met its burden of proving by a 

preponderance of the evidence that Duvall’s confession was voluntary. 

Accordingly, the trial court properly denied Duvall’s suppression motion, and 

we affirm Duvall’s judgment of sentence. 

Judgment of sentence affirmed. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/9/2015