Com. v. Silva, J. ( 2019 )

J-S79031-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUAN RAMON SILVA, :
:
Appellant : No. 1074 MDA 2018
Appeal from the Judgment of Sentence Entered June 22, 2018
in the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0005476-2016
BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 15, 2019
Juan Ramon Silva (“Silva”) appeals from the judgment of sentence
imposed following his convictions of two counts each of aggravated indecent
assault – complainant less than 13 years old, indecent assault of a person less
than 13 years of age, and corruption of minors.1 We affirm.
The trial court set forth the relevant factual and procedural history
underlying the instant appeal as follows:
On May 10, 2016[, the] Lancaster City Bureau of Police
received a report from the Lancaster County Children and Youth
Agency that [Silva] had had inappropriate sexual contact with his
step-grandchildren, I.R. [born in August 2001] and A.R. [born in
August 2003] some years prior. Both children were forensically
interviewed at the Lancaster County Children’s Alliance regarding
the allegations. Each child disclosed that on separate occasions
in 2008 or 2009, [Silva] digitally penetrated them during
overnight visits at his home at 603 S. Prince Street in Lancaster,
Lancaster County, Pennsylvania.
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1 18 Pa.C.S.A. §§ 3125(a)(7), 6318(a)(1), 6301(a)(1).
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Based on these disclosures, Detective Aaron Harnish
[(“Detective Harnish”)] contacted [Silva] on August 22, 2016[.]
[Silva] voluntarily came in to the Lancaster Bureau of Police to be
interviewed. The two-and-a-half-hour interview was captured on
video. At the outset of that interview, [Silva] was read his
Miranda[2] rights[,] and he indicated that he was making a
knowing, voluntary, and intelligent waiver of those rights. [Silva]
was also advised of his right to counsel[,] and indicated that he
was willing to waive that right. During the first half of the
interview, [Silva] made admissions that he had physical contact
with the victims, but denied sexual contact. After taking a short
break[,] Detective Harnish informed [Silva] that based on a
review of the evidence in this case and the statements made by
[Silva], charges against [Silva] had been approved[,] and
Detective Harnish continued to interrogate him. [Silva] continued
to deny intentional sexual conduct but made admissions that skin-
on-skin contact may have occurred. Following the interview,
[Silva] was taken into custody.
Prior to trial, [Silva] filed two pre-trial suppression
[M]otions.[FN] At the hearing on both [M]otions, [the trial court]
asked counsel to outline the specific suppression issues to be
addressed. [Silva] stipulated that he was properly Mirandized at
the beginning of the interrogation and that there was no challenge
to the first half of the interview. Counsel then acknowledged that
the only challenge being raised was whether he was unfairly
induced into inculpating himself by Detective Harnish’s
interrogation tactics. After a careful review of the record and the
law, [the trial court] found [Silva’s] claims meritless and denied
his suppression [M]otion on November 13, 2017.
[FN]The first suppression [M]otion broadly challenged that
his waiver of Miranda rights prior to the interview was not
knowing, voluntary, and intelligent[,] although it did not
aver a specific reason as to why this was the case. The
second suppression [M]otion challenged that Detective
Harnish unfairly induced [Silva] into inculpating himself.
After a four-day jury trial[, Silva] was convicted on January
25, 2018 of [the above-mentioned crimes]. [The trial court]
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2 Miranda v. Arizona, 384 U.S. 436 (1966).
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subsequently sentenced [Silva,] on June 22, 2018[,] to an
aggregate [term] of ten to twenty (10-20) years of incarceration.
[Silva] filed his Notice of [] Appeal on July 2, 2018[,] and his
[court-ordered Pa.R.A.P. 1925(b)] Concise Statement of Errors on
July 19, 2018[,] to which the Commonwealth provided a timely
response.
Trial Court Opinion, 8/14/18, at 1-3 (citations to record and some footnotes
omitted).
On appeal, Silva raises the following question for our review:
Whether the trial court erred in denying [Silva’s] [M]otion to
suppress the portion of [Silva’s] video-recorded statements to law
enforcement where [Silva] admits to having physical contact with
the victims[,] when the record clearly demonstrated that [Silva]
requested an attorney and no longer wished to answer questions?
Brief for Appellant at 4.
We adhere to the following standard of review:
In reviewing the denial of a motion to suppress, our responsibility
is to determine whether the record supports the suppression
court’s factual findings and legitimacy of the inferences and legal
conclusions drawn from those findings. If the suppression court
held for the prosecution, we consider only the evidence of the
prosecution’s witnesses and so much of the evidence for the
defense as, fairly read in the context of the record as a whole,
remains uncontradicted. When the factual findings of the
suppression court are supported by the evidence, the appellate
court may reverse if there is an error in the legal conclusions
drawn from those factual findings.
Commonwealth v. Arnold, 932 A.2d 143, 145 (Pa. Super. 2007) (citation
omitted).
Silva claims that he asserted his right to an attorney when he realized
that Detective Harnish would not allow him to leave the interview. Brief for
Appellant at 10. According to Silva, Detective Harnish continued to question
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Silva, even after he requested an attorney, in an attempt to obtain a
confession. Id. at 10-11; see also id. at 11 (arguing that Detective Harnish
lied to Silva by indicating that an assistant district attorney was watching the
interview, and by stating that there was medical evidence establishing that
digital penetration had occurred years prior). Silva asserts that any
statements he made to Detective Harnish, after expressing his wish for an
attorney, should have been suppressed. Id. at 11-12.3
The trial court addressed Silva’s claim as follows:
[Silva’s] only claim on appeal is that his statement to
Detective Harnish should have been suppressed at trial because
he requested an attorney and no longer wished to answer
questions. … [Silva] did not raise this claim in the suppression
hearing held on October 23, 2017. In fact, [Silva] stipulated at
the beginning of that hearing that his Miranda waiver was
knowing, voluntary, and intelligent. [Silva] never challenged that
he was denied the right to counsel or was otherwise forced to
answer questions. For this reason, [the trial court] considers his
appeal on this issue waived.
Even if [Silva] had properly preserved this issue[,] it is
meritless. An invocation of the right to remain silent or request
for an attorney must be unambiguous. After careful review of the
two-and-a-half-hour interview, [Silva] at no time unambiguously
requested an attorney or indicated that he no longer wished to
answer questions. The only point in the interview in which [Silva]
might have mentioned obtaining counsel was mumbled and could
be interpreted as either: “I might call her a liar[,]” or “I might
have to call a lawyer.” If it is the former, which indeed seems
most likely given the context in which the statement was given,
there is no appealable issue. If it is the latter, it would not qualify
as an unequivocal request for an attorney[,] nor an indication that
____________________________________________
3 Silva failed to cite to any relevant legal authority in support of his claim.
See Pa.R.A.P. 2119(a) (providing that the argument shall include “such
discussion and citation of authorities as are deemed pertinent.”).
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he no longer wished to answer questions. Indeed, the assertion
that [Silva] no longer wished to answer questions is belied by the
fact that he told Detective Harnish that he did not regret coming
in to talk to him[,] even after he was told that he was being
charged. [Silva’s] contention is therefore meritless.
Trial Court Opinion, 8/14/18, at 3-4 (citations and some paragraph breaks
omitted). Our review confirms that Silva failed to preserve his claim in his
Motion to suppress, at the suppression hearing, or in a post-hearing
submission.4 See Commonwealth v. Carper, 172 A.3d 613, 619 (Pa. Super.
2017) (indicating that a defendant must preserve a suppression issue in a
motion to suppress, at a suppression hearing, or in a post-hearing
submission); see also Pa.R.A.P. 302 (providing that “[i]ssues not raised in
the lower court are waived and cannot be raised for the first time on appeal.”).
Thus, his sole claim on appeal is waived.
Because Silva failed to preserve his claim for review, and we otherwise
discern no error by the trial court, we affirm Silva’s judgment of sentence.
____________________________________________
4 We additionally note that while the video recording of the challenged
interview was admitted into evidence at trial, Silva failed to include a copy of
the video in the certified record. See Commonwealth v. Preston, 904 A.2d
1, 7 (Pa. Super. 2006) (stating that “the responsibility rests upon the appellant
to ensure that the certified record on appeal is complete in the sense that it
contains all of the materials necessary for the reviewing court to perform its
duty.”).
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/2019
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