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Com. v. Rodriguez-Quijano, J. ( 2020 )


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  • J-A30034-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    JONATHAN FERNANDO RODRIGUEZ-               :
    QUIJANO                                    :
    :   No. 407 MDA 2019
    Appellant               :
    Appeal from the Judgment of Sentence Entered January 24, 2019
    In the Court of Common Pleas of Berks County Criminal Division at
    No(s): CP-06-CR-0001485-2018
    BEFORE:      DUBOW, J., NICHOLS, J., and COLINS, J.*
    MEMORANDUM BY COLINS, J.:                           FILED FEBRUARY 26, 2020
    Appellant, Jonathan Fernando Rodriguez-Quijano, appeals from the
    aggregate judgment of sentence of fifteen to thirty years’ incarceration, which
    was imposed after his jury trial conviction for four counts of persons not to
    possess, use, manufacture, control, sell or transfer firearms.1 We affirm.
    The facts taken from the trial court opinion are as follows.
    On March 15, 2018, at 9:20 a.m., State Parole Agent Larry Snyder
    (Agent Snyder), Berks County Sheriff's Deputy Craig Thorn
    (Deputy Thorn) and two other Berks County Sheriff’s Deputies
    executed an arrest warrant for Fernando Rodriguez[, Appellant’s
    father,] at 735 N. 8th Street, Reading, Berks County,
    Pennsylvania (Residence). The bench warrant was issued on
    March 9, 2018, and contained the Residence’s address as the
    address for Fernando Rodriguez. A prior warrant and arrest for
    Fernando Rodriguez also listed this same address.
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    1   18 Pa.C.S. § 6105 (a)(1).
    J-A30034-19
    Upon arrival at the Residence, Deputy Thorn knocked on the door
    and encountered Appellant. Deputy Thorn was in a sheriff’s
    uniform with a taser and firearm on his utility belt. Deputy Thorn
    explained why he was there and asked Appellant if he knew
    Fernando Rodriguez. Appellant informed Deputy Thorn that
    Fernando Rodriguez previously resided at the Residence but was
    kicked out within the last two weeks. Appellant informed the
    officers that he was the owner of the Residence. Deputy Thorn
    asked Appellant if the officers could come in and look for Fernando
    Rodriguez. Appellant agreed and invited the officers into the
    Residence. Deputy Thorn was outside of the Residence on the
    front porch when he asked [Appellant] for permission to enter.
    Deputy Thorn and Agent Snyder entered the Residence and
    searched for Fernando Rodriguez. During their search they
    located two firearms in the Residence. An assault rifle was located
    in a first-floor back bedroom within arm’s reach of Appellant’s co-
    defendant, Luis Morales (Morales). Morales denied knowledge of
    the rifle and said he had just arrived two weeks ago from Florida.
    An additional rifle was located in Appellant’s second-floor
    bedroom. Drug paraphernalia and ammunition were observed in
    both rooms. None of the firearms were reported as stolen and
    nobody claimed ownership of them. Deputy Thorn instructed all
    of the people within the house to go to the first-floor front room
    where they remained until the Reading Police Department arrived.
    The Berks County Sheriff’s Office was not allowed to perform
    investigations so they called the Reading Police Department. They
    informed Appellant and the other civilians of the telephone call.
    There were three uniformed deputies present with four civilians
    and no guns were drawn. Nobody was in handcuffs. The Reading
    Police Department arrived a half hour from the time the deputies
    arrived. During that time, the deputies confirmed that Fernando
    Rodriguez was not present inside of the Residence.
    As the deputies waited for the Reading Police Department, Deputy
    Guy Lehman of the Berks County Sheriff’s Office (Deputy Lehman)
    made small talk with the individuals seated in the front room.
    During this conversation, Appellant spontaneously admitted that
    all of the firearms were his and that he had rifles in his room. This
    statement was not given in response to a question.
    After the Reading Police Department arrived on scene, Criminal
    Investigator Brian Errington of the Reading Police Department (CI.
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    J-A30034-19
    Errington) separated Appellant from the rest of the group and read
    him Miranda warnings. Appellant agreed to speak with C.I.
    Errington and did not ask for an attorney to be present. Appellant
    admitted that he had approximately four firearms in the house
    and that he was a convicted felon prohibited from possessing
    firearms. C.I. Errington also reviewed a search waiver for the
    Residence which was signed by Appellant and the other individuals
    in the home. The firearms located by law enforcement were
    collected and put into evidence. Appellant was taken into custody.
    Trial Court Opinion at 2-4.
    Appellant was arrested on March 15, 2018 and charged with five counts
    of persons not to possess, use, manufacture, control, sell or transfer firearms.
    Appellant filed a pre-trial motion to suppress any and all physical evidence on
    the basis that sheriff deputies unconstitutionally entered his home. In this
    motion, Appellant also sought to suppress any statements he made and
    argued he was subjected to custodial interrogation by sheriff deputies and was
    not given Miranda2 warnings prior to making any statements to the deputies.
    A hearing on Appellant’s suppression motion was held on July 9, 2018. On
    August 23, 2018, the trial court denied Appellant’s motion to suppress.
    Appellant proceeded to a jury trial on January 14, 2019, and he was found
    guilty of four counts of persons not to possess, use, manufacture, control, sell
    or transfer firearms.3 On January 24, 2019, Appellant was sentenced to an
    ____________________________________________
    2   Miranda v. Arizona, 
    384 U.S. 436
    (1966).
    3The Commonwealth withdrew one count of persons not to possess, use,
    manufacture, control, sell or transfer firearms before trial.
    -3-
    J-A30034-19
    aggregate sentence of fifteen to thirty years’ incarceration. Appellant filed a
    timely post-sentence motion on February 4, 2019. The trial court denied the
    post-sentence motion on February 6, 2019. On March 5, 2019, Appellant filed
    this timely direct appeal.4
    Appellant presents the following issue for our review:
    Whether the suppression court erred in denying Appellant’s pre-
    trial motion to suppress evidence.
    Appellant’s Brief at 4. In fact, however, Appellant includes four issues under
    separate headings in the argument section of his brief, with each heading
    encompassing several sub-issues, a total of eight issues for our review. We
    note that issues not presented in the statement of questions involved portion
    of an appellant’s brief are generally deemed waived. Pa.R.A.P. 2116(a) (“The
    statement of the questions involved must state concisely the issues to be
    resolved, expressed in the terms and circumstances of the case but without
    unnecessary detail.”); Werner v. Werner, 
    149 A.3d 338
    , 341 (Pa. Super.
    2016) (internal citation omitted) (“Issues not presented in the statement of
    questions involved are generally deemed waived.”). “However, such a defect
    may be overlooked where an appellant’s brief suggests the specific issue to
    be reviewed and appellant’s failure does not impede our ability to address the
    merits of the issue.” 
    Id. at 341
    (internal citation and brackets omitted). We
    ____________________________________________
    4Appellant filed his statement of errors complained of on appeal on March 29,
    2019. The trial court entered its opinion on May 20, 2019.
    -4-
    J-A30034-19
    are readily able to discern the issues from the argument section of Appellant’s
    brief and, therefore, we do not find waiver on this basis.
    We consider Appellant’s suppression issues in light of the following
    standard of review:
    In reviewing the denial of a suppression motion, our role is to
    determine whether the suppression court’s factual findings are
    supported by the record and whether the legal conclusions drawn
    from those facts are correct. Because the Commonwealth
    prevailed before the suppression court, we may consider only the
    evidence of the Commonwealth 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 suppression court’s factual
    findings are supported by the record, we are bound by these
    findings and may reverse only if the court’s legal conclusions are
    erroneous. Where . . . the appeal of the determination of the
    suppression court turns on allegations of legal error, the
    suppression court’s legal conclusions are not binding on an
    appellate court, whose duty it is to determine if the suppression
    court properly applied the law to the facts. Thus, the conclusions
    of law of the courts below are subject to our plenary review.
    Commonwealth v. Yim, 
    195 A.3d 922
    , 926 (Pa. Super. 2018) (internal
    citations and brackets omitted). Our scope of review from a suppression ruling
    is limited to the evidentiary record created at the suppression hearing.
    Commonwealth v. Fulton, 
    179 A.3d 475
    , 487 (Pa. 2018).                 For ease of
    discussion, we will start with the issues that Appellant presents on appeal that
    were duly preserved.
    The first issue Appellant presents to this Court is that the sheriff deputies
    unconstitutionally entered his home, challenging whether the deputies had
    consent to enter his home and whether the deputies had probable cause that
    Appellant’s father would be located in Appellant’s home.
    -5-
    J-A30034-19
    The Fourth Amendment requires that, even when seeking to
    execute an arrest warrant, a law enforcement entry into a home
    must be authorized by a warrant reflecting a magisterial
    determination of probable cause to search that home, whether by
    a separate search warrant or contained within the arrest warrant
    itself. Absent such a warrant, an entry into a residence is excused
    only by a recognized exception to the search warrant requirement.
    Commonwealth v. Romero, 
    183 A.3d 364
    , 405–06 (Pa. 2018).                     One
    exception to the warrant requirement is a search conducted pursuant to
    consent. Commonwealth v. Kurtz, 
    172 A.3d 1153
    , 1159 (Pa. Super. 2017)
    (internal citation and quotation marks omitted).
    Absent a valid, implied consent, we have required suppression
    courts to evaluate a defendant’s actual consent based on the
    totality of all the circumstances. . . . In determining the validity
    of a given consent, the Commonwealth bears the burden of
    establishing that a consent is the product of an essentially free
    and unconstrained choice—not the result of duress or coercion,
    express or implied, or a will overborne—under the totality of the
    circumstances. The standard for measuring the scope of a
    person’s consent is based on an objective evaluation of what a
    reasonable person would have understood by the exchange
    between the officer and the person who gave the consent. Such
    evaluation includes an objective examination of the maturity,
    sophistication and mental or emotional state of the defendant.
    Gauging the scope of a defendant’s consent is an inherent and
    necessary part of the process of determining, on the totality of the
    circumstances presented, whether the consent is objectively valid,
    or instead the product of coercion, deceit, or misrepresentation.
    
    Id. at 1159-60.
    It is within the exclusive province of the suppression court
    to, “pass on the credibility of witnesses and determine the weight to be given
    to their testimony.” Commonwealth v. Fudge, 
    213 A.3d 321
    , 326–27 (Pa.
    Super. 2019) (internal citation omitted).      “This Court will not disturb a
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    J-A30034-19
    suppression court’s credibility determination absent a clear and manifest
    error.” 
    Id. At the
    motion to suppress hearing, Deputy Thorn testified as follows.
    On [March 15, 2018] he “attempted to serve” a “bench warrant for failure to
    appear for Fernando Rodriguez,” Appellant’s father, at the residence in
    question. N.T. 7/9/18 at 4-5. At “approximately 9:20 in the morning” Deputy
    Thorn “went to the front door [of the residence], with Agent Snyder.” 
    Id. at 6.
    Deputy Thorn was “wearing a black deputy uniform with a vest that says
    sheriff on the front,” and had a “taser” and a “firearm” on his utility belt. 
    Id. Deputy Thorn
    testified that his weapon was not drawn. 
    Id. at 7.
    He testified
    that he knocked on the door, that Appellant “answered the door” and “opened
    up,” that he “explained to [Appellant] what I was doing there, asked him if he
    knew the defendant, Fernando Rodriguez.” 
    Id. Deputy Thorn
    testified that
    after Appellant told him that Fernando Rodriguez had been “kicked out of the
    house within the last two weeks, I asked him if we could come in and take a
    look around just to make sure that [Fernando Rodriguez] wasn’t there, and
    he stated that was fine, he invited me and Agent Snyder in the house.” 
    Id. at 7-8.
    Deputy Thorn elaborated that Appellant “said come on in,” “that’s
    fine.” 
    Id. Appellant also
    testified at the motion to suppress hearing. He stated
    that he did not give the sheriffs permission to enter his residence.        N.T.
    7/9/2018 at 60.      Appellant testified he told the sheriffs that Fernando
    -7-
    J-A30034-19
    Rodriguez “didn’t live there.” 
    Id. at 61.
    Appellant testified that the sheriffs
    stated “we still got to search the residence.” 
    Id. Appellant testified
    he stated
    “where’s your proof to come in my house,” and “where’s the paperwork for
    you to come in my house.” 
    Id. Appellant testified
    “he just rushed in,” “[h]e
    just walked in my house,” and “I was standing in front of the door.” 
    Id. The trial
    court made a credibility determination based upon hearing the
    testimony of Deputy Thorn and Appellant and determined that Appellant did
    give consent to Deputy Thorn to enter his home.           Findings of Facts and
    Conclusions of Law, 8/23/18 at 2. We find no clear and manifest error in its
    credibility determination. 
    Fudge, 213 A.3d at 326
    –27. Because the trial court
    found that Appellant gave a free and voluntary consent to Deputy Thorn for
    the sheriffs to enter his home, and this finding is supported by the suppression
    hearing testimony, the consent exception to the warrant requirement was
    satisfied and the Commonwealth need not demonstrate the probable cause
    upon which the arrest warrant was issued. 
    Kurtz, 172 A.3d at 1159
    . Lastly,
    as Appellant did not present a coercion argument to the trial court, he is
    precluded from bringing this issue for the first time on appeal.5 We find no
    ____________________________________________
    5 Appellant raised the issue that his consent was coerced in his brief to this
    Court. However, at no point did Appellant raise this issue before the trial
    court. The only argument made before the trial court was that Appellant did
    not give consent for the sheriffs to enter his home. The first time Appellant
    argued that the consent given was coerced was in his brief to this Court.
    Appellant’s Brief at 29. Failure to raise the issue before the trial court results
    in waiver. See Commonwealth v. Napold, 
    170 A.3d 1165
    , 1168 (Pa. Super.
    -8-
    J-A30034-19
    error in the denial of Appellant’s suppression motion on this ground. 
    Yim, 195 A.3d at 926
    .
    Next, Appellant states that the trial court erred when it denied his
    motion to suppress because he was subjected to custodial interrogation by
    the sheriff deputies without being provided Miranda warnings.
    “Interrogation is defined as police conduct calculated to, expected to, or
    likely to evoke admission.” Commonwealth v. Umstead, 
    916 A.2d 1146
    ,
    1152 (Pa. Super. 2007) (internal citation omitted).
    Custodial interrogation is questioning initiated by law enforcement
    officers after a person has been taken into custody or otherwise
    deprived of his freedom of action in any significant way.
    [However,] volunteered or spontaneous utterances by an
    individual are admissible without the administration of Miranda
    warnings. When a defendant gives a statement without police
    interrogation, we consider the statement to be volunteered and
    not subject to suppression. . . . [A] statement made in a custodial
    setting would not be suppressed where the suspect spontaneously
    blurts out the statement.
    Commonwealth v. Garvin, 
    50 A.3d 694
    , 698 (Pa. Super. 2012) (internal
    citations and quotation marks omitted).
    A review of the motion to suppress transcripts reveals the following
    testimony by Deputy Lehman elicited on direct examination:
    ____________________________________________
    2017) (“issues not raised in the lower court are waived and cannot be raised
    for the first time on appeal”); see also Pa.R.A.P. 302(a); Commonwealth v.
    Douglass, 
    701 A.2d 1376
    , 1378 (Pa. Super. 1997) (internal citation omitted)
    (“the failure to raise a suppression issue prior to trial precludes its litigation
    ... on appeal.”). Accordingly, this issue is waived.
    -9-
    J-A30034-19
    Counsel: And so there were 3 to 4 deputies there and 4 civilians;
    is that correct?
    Deputy Lehman: Yes. There were four civilians, yes.
    Counsel: And do you recall how long you waited for the Reading
    Police Department to arrive?
    Deputy Lehman: I was a little bit – it was several minutes; at
    least 20 minutes I would say. They were probably busy that
    morning.
    Counsel: And while you were waiting were you or other deputies
    conversing with the civilians?
    Deputy Lehman: Yes.
    Counsel: And what was said?
    Deputy Lehman: We were making small talk. I was talking to
    [Appellant], . . . , and I was also talking to Luis [Morales]. . . We
    were just having conversations. I was talking. Luis [Morales] was
    explaining how we were nice guys up here in Reading. The police
    were nice up here. And he was explaining some of the encounters
    he had with the police down where he lived. So we were just
    joking back and forth a little bit about that. He thought we were
    pretty cool guys up here. He told me that – well, I asked him, I
    said, does he like firearms. Did you ever shoot firearms. He said,
    yes, all the time I shoot because my brother is in the military. I
    think the Navy. They go shooting all the time. So we were having
    chitchat back and forth like that.
    Counsel: And towards the end of the conversation did either
    defendant make any incriminating statements about firearms in
    the house or what would be found?
    Deputy Lehman: Yes. At one point [Appellant] told me, he said
    just pin these on me. He said all these guns are mine. ‘Cause I
    asked him if they belong to anyone. He said just pin them on me.
    I’m the man of the house. I’ll take the rap for it. He said I’m not
    waiving Rule 600. I’m not going straight to court. He was making
    statements like that.
    ...
    Counsel: But immediately before he said just pin this all on me
    had you asked [Appellant] any questions?
    Deputy Lehman: No. He just blurted that out. I was actually
    talking to Luis [Morales] at the time.
    Note of Testimony, 7/9/2018 at 27-29.
    The trial court issued the following findings of facts pertaining to this
    issue:
    - 10 -
    J-A30034-19
    Deputy Lehman observed that 3 to 4 uniformed deputy sheriffs
    were present on scene and there were people seated in the front
    living room. Nobody was in handcuffs and no guns were drawn.
    As Deputy Lehman was talking with Mr. Morales, Mr. Rodriguez
    [Appellant] stated that the guns were his; he is the man of the
    house and to “pin” the guns on him. This statement was not made
    in response to any conversation. Deputy Lehman responded to
    [Appellant] and told him that he didn’t want to “pin” the guns on
    anyone and just wanted to know who they belonged to.
    Findings of Fact and Conclusions of Law, 8/23/18 at 3-4.       The trial court
    concluded that Appellant’s statements were volunteered and as such, even
    assuming the occupants were in custody for purposes of Miranda, the
    statements are admissible under Pennsylvania law. 
    Id. at 11.
    Because the trial court found that Appellant was not being questioned
    and that Deputy Lehman was talking to another person at the time Appellant
    made the statement, the statement was not made in custodial interrogation.
    
    Garvin, 50 A.3d at 698
    . Additionally, even if Appellant was determined to be
    in custody, his statement is admissible because he spontaneously blurted it.
    
    Id. We find
    that the trial court’s factual findings are supported by the record
    and discern no error of law in the denial of Appellant’s suppression motion on
    this ground. 
    Yim, 195 A.3d at 926
    .
    We now turn to Appellant’s remaining issues. “Any issues not raised in
    a 1925(b) statement will be deemed waived.” Commonwealth v. Lord, 
    719 A.2d 306
    , 309 (Pa. 1998).      On appeal, Appellant argues that the sheriff
    deputies exceeded their authority to enter the residence when they began
    inquiring into the ownership of the firearms, and that the waiver of his
    - 11 -
    J-A30034-19
    Miranda rights to Reading Police was not voluntary. However, Appellant did
    not preserve these issues in his Pa.R.A.P. 1925(b) statement of errors
    complained of on appeal, therefore, these issues are waived. See Lord, 
    719 A.2d 309
    .
    Furthermore, “[i]ssues not raised in the lower court are waived and
    cannot be raised for the first time on appeal.” See 
    Napold, 170 A.3d at 1168
    ;
    see also Pa.R.A.P. 302(a). It is well-settled that “appellate review of an order
    denying suppression is limited to examination of the precise basis under which
    suppression initially was sought; no new theories of relief may be considered
    on appeal.” Commonwealth v. Little, 
    903 A.2d 1269
    , 1272–73 (Pa. Super.
    2006) (internal citation omitted). Thus, “the failure to raise a suppression
    issue prior to trial precludes its litigation ... on appeal.” 
    Douglass, 701 A.2d at 1378
    . Additionally, we note, “this failure is not cured by submitting the
    challenge in a Rule 1925(b) statement.” Commonwealth v. Sauers, 
    159 A.3d 1
    , 10–11 (Pa. Super. 2017).
    Appellant argues that the sheriff deputies exceeded their authority to
    enter the residence by waiting for the Reading Police Department to arrive,
    that Reading Police unlawfully entered the residence, and that the firearms
    found in his home did not meet the plain view exception. However, Appellant
    did not present these issues in his motion to suppress. See Omnibus Pre-Trial
    Motion, 6/15/18. Appellant’s Omnibus Pre-Trial Motion states, as the grounds
    for suppression, “law enforcement did not have the authority to enter the
    - 12 -
    J-A30034-19
    residence . . . merely to execute an arrest warrant that was not supported by
    probable cause, the seizure of the items from [Appellant’s] residence is
    unlawful,” and “[l]aw enforcement did not provide [Appellant] with his
    Miranda warnings prior to interrogating him relative to the items seized from
    his residence . . . he did not knowingly and voluntarily waive his rights to
    remain silent in regards to the statements made to police.” 
    Id. at ¶¶
    17-26.
    Indeed, at the motion to suppress hearing, counsel for Appellant states, “there
    are two issues presented to the [c]ourt . . . the argument for the Miranda
    statements are limited to that interaction with the Sheriff’s Department . . .
    the primary issue here is whether or not there was the ability for law
    enforcement [sheriff deputies] to enter the residence when they did.” N.T.
    7/9/18 at 64. Based on the fact that Appellant did not raise the issues that
    the sheriff deputies exceeded their authority to enter the residence by waiting
    for the Reading Police Department to arrive, that Reading Police unlawfully
    entered the residence, and that the firearms found in his home did not meet
    the plain view exception, in his motion to suppress before the trial court, we
    find that these issues are waived on appeal. See 
    Napold, 170 A.3d at 1168
    ;
    see also Pa.R.A.P. 302(a); 
    Little, 903 A.2d at 1272-73
    ; 
    Douglass, 701 A.2d at 1378
    .
    Based on the foregoing, Appellant is not entitled to relief. Judgment of
    sentence affirmed.
    - 13 -
    J-A30034-19
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/26/2020
    - 14 -
    

Document Info

Docket Number: 407 MDA 2019

Filed Date: 2/26/2020

Precedential Status: Precedential

Modified Date: 2/26/2020