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

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 6105 (a)(1).
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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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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
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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.
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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
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4Appellant filed his statement of errors complained of on appeal on March 29,
2019. The trial court entered its opinion on May 20, 2019.
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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.
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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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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
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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
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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.
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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:
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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.
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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:
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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
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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
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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.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/2020
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