Com. v. Rodriguez, R.

J-S79001-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RAFAEL RODRIGUEZ,
Appellant No. 1184 EDA 2012
Appeal from the Judgment of Sentence entered April 16, 2012,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0009958-2010
BEFORE: ALLEN, OLSON, and STRASSBURGER*, JJ.
MEMORANDUM BY ALLEN, J.: FILED DECEMBER 16, 2014
Rafael Rodriguez (“Appellant”) appeals pro se1 from the judgment of
sentence imposed after a jury convicted him of first-degree murder,
conspiracy to commit murder, possessing an instrument of crime, and a
violation of the Uniform Firearms Act. We affirm.
Appellant presents a single issue for our review2:
____________________________________________
1
Upon remand from this Court, on October 18, 2013, the trial court
conducted a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81(Pa. 1998), after which it determined that Appellant’s request to proceed pro
se was knowing, intelligent and voluntary.
2
Although the trial court issued an opinion, it did not require compliance
with Pa.R.A.P. 1925 and Appellant did not file a Pa.R.A.P. 1925(b) concise
statement.
*Retired Senior Judge assigned to the Superior Court.
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I. WHETHER THE LOWER COURT ERRED AS A MATTER OF
LAW/OR ABUSED ITS DISCRETION IN DENYING
APPELLANT’S MOTION TO SUPPRESS STATEMENTS, AS
THE STATEMENTS WERE THE FRUIT OF AN UNLAWFUL
SEIZURE AND, SEPARATELY, SAID STATEMENTS WERE
OBTAINED IN VIOLATION OF MIRANDA V. ARIZONA, 384
U.S. 436 (1966)?
Appellant’s Brief at 4.
Our scope and standard of review is well settled:
An appellate court's 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. [Because] the prosecution prevailed in
the suppression court, we 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 factual findings of
the trial court, we are bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error.
Commonwealth v. Reese, 31 A.3d 708, 721 (Pa. Super. 2011) (citations
omitted). “It is within the suppression court's sole province as factfinder to
pass on the credibility of witnesses and the weight to be given to their
testimony. The suppression court is free to believe all, some or none of the
evidence presented at the suppression hearing.” Commonwealth v.
Elmobdy, 823 A.2d 180, 183 (Pa. Super. 2003) (citations omitted). “We
are bound by the suppression court's factual findings, if supported by the
record; however, the question presented—whether a seizure occurred—is a
pure question of law subject to plenary review.” Commonwealth v. Lyles,
97 A.3d 298, 302 (Pa. 2014).
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The trial court observed that it conducted “a lengthy suppression
hearing concerning Appellant’s statement [].” Trial Court Opinion, 6/20/13,
at 5. Our review of the notes of testimony from the suppression hearing
reveal the following: Philadelphia Narcotics Sergeant Jeffrey Seaman
testified to the circumstances leading to Appellant’s arrival at the Homicide
Unit for questioning regarding the murder of the victim, Julio Augustine.
Sergeant Seaman testified that he was executing a search warrant on a
property where Appellant was located. N.T., 4/11/12, at 4-5. Sergeant
Seaman stated:
After we concluded our narcotics investigation, I told [Appellant]
that homicide investigators were interested in speaking with him
concerning a homicide and I asked him if he would be willing to
go down to Homicide and talk to the investigators.
Id. at 5. Sergeant Seaman testified that Appellant’s freedom was not
restricted “in any way” and, “At that time we were outside the property. We
had served another search warrant across the street. And we had a couple
of people that Homicide was interested in talking with and I asked them if
they wanted to go down and they said yes. I drove them down.” Id. at 6.
Philadelphia Homicide Detective Timothy Scally testified to
investigating the murder of Julio Augustine. Detective Scally stated that he
interviewed Santa Rosario, who, at the time and near the scene of the
murder, heard “several gunshots” and “saw [Appellant] soon after that.”
N.T., 4/10/12, at 56. Ms. Rosario “drew a picture of the male she saw come
off the street and she wanted to give that to [detectives] and tell [the
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detectives] what she saw.” Id. Ms. Rosario also identified Appellant from a
photo array. Id. at 59. Detective Scally advised “officers in the
neighborhood, if they saw [Appellant], [Detective Scally] would like to talk
to him.” Id. at 60. Detective Scally’s supervisor, Sergeant McClain,
subsequently contacted Detective Scally at home to tell him Appellant was at
the Homicide Unit, and gave Detective Scally and Detective Nordo
“permission to come in early the next day at 6 a.m.” to talk with Appellant.
Id. at 63, 69, 76. Detective Scally testified that he wanted to speak with
Appellant because he “was on the block at the time when the shooting
occurred.” Id. at 64. When Detective Scally arrived at the Homicide Unit,
he met with Appellant in an interview room and advised Appellant that he
wanted to discuss “a shooting in the neighborhood.” Id. at 63-64.
Detective Scally testified that he gave Appellant Miranda warnings because:
He denied knowing of any shooting or anybody being murdered.
At that point I knew that had to be a lie, and myself and
Detective Nordo, we verbally gave him his warnings at that
point.
Id. at 65. Detective Scally testified “at this point” he “ruled [Appellant] out
as an eyewitness of sorts.” Id. Detective Scally then “went back to [the
neighborhood] to prove [Appellant] wrong. … [Detective Scally] conducted
another interview or talked to some other people about what was going on.
Then another witness came in who was eventually interviewed who backed
up what [the] original witness [Ms. Rosario] said about [Appellant].” Id. at
66.
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On cross-examination, Detective Scally confirmed that Appellant “was
originally brought in as a witness.” Id. at 72-73. Detective Scally stated:
I – just like I said, I introduced myself. I tell [Appellant] why he
is here. And at that point he denies to me knowing anybody
being shot, doesn’t know who [the victim] is, doesn’t know
anything, and that’s when we read him his rights.
***
All I asked him was did he know about a shooting and did he
know [the victim]. And he denied both.
Id. at 77, 78-79. Detective Scally then left to further investigate. Id. at 79.
He returned several hours later to interview Appellant, and during that
second encounter, Appellant gave his statement. Id. at 81-82.
Philadelphia Homicide Detective Phillip Nordo corroborated Detective
Scally’s testimony that the detectives were not working when Appellant was
first brought to the police station, but arrived early for their shift at 6:00
a.m. because Appellant “came in” to the Homicide Unit. Id. at 87-88.
Detective Nordo stated:
When we came in, we introduced ourselves. Basically, told
him exactly why he is here. Told him what we’re investigating.
Just introductory, that’s basically it, really. Asked him if he
knows anything about what happened, did you hear about the
crime, stuff like that. … His response was, I don’t know a thing.
I wasn’t around during that time period and I know nothing
about any such murder.
Id. at 88-89. Detective Nordo testified that after Appellant denied
knowledge of the murder, he was Mirandized, and Detective Nordo had no
further contact with Appellant until later that afternoon. Id. at 89, 92.
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Detective Nordo explained that the detectives “were finding and interviewing
other witnesses involved in this case. So we were talking to other potential
witnesses.” Id. at 90. After being read his rights, Appellant signed and
dated the notice of his Miranda rights. Id. at 92-94, 123.
On cross-examination, Detective Nordo testified:
Once we got the “no” to everything about the, No, I wasn’t on
the block, no, I don’t know who [the victim] is, no, I don’t know
what murder you’re speaking of, I think it was safe to say that at
that point, that’s when we said to [Appellant], you have a right
to remain silent.
Id. at 113. Detective Nordo stated that after reading Appellant his Miranda
warnings, he had “no further conversation” with Appellant “because
[Appellant] didn’t have anything further to say.” Id. at 114, 116-117. It
was not until Detective Nordo returned several hours later that day and had
“further contact later on that afternoon” that he again Mirandized Appellant
and took his written statement. Id. at 89-92; Commonwealth Exhibit C-M3.
Appellant offered testimony that was contrary to the testimony
presented by the Commonwealth. Appellant testified that during the
narcotics search, he was “placed in handcuffs” and then “placed in an
unmarked car” and told he was “going down to the district.” Id. at 15.
Appellant maintained throughout his testimony that while at the Homicide
Unit, he was not feeling well and was suffering side effects from diabetes.
See, e.g., id. at 23 (“I just kept telling everyone that I was diabetic.”).
Appellant stated that Detective Nordo came to speak to him and told him he
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was looking for two individuals and asked Appellant whether he wanted to
help. Id. at 20-21. Appellant said that he told Detective Nordo that he
knew the individuals from the area but “didn’t know anything of them.” Id.
at 21. Appellant testified that Detective Nordo did not advise him of his
Miranda rights, but delivered him “back in the holding cell.” Id. at 22.
Specifically, the following exchange occurred between Appellant and his
counsel:
COUNSEL: At that point in time did he advise you of any
rights?
APPELLANT: No.
COUNSEL: Did he tell you you had a right to an attorney,
you didn’t have to speak?
APPELLANT: No.
COUNSEL: Anything that you said could be used against
you?
APPELLANT: No.
COUNSEL: Did he take out a card or anything and read
from it to you?
APPELLANT: No, sir.
COUNSEL: Fair to say after that he left the room?
APPELLANT: No. He placed me back in the holding cell.
Id. at 22.
Appellant testified that Detective Nordo subsequently returned and
“starts questioning me about the same thing; that he wanted to know about
two individuals.” Id. at 25. Appellant did not “recall any paperwork at all.”
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Id. Appellant asserted he was not feeling well, and did not remember
signing anything. Id. at 26-27. When asked about the signature of his
name on the Miranda form, Appellant denied signing it. Id. at 27.
On cross-examination, Appellant maintained that he was handcuffed
and transported to the police station. Id. at 36. He testified that the police
asked him about two individuals named James and Lito and what Appellant
knew about them. Id. at 42-44. Appellant described “those words” in his
signed statement presented by the Commonwealth as Exhibit C-M3 as
“completely false.” Id. at 47. Appellant continued to maintain that he had
been in a state of diabetic weakness. See, e.g., id. at 39 (“I told them I
was diabetic; I need to see a nurse.”).
At the conclusion of the above testimony, the trial court made findings
which included the following:
[Appellant] denied being at the scene or knowing the decedent
or having any information about the killing. At that time the
detectives had no reason to believe that [Appellant] had any
involvement in the crime or was anything more than a witness to
the crime; however, as the statement was inconsistent with Ms.
Rosario’s statement, the detectives read [Appellant] his Miranda
warnings. No further questioning occurred at that time, nor did
[Appellant] indicate that he wished to see an attorney or wished
to remain silent.
[] [Appellant] was kept in Homicide.
As the officers conducted further interviews in the morning and
early afternoon, [Appellant] was not interviewed, nor did he
advise anyone that he was in any medical distress.
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[T]he results of those interviews were consistent with the
statement of Ms. Rosario and inconsistent with the denials of
[Appellant].
The detectives returned to the Homicide Unit at approximately
3:30 p.m. Detective Nordo and [his partner] then read
[Appellant] his Miranda rights. [Appellant] indicated that he
wished to waive his rights and gave a statement.
The Commonwealth’s exhibit … is a true and correct copy of
[Appellant’s] statement.
At no time prior to giving the statement did [Appellant] advise
the police that he was diabetic or was in any medical distress
from his condition.
***
[Appellant] testified at the motion to suppress. His
testimony, as found by this Court, was wholly unworthy of
belief.
N.T., 4/11/12, at 203-209 (emphasis added).
On appeal, Appellant challenges the admission of his statements to
Philadelphia Police Detective Phillip Nordo. Appellant first argues that he
was “unlawfully seized” and “subjected to an investigatory detention which
was not supported by reasonable suspicion or probable cause.” Appellant’s
Brief at 11. Appellant additionally argues that he was subjected to
continued police interrogation “even after responding to his Miranda
warnings by stating he had ‘nothing to say.’” Id.
Given that the trial court’s factual findings are supported by the
record, Reese, supra, and the trial court found Appellant’s testimony
“wholly unworthy of belief”, we find no merit to Appellant’s claim that his
statement was “the fruit of an unlawful seizure” and in violation of his
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Miranda rights. Appellant’s appellate argument essentially challenges the
trial court’s factual findings and credibility determinations. For instance,
Appellant claims “there was an absence of either reasonable suspicion or
probable cause, making his initial seizure and later investigatory detention
unreasonable.” Appellant’s Brief at 9. However, the trial court found the
testimony presented by the Commonwealth to be credible. Sergeant
Seaman testified that Appellant’s freedom was not restricted “in any way”
and that Appellant agreed to go to the police station for questioning. N.T.,
4/11/12, at 6. Sergeant Seaman testified, “[W]e had a couple of people
that Homicide was interested in talking with and I asked them if they wanted
to go down and they said yes. I drove them down.” Id. Sergeant
Seaman’s testimony indicates that Appellant was not “seized.”
Further, when Detective Scally initially spoke with Appellant, Detective
Scally wanted to speak with Appellant because Appellant “was on the block
at the time when the shooting occurred.” N.T., 4/10/12, at 64;
Commonwealth v. Garvin, 50 A.3d 694, 698 (Pa. Super. 2012) (not every
statement made by an individual during a police encounter constitutes an
interrogation). It is well settled that Miranda is not implicated unless an
individual is in custody and subject to interrogation. See Commonwealth
v. Umstead, 916 A.2d 1146, 1149-52 (emphasis added). Even if Appellant
was in custody, once Appellant denied knowledge of the shooting, and
Detective Scally perceived Appellant was lying, Detective Scally gave
Appellant Miranda warnings. N.T., 4/10/12, at 65. Detective Scally
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Mirandized Appellant “at that point” because he realized that any further
conversation with Appellant could evoke an admission. Id.; Garvin, 50
A.3d at 698 (“Interrogation is police conduct calculated to, expected to, or
likely to evoke admission.”). In Umstead, 916 A.2d at 1152, this Court
expressly rejected appellant’s assertion that Miranda warnings are
necessary in every instance where an individual who is in police custody is
questioned by a law enforcement officer “regarding a crime.” We
determined in Umstead that Miranda warnings were not required because
the appellant “was simply asked if he witnessed the assault.” Id. Similarly,
in the instant case, Detective Scally “simply” advised Appellant that he
wanted to talk with him about the shooting. N.T., 4/10/12, at 64.
Appellant additionally argues that his inculpatory statement in the
afternoon, “even though given after Miranda warnings, should have been
suppressed because it was tainted by the initial illegality of his seizure and
derivative detention.” Appellant’s Brief at 9. Appellant asserts that he gave
his statement only after being subjected to “continuing police interrogation
until he agreed to waive his Miranda rights and provide a statement.” Id. at
10. Again, Appellant’s version of events is contrary to the factual findings of
the trial court, which are supported by the record. The evidence presented
by the Commonwealth was that Appellant was not illegally seized or
detained because he agreed to go to the police station to talk with homicide
detectives, and although ultimately he was subjected to a custodial
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interrogation, Appellant gave his statement only after he was read and
waived his Miranda rights.
The testimony presented by the Commonwealth was that Appellant,
when first questioned by Detective Scally, denied any knowledge of the
murder in the neighborhood, which led Detective Scally to believe that
Appellant was lying and prompted Detective Scally to give Appellant verbal
Miranda warnings. N.T., 4/10/12, at 65, 89. Both Detective Scally and
Detective Nordo testified that when they returned several hours later to
question Appellant, they again advised him of his Miranda rights, and
Appellant executed a written waiver. Id. at 91-93. Detective Nordo
expressly testified that he read Appellant his rights. Id. at 92-94. With
regard to Appellant’s statement, Detective Nordo testified that he was
“questioning and typing; whatever [Appellant’s] answer was, I would type it
down.” Id. at 96. Detective Nordo testified that Appellant reviewed the
statement. Id. at 108-109. The trial court accepted this testimony and we
are bound by it. Commonwealth v. Sepulveda, 855 A.2d 783, 789 (Pa.
2004).
Although there was a delay of several hours from when the homicide
detectives first encountered Appellant, and when they questioned him about
the murder, Appellant in both instances received Miranda warnings, first
verbally and later both verbally and in writing. The trial court determined
that under the totality of the circumstances presented by the
Commonwealth, Appellant’s statement was voluntary. Sepulveda, supra,
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at 793 (statement voluntarily given six hours after appellant’s arrest but
before his arraignment where the appellant was informed of his
constitutional rights before he spoke with officers, and nothing in the record
indicated that delay was “aimed at overcoming Appellant’s will, or that the
police utilized any coercive tactics to persuade him to give a statement”).
See also Commonwealth v. Page, 59 A.3d 1118, 1132-33 (Pa. Super.
2013) (appellant knowingly and intelligently waived his Miranda rights when
he signed a form and orally acknowledged that he understood his rights; the
determination of whether an accused has knowingly and voluntarily waived
his constitutional rights depends on the facts of each particular case).
Here, the record supports the trial court’s conclusion that Appellant’s
statement “was knowingly, intelligently and voluntarily given after being
given and waiving his Miranda rights.” N.T., 4/11/12, at 209. Upon review,
we discern no error in this conclusion. Accordingly, we affirm the judgment
of sentence.
Judgment of sentence affirmed.
Judge Strassburger joins the memorandum.
Judge Olson concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2014
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