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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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