J-A14024-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

JUAN MIGUEL SERRANO-TORRES,

                        Appellant                 No. 1586 MDA 2013


         Appeal from the Judgment of Sentence of August 7, 2013
            In the Court of Common Pleas of Dauphin County
           Criminal Division at No(s): CP-22-CR-0002943-2012

BEFORE: FORD ELLIOTT, P.J.E., OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                            FILED JULY 30, 2014

     Appellant, Juan Miguel Serrano-Torres, appeals from the judgment of

sentence entered on August 7, 2013. We affirm.

     The factual and procedural history of this case is as follows. On April



courtyard.   A vehicle occupied by the victim and another individual soon

pulled up near the courtyard. The victim and Figueroa then engaged in a

drug transaction. While the victim was walking away, Appellant shot him in



therefrom.

     Eventually, Figueroa was arrested for suspicion of committing the

above described crime.    During questioning by police, Figueroa implicated

several individuals who turned out to not be involved. Eventually, Figueroa



* Retired Senior Judge Assigned to the Superior Court.
J-A14024-14

implicated Appellant as the triggerman. Appellant was arrested on April 19,

2012 at approximately 7:15 a.m.       Appellant initially invoked his right to

counsel and officers ceased their interviews; however, at approximately 6:45

p.m. that same day, he waived his right to counsel.         Police then played



                                       sed to killing the victim.

        On July 31, 2012, Appellant was charged via criminal information with

criminal homicide,1 robbery,2 criminal conspiracy,3 and carrying a firearm

without a license.4   On July 23, 2013, Appellant filed an omnibus pre-trial

motion which included a motion to suppress the statement he gave to police.

On August 5, 2013, a suppression hearing was held at the conclusion of



2013, a jury found Appellant guilty of second-degree murder,5 robbery,

criminal conspiracy, and carrying a firearm without a license. The trial court




1
    18 Pa.C.S.A. § 2501.
2
    18 Pa.C.S.A. § 3701.
3
    18 Pa.C.S.A. § 903.
4
    18 Pa.C.S.A. § 6106.
5
    18 Pa.C.S.A. § 2502(b).




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sentenced Appellant to an aggregate term of life imprisonment without the

possibility of parole. This timely appeal followed.6

      Appellant raises two issues for our review:

      1.                                                              -]
           trial motion to suppress his statements?

      2. Whether the evidence presented was insufficient as a matter
         of law to enable t[he] jury to convict Appellant of the charges
         in the above captioned case?



      In his first issue, Appellant contends that the trial court erred by

denying his motion to suppress his statement given to police.      He argues



confession rendered his subsequent waiver of Miranda rights invalid and his

                                      Brief at 17.



motion, we are limited to determining whether the factual findings are

supported by the record and whether the legal conclusions drawn from those

                       Commonwealth v. Scarborough, 89 A.3d 679, 683




6
   On September 5, 2013, the trial court ordered Appellant to file a concise
                                                                        See
Pa.R.A.P. 1925(b). On September 10, 2013, Appellant filed his concise
statement. On November 4, 2013, the trial court issued its Rule 1925(a)

statement.




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(Pa. Super. 2014) (citation omitted).7

                                                               In re L.J., 79

                                                            consider only the




Commonwealth v. Gary, 91 A.3d 102, 106 (Pa. 2014) (citation omitted).

      Under Miranda v. Arizona, 384 U.S. 436 (1966), a suspect has a

right to have an attorney present during custodial interrogation. Prior to any

custodial interrogation, the police must inform a suspect of his rights under

Miranda, including the right to have an attorney pres

asserts his Fifth Amendment right to counsel, not only must the current

interrogation cease, but he may not be approached for further interrogation

until counsel has been made available to him, unless he himself initiates

further co                           Commonwealth v. Keaton, 45 A.3d

1050, 1067 (Pa. 2012) (citation omitted).


7
  We remind the trial court of the mandatory nature of Pennsylvania Rule of
Criminal Procedure 581(I), which provides that:

      At the conclusion of the [suppression] hearing, the judge shall
      enter on the record a statement of findings of fact and
      conclusions of law as to whether the evidence was obtained in

      or any statute, and shall make an order granting or denying the
      relief sought.

Pa.R.Crim.P. 581(I). A simple statement that the motion to suppress is
denied is not sufficient to satisfy the Rule 581(I) requirement.



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      If a suspect re-initiates a conversation with police and subsequently

waives his right to counsel, we then examine whether that waiver was

knowing and voluntary. As we have explained:

                                                             Miranda
      rights is valid, a trial court must consider: (1) whether the
      waiver was voluntary, in the sense that the waiver was not the
      result of governmental pressure; and (2) whether the waiver
      was knowing and intelligent, in the sense that it was made with
      full comprehension of both the nature of the right being
      abandoned and the consequence of that choice.              The
      Commonwealth bears the burden of establishing that a
      defendant knowingly and voluntarily waived his Miranda rights.

Commonwealth v. Patterson, 91 A.3d 55, 76 (Pa. 2014) (internal

citations omitted).

      Our Supreme Court

      has set forth the following numerous factors that should be
      considered under a totality of the circumstances test to
      determine whether a statement was freely and voluntarily made:
      the duration and means of interrogation, including whether
      questioning was repeated, prolonged, or accompanied by

      detention prior to the confession; whether the accused was
      advised of his or her constitutional rights; the attitude exhibited

      psychological state, including whether he or she was injured, ill,
      drugged, or intoxicated; the conditions attendant to the
      detention, including whether the accused was deprived of food,
      drink, sleep, or medical attention; the age, education, and
      intelligence of the accused; the experience of the accused with
      law enforcement and the criminal justice system; and any other

      suggestion and coercion.

Commonwealth v. Bryant, 67 A.3d 716, 724 (Pa. 2013) (citation omitted).




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      Appellant does not argue that police re-initiated the conversation with

him. Instead, he argues that the time that elapsed between his arrest and

his confession was unreasonably long.       Appellant contends that he should

have been brought before a judicial officer for arraignment in a more

expedient manner. He implicitly contends that if he were arraigned promptly

he would not have confessed to the murder. Appellant also alleges that he

was ingesting illegal narcotics while in custody and that he had not slept the

night before. Thus, he argues that the totality of the circumstances show he

did not voluntarily waive his Miranda rights.

      We will evaluate the Bryant factors seriatim. As to the duration and

means of interrogation, the total duration of the interrogation prior to

Appellant waiving his Miranda rights was only a few minutes.            See N.T.

8/5/13, at 68, 97. The interrogation occurred in a large room. See id. at

26.   There is no evidence that there was physical violence, or threats

thereof.   There was also no evidence of other improper interrogation

techniques.   Thus, the first Bryant factor weighs in favor of a finding of

voluntariness.



approximately 11.5 hours prior to his confession. Between 1977 and 2004,

our   Supreme    Court   adhered   to   a   brightline   six-hour   rule.   See

Commonwealth v. Davenport, 370 A.2d 301, 306 (Pa. 1977), overruled

Commonwealth v. Perez, 845 A.2d 779, 787 (Pa. 2004). Under that rule,



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any statement given to police more than six hours after arrest, and before

arraignment, was per se inadmissible.         Davenport, 370 A.2d at 306.

However, in Perez our Supreme Court determined that the per se rule was

not appropriate and reverted to a totality of the circumstances test, which

we apply in this case. Perez, 845 A.3d at 787.

      Nonetheless, the six-hour rule still provides a good baseline from

                                                    ody. In this case, the time



almost twice that length     11.5 hours. Thus, it is obvious that this factor



the weight of this factor is not as significant as it may appear.




Appellant was the triggerman in the murder. These steps were necessary

because Figueroa had implicated several other individuals in the murder

prior to implicating Appellant.    After brief periods of investigation, police

were able to ascertain that those individuals were not involved in the

murder.    Thus, police had reason to believe that Figueroa was falsely

implicating Appellant.

      In Commonwealth v. Perez, 760 A.2d 873 (Pa. Super. 2000),

affirmed, 845 A.2d 779 (Pa. 2004), this Court recognized that a police

investigation which may exonerate a defendant may cause him to be



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J-A14024-14

detained for longer than six hours without being arraigned. Specifically, we



can reasonably relate to . . . limited preliminary investigation into [a

                  nnection with the crime for which he was arrested, especially

                                                                               Id. at 875,

quoting Adams v. United States, 399 F.2d 574, 579 (D.C. Cir. 1968)

(Burger, J. concurring).

         The   facts    in   the   case   sub    judice   are   similar   to    those   in

Commonwealth v. Seilhamer, 862 A.2d 1263 (Pa. Super. 2004).                             In

Seilhamer, approximately seven hours elapsed between the initial contact



Miranda rights.         The police had sufficient probable cause to arraign the

defendant two hours after the initial contact; however, they delayed

arraignment because they were seeking other witnesses and evidence. Id.

at 1269-1270.          Under the totality of the circumstances, including three

                               Miranda rights and a delay attributed to further

police investigation, we concluded her waiver was voluntary. Id. at 1270.



longer, the rationale employed in Seilhamer and Perez offers persuasive

force.    Thus, although we conclude that the second Bryant factor weighs

against a finding of voluntariness, the weight afforded to that factor is

somewhat diminished because of the reason for the delay.



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J-A14024-14

      As to whether Appellant was advised of his constitutional rights, the

record reflects that Appellant was advised of his Miranda rights on several

occasions. Immediately prior to his confession, he was read his rights orally

and signed a form, which outlined his rights in Spanish. N.T., 8/5/13, at 92,

97.   Thus, the third Bryant factor weighs in favor of a finding of

voluntariness.



that Appellant was not under the influence of drugs or alcohol.       See Trial

Court Opinion, 11/4/13, at 20.      This finding of fact is supported by the

record.   The police officer that was interrogating Appellant testified that

Appellant did not appear to be under the influence of alcohol or drugs. N.T.,

8/5/13, at 132. Although Appellant testified that he was under the influence

of drugs and alcohol, the trial court made a credibility determination. See

Trial Court Opinion, 11/4/13, at 20.    We may not overturn this credibility

determination with the record before us.           Furthermore, there was no

evidence that Appellant was injured or ill.      Thus, the fourth Bryant factor

weighs in favor of a finding of voluntariness.

      As to the conditions attendant to the detention, Appellant admitted

that the police offered him food and coffee during the course of his

detention. See N.T., 8/5/13, at 172. There is no evidence that the police

ever denied Appellant a request for food, drink, medical care, or use of the

restroom. Although he may not have slept the night before, Appellant was



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J-A14024-14

given a chance to sleep while in detention. Trial Court Opinion, 11/4/13, at

21.    Thus, the fifth Bryant factor weighs in favor of a finding of

voluntariness.



questioned Appellant testified that he did not have any educational problems

or low level of intelligence. N.T., 8/5/13, at 148.   Appellant was 33 years

old at the time of his waiver. Thus, the sixth Bryant factor weighs in favor

of a finding of voluntariness.



with the criminal justice system.    As such, the seventh Bryant factor is

neutral. The parties do not contend, nor do we find evidence in the record,

that there were non-enumerated factors that the trial court should have



      Although one of the seven Bryant factors weighs against a finding



that his waiver was voluntary. There is little doubt that the one factor that

weighs in favor of Appellant is significant.   However, for the reasons set

forth above, the time Appellant was in custody is mitigated because the

actions taken by the police had the possibility of exonerating Appellant.

Furthermore, one of the factors that weighs in favor of the Commonwealth,

i.e., how often and by what means Appellant was given his constitutional




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J-A14024-14

voluntary. When combined with the other four factors that weigh in favor of

the Commonwealth, we conclude that those factors outweigh the length of




       In his second issue, Appellant contends that the evidence was

insufficient   to   convict    him   of   second-degree   murder,    robbery,   and



question of law; thus, our standard of review is de novo and our scope of

                          Patterson, 91 A.3d at 66 (citation omitted).            In

revi

viewing all the evidence admitted at trial in the light most favorable to the

[Commonwealth], there is sufficient evidence to enable the fact-finder to

find   every    element       of   the    crime    be

Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa. Super. 2014) (citation



possibility of innocence . . . . [T]he fact-finder is free to believe all, part[,] or

non                            Commonwealth v. Trinidad, 90 A.3d 721, 728

(Pa. Super. 2014) (citation omitted).



is committed while defendant was engaged as a principal or an accomplice in



underlying felony was the robbery.



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J-A14024-14

course of committing a theft, he[ ] inflicts serious bodily injury upon



with another person or persons to commit a crime if with the intent of

promoting or facilitating its commission he[ ] agrees with such other person

or persons that they or one or more of them will engage in conduct which

                                        § 903(a)(1).

      Appellant argues that the Commonwealth did

intended to steal or knew Figueroa intended to steal the drugs from the



evidence was overwhelming that Appellant and Figueroa planned the robbery

well in advance. Veronica Ortiz testified that, on the day of the murder, she




Appellant admitted to several individuals that he had robbed the victim. See

id. at 103 (statement to Wanda Baez-Lugo); id. at 136 (statement to

Jacqueline Arroyo); id. at 149 (statement to Elizabeth Lopez). If the jury

believed this evidence, it could reasonably find that Appellant possessed the

requisite intent for robbery, and thus also second-degree murder and

conspiracy.   Accordingly, viewed in the light most favorable to the



     Judgment of sentence affirmed.




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J-A14024-14

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/30/2014




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