J-A24023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

OMAR MILLER

                            Appellant               No. 3285 EDA 2014


            Appeal from the Judgment of Sentence of June 23, 2014
             In the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-CR-0004797-2013


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                         FILED OCTOBER 30, 2015

       Omar Miller appeals the June 23, 2014 judgment of sentence.        We

affirm.

       On May 5, 2013, Miller, Andre Collier, Rasheed Teel, and Charles

Freeman devised a plan to rob nineteen-year-old Kareem Borowy. Freeman

drove the group to Borowy’s house in Pottstown, Pennsylvania, and waited in

the car while Miller, Teel, and Collier entered the residence.   Once inside,

Collier, armed with a .45 caliber Glock pistol, demanded that Borowy hand

over a large quantity of marijuana and $3,000.00 in cash. Borowy pleaded

with the robbers, insisting that there was no money in the home.



____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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      Sensing that the trio was growing impatient, Borowy falsely told them

that he kept his money in a “stash house” at a different location. The men

then took Borowy outside and forced him into the getaway car.         Freeman

drove away from the residence, presumably intending to travel to Borowy’s

contrived stash house. When the vehicle slowed down on a rural roadway in

Lower Pottsgrove Township, Borowy managed to escape from the vehicle.

Collier chased after Borowy and shot him twice. When he returned to the

vehicle, Collier told the others that he saw Borowy fall to the ground, and

instructed Freeman to drive away.

      Although severely injured, Borowy managed to crawl on his hands and

knees to the main roadway.        A passing motorist spotted Borowy laying

beside the road a short time later and called 911. When the police arrived,

Borowy was unresponsive. He was pronounced dead at the scene.

      Four weeks later, on June 3, 2013, a team of federal, state, and local

law enforcement officers arrested Miller on the sidewalk outside of his

uncle’s home in Philadelphia, Pennsylvania.     The officers took Miller to the

homicide unit of the Montgomery County Detectives’ Bureau.           Detective

Todd Richard brought Miller into a conference room and informed him of his

right to remain silent and his right to counsel. On July 4, 2013, at 12:49

a.m., Miller signed a written waiver of those rights.

      Over the course of the next eleven hours, Miller made four separate

on-the-record statements. Each time, Detective Richard transcribed both his




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questions and Miller’s answers.     Miller then reviewed Detective Richard’s

transcriptions, agreed that they were accurate, and signed them.

      In Miller’s first statement, which began at 1:01 a.m., he stated that he

could not recall whether he was in Pottstown on the day that Borowy was

killed. Miller categorically denied participating either in the robbery or in the

murder.    At 1:47 a.m., Detective Richard gave Miller a break to smoke a

cigarette and to use the restroom. At 2:22 a.m., Detective Richard resumed

his questioning. At that time, Miller gave a second statement to Detective

Richard, which concluded at 2:48 a.m.

      Miller gave a third statement to Detective Richard, which began at

6:35 a.m. Miller admitted that he “didn’t tell [the detectives] everything” in

his earlier statements. Notes of Testimony (“N.T.”), 1/10/2014, exh. MS-2

at 8. Miller went on to confess that, on the afternoon of Borowy’s murder,

he overheard Collier, Freeman, and Teel planning a robbery. He also stated

that Collier was carrying a weapon, which Miller described as “a big ass

black, semi-automatic with a clip sticking out.” Id. at 9. Still, Miller denied

that he had participated in either the planning or the execution of the

robbery.

      After giving his third statement, Miller asked for something to eat. The

detectives gave Miller a breakfast sandwich and apple juice.         Miller then

asked to speak with Detective Richard’s “boss.”       N.T., 1/7/2014, at 139.

Detective Richard left Miller in the conference room to finish his breakfast,




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and told his supervisor, Lieutenant James McGowan, that Miller wanted to

speak with him.

       When Lieutenant McGowan entered the conference room, he found

Miller with his head down on the table.          Lieutenant McGowan asked Miller

what he wanted to discuss, and Miller began crying. Miller told Lieutenant

McGowan that he was at the scene of the murder and that he saw Collier

shoot Borowy.       Miller then stated that he wanted to continue talking to

Detective Richard.

       Detective Richard reentered the conference room and took another

statement from Miller. In Miller’s fourth statement, which began at 11:08

a.m., Miller confessed that he was present during the robbery and the

murder. He told Detective Richard that “[Collier] killed that boy and I told

him not to.”     N.T., 1/10/2014, exh. MS-2 at 12.       Miller was charged with

homicide, kidnapping, robbery, persons not to possess a firearm, receiving

stolen property, and false imprisonment.1 The Commonwealth also charged

Miller with conspiracy to commit each of those offenses.2

       On December 31, 2013, Miller filed a motion to suppress the

inculpatory statements that he made to detectives on June 4, 2013. In his



____________________________________________


1
     18 Pa.C.S. §§ 2502, 2901(a)(3), 3701(a)(1)(i), 6105, 3925, and 2903,
respectively.
2
       18 Pa.C.S. § 903(b).



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motion, Miller asserted two bases for suppression of his statement. 3 First,

Miller argued that, “[u]nder the totality of the circumstances, [Miller’s]

inculpatory statements were not made voluntarily.”             See Miller’s Motion to

Suppress, 12/31/2013, at 2 (unnumbered).             Second, Miller asserted that,

“[d]uring the course of questioning, Miller made a request for counsel, even

naming     such    counsel,     but   detectives   did   not   then   terminate   the

interrogation.” Id.

       The trial court held a three-day hearing on Miller’s motion to suppress,

which commenced on January 7, 2014. At the beginning of that hearing, the

trial court asked Miller’s attorney to state on the record the basis for his

suppression motion. He responded as follows:

       [W]e have an issue about my client’s statement. My client was
       arrested at about midnight, say 12:01 a.m., on June 4 th. The
       inculpatory statement came on the fourth or fifth attempt of the
       officers to question him, and it was ultimately given at 11:30,
       almost—in the morning—12 hours later.

       My primary issue is the right to counsel, as opposed to the
       totality of the circumstances, although I will touch upon them.
       But my primary issue is the violation of his right to counsel
       during that process.

N.T., 1/7/2014, at 20-21.

       The Commonwealth presented testimony from Detective Richard and

Lieutenant McGowan at the hearing. That testimony directly addressed the
____________________________________________


3
      In his motion, Miller also asked the trial court to suppress a photo
array that the police presented to an eyewitness. That aspect of Miller’s
suppression motion is not at issue in this appeal.



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issues that Miller set forth in his suppression motion and reiterated on the

record at the beginning of the hearing, namely, (1) whether the totality of

the circumstances demonstrated that Miller’s statement was involuntary, and

(2) whether the detectives continued to question Miller after he had invoked

his right to counsel.        On April 10, 2014, the trial court denied Miller’s

suppression motion.

       The Commonwealth joined the cases against Miller, Collier, and

Freeman for trial.4 See Pa.R.Crim.P. 582 (“Defendants charged in separate

indictments or informations may be tried together if they are alleged to have

participated in the same act or transaction or in the same series of acts or

transactions constituting an offense or offenses.”).              On April 21, 2014,

following a five-day jury trial, Miller was convicted of second-degree murder,

robbery, kidnapping, conspiracy to commit kidnapping, and conspiracy to

commit robbery. On June 23, 2014, the trial court sentenced Miller to life

imprisonment.       On July 28, 2014, Miller filed a post-sentence motion,

wherein he once again argued that “there was not a valid waiver of his

Miranda[5]     rights.”      Miller’s   Post-sentence   Motion,    7/28/2014,   at   2

(unnumbered).       Following a hearing, the trial court denied Miller’s post-

sentence motion on October 30, 2014.
____________________________________________


4
      Teel pleaded guilty to third-degree murder, and agreed to testify for
the Commonwealth at his co-conspirators’ trial.
5
       See Miranda v. Arizona, 384 U.S. 436 (1966).



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      On November 28, 2014, Miller timely filed a notice of appeal.           On

December 2, 2014, the trial court ordered Miller to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).            Miller

timely complied.   On January 20, 2015, the trial court filed a Pa.R.A.P.

1925(a) opinion.

      Miller presents one issue for our consideration: “Did the suppression

court err in not suppressing the inculpatory statement of [Miller] taken on

June 4, 2013, beginning at 11:08 a.m., because some ten hours had elapsed

since he had last been advised of his Miranda rights?” Brief for Miller at 1.

      Our standard of review of an order denying a motion to suppress
      evidence is limited to determining whether the findings of fact
      are supported by the record and whether the legal conclusions
      drawn from those facts are in error.          Commonwealth v.
      Crompton, 682 A.2d 286 (Pa. 1996); Commonwealth v.
      Chambers, 598 A.2d 539 (Pa. 1991).                In making this
      determination, this [C]ourt may only consider the evidence of
      the Commonwealth’s witnesses, and so much of the witnesses
      for the defendant, as fairly read in the context of the record as a
      whole, which remains uncontradicted. Id. If the evidence
      supports the findings of the trial court, we are bound by such
      findings and may reverse only if the legal conclusions drawn
      therefrom are erroneous. Id.

Commonwealth v. Ellis, 700 A.2d 948, 954 (Pa. Super. 1997) (citations

modified).

      Miller argues that, although he was given Miranda warnings at 12:49

a.m., Detective Richard should have rewarned Miller of his constitutional

rights before he made his first incriminating statement at 11:08 a.m. The




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Pennsylvania Supreme Court has explained the legal principles attendant to

such claims as follows:

     This Court has never created a prophylactic rule that a suspect
     must be rewarned of his constitutional rights every time a
     custodial interrogation is renewed.         Commonwealth v.
     Bennett, 282 A.2d 276, 279 (Pa. 1971). Rather, we view the
     totality of the circumstances in each case to determine whether
     repeated warnings are necessary where the initial warnings have
     become stale or remote. Id. Factors that are relevant to such
     an inquiry are:

          [T]he length of time between the warnings and the
          challenged interrogation, whether the interrogation was
          conducted at the same place where the warnings were
          given, whether the officer who gave the warnings also
          conducted the questioning, and whether the statements
          obtained are materially different from other statements
          that may have been made at the time of the warnings.

     Id.    These criteria, though not mandatory, guide us in
     determining whether there has been a “clear continuity of
     interrogation.” See Commonwealth v. Hoss, 283 A.2d 58, 66
     (Pa. 1971).

Commonwealth v. Scott, 752 A.2d 871, 875 (Pa. 2000).

     Nevertheless, before we can address the merits of Miller’s claim, we

first must determine whether he                 has preserved it for our review.

“[A]ppellate   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);

Commonwealth v. Thur, 906 A.2d 552, 566 (Pa. Super. 2006) (“When a

defendant raises a suppression claim to the trial court and supports that



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claim with a particular argument or arguments, the defendant cannot then

raise    for   the   first   time   on   appeal   different   arguments   supporting

suppression.”).

        It is well-settled law that motions to suppress evidence are
        decided prior to the beginning of trial.      Moreover, pre-trial
        rulings on the suppression of evidence are final.       In sum,
        suppression motions must ordinarily be made before the trial to
        the suppression court, they must be made with specificity and
        particularity as to the evidence sought to be suppressed and the
        reasons for the suppression, and the suppression court’s
        determination is to be final, except in the case of evidence not
        earlier available.

Commonwealth v. Metzer, 634 A.2d 228, 233 (Pa. Super. 1993) (citations

omitted).

        Although the burden in suppression matters is on the Commonwealth

to establish “that the challenged evidence was not obtained in violation of

the defendant’s rights,” Pa.R.Crim.P. 581(D), that burden is triggered only

when the defendant “state[s] specifically and with particularity the evidence

sought to be suppressed, the grounds for suppression, and the facts and

events in support thereof.” Commonwealth v. McDonald, 881 A.2d 858,

860 (Pa. Super. 2005). Thus, when a defendant’s motion to suppress does

not assert specifically the grounds for suppression, he or she cannot later

complain that the Commonwealth failed to address a particular theory never

expressed in that motion. McDonald, 881 A.2d at 860; Commonwealth v.

Quaid, 871 A.2d 246, 249 (Pa. Super. 2005) (“[W]hen a motion to suppress

is not specific in asserting the evidence believed to have been unlawfully


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obtained and/or the basis for the unlawfulness, the defendant cannot

complain if the Commonwealth fails to address the legality of the evidence

the defendant wishes to contest.”).

       As explained supra, Miller’s motion set forth two grounds for

suppression of his inculpatory statement. First, Miller argued that “[u]nder

the totality of the circumstances, [his] inculpatory statements were not

made voluntarily.”        See Miller’s Motion to Suppress, 12/31/2013, at 2

(unnumbered).        Second, Miller asserted that, “[d]uring the course of

questioning, Miller made a request for counsel, even naming such counsel,

but detectives did not then terminate the interrogation.” Id. Nowhere in his

motion to suppress did Miller aver that his confession was obtained in

violation of Miranda because the initial warnings that Detective Richard

read at 12:49 a.m. became stale.6              Moreover, when the trial court asked

Miller to state his basis for requesting suppression on the record at the

commencement of the suppression hearing, Miller did not raise such an

argument. See N.T., 1/7/2014, at 20-21. His failure to advance timely this

particular legal theory renders his claim waived.7
____________________________________________


6
      In his brief, Miller concedes that his staleness argument is distinct
from a challenge to the voluntariness of a particular statement. See Brief
for Miller at 14 (“If a Miranda violation has occurred, suppression of the
statement is necessary, regardless of the voluntariness thereof and
regardless of the totality of the circumstances test.”).
7
      Even if Miller had preserved his staleness argument, our review of the
applicable case law leads us to believe that it likely would fail. The
(Footnote Continued Next Page)


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      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2015




                       _______________________
(Footnote Continued)

Pennsylvania Supreme Court has explained that, “where there is a time
lapse of several hours, the accused is not moved, and there is a clear
continuity of interrogation interrupted only by a lapse of time, there is no
need    for   repeated    warnings    before   the   second   interrogation.”
Commonwealth v. Scott, 752 A.2d 871, 876 (Pa. 2000) (quoting
Commonwealth v. Hoss, 283 A.2d 58, 66 (Pa. 1971)); see also
Commonwealth v. Bennett, 282 A.2d 276, 280 (Pa. 1971) (holding that
Miranda warnings were not stale when given approximately five hours
before interrogation, defendant was moved a distance of a few miles, and
the statement was given to an officer other than the warning officer).



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