J-S55028-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :       IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                        Appellant        :
                                         :
            v.                           :
                                         :
ANTONIO R. ORTIZ,                        :
                                         :
                        Appellee         :       No. 3588 EDA 2013


             Appeal from the Order Entered December 17, 2013,
           In the Court of Common Pleas of Northampton County,
             Criminal Division, at No. CP-48-CR-0001805-2013.


BEFORE: BOWES, SHOGAN and OTT, JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED NOVEMBER 06, 2014

      The Commonwealth appeals from the order of the trial court granting

the motion filed by Appellee, Antonio R. Ortiz, to suppress statements made

by Appellee to the police. We affirm and remand for further proceedings.

      The suppression court presented its findings of fact in this case as

follows:

      1. On December 24, 2012, at             approximately 1:30 a.m.,
      Inspector Daniel Reagan, of the City    of Easton Police Department
      received a call to respond to the       400 Block of Northampton
      Street, Easton, following a report of   an assault. N.T. 9/12/13 at
      9.

      2. Inspector Reagan was informed that one individual (later
      identified as Andres Ruiz Avelizapa) had been taken to the
      hospital in serious condition and that a suspect was being
      detained (identified as [Appellee]). Id.
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        3. [Appellee] was taken to the police station and detained in the
        juvenile booking room, because a female witness was being
        detained in the adult booking room. Id. at 10.

        4. The female witness [who was detained in the adult booking
        room] was identified as Samantha Vega, who was [Appellee’s]
        girlfriend. Id.

        5. When Inspector Reagan entered the juvenile booking room,
        he observed [Appellee] detained in the holding area. Id.

        6. Inspector Reagan was in plain clothes and did not have a
        firearm with him. Id. at 11.

        7. Inspector Reagan observed that [Appellee] was excited and
        agitated. Id.

        8. Inspector Reagan told [Appellee] that he wished to speak with
        him and removed [Appellee] from the holding cell. Id. at 12.

        9. The video of [Appellee] in the booking room was submitted as
        Commonwealth Exhibit 1. The transcript of that video was
        submitted as Commonwealth Exhibit 3.

        10. Upon entering the booking room, Inspector Reagan
        attempted to read [Appellee] his Miranda rights.[1] N.T. 9/12/13
        at 13, Exhibit 3 at 2-3.

        11. [Appellee] immediately asserted that he wanted a lawyer.
        Id. [Appellee] specifically stated, “Not to be rude, I’m not
        signing nothing without a lawyer. I’m being arrested, I need a
        lawyer. I want a lawyer . . .” Exhibit 3 at 3.

        12. Inspector Reagan explained to [Appellee] that because he
        wanted a lawyer, they could not speak further. N.T. 9/12/13 at
        13, Exhibit 3 at 2-3.

        13. [Appellee] continued to ask if he could go to work the
        following day. Exhibit 3 at 3-4.



1
    Miranda v. Arizona, 384 U.S. 436 (1966).

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     14. [Appellee] then stated that he wanted to talk “off the
     record.” N.T. 9/12/13 at 14, Exhibit 3 at 4.

     15. Inspector Reagan again tried to read [Appellee] the Miranda
     rights form, but [Appellee] continued to ask questions. Exhibit 3
     at 6.

     16. Lieutenant Matthew Gerould entered the booking room and
     directed [Appellee] to return to the holding cell, and [Appellee]
     stated that “I waive the lawyer.” N.T. 9/12/13 at 23, Exhibit 3
     at 7.

     17. Lt. Gerould reminded [Appellee] that they could not speak
     because [Appellee] had requested a lawyer. Exhibit 3 at 7.

     18. [Appellee] proceeded to state that he tried to help the
     [victim], [when] he saw [the victim] laying on the ground
     through the window. Exhibit 3 at 7-8.

     19. Lt. Gerould told [Appellee] that he knew [Appellee’s] version
     was untrue and that [Appellee] was under arrest for assault
     because witnesses saw [Appellee] hit the victim. Exhibit 3 at 9-
     12.

     20. Lt. Gerould told [Appellee] that Samantha stated she and
     [Appellee] were arguing and the victim intervened and
     [Appellee] hit the victim, knocking him out. Exhibit 3 at 12.

     21. [Appellee] responded that the victim had groped Samantha,
     so he pushed him. Exhibit 3 at 12-13.

     22. Lt. Gerould stated that he continued to answer [Appellee’s]
     questions to prevent [Appellee] from becoming more agitated
     and to prevent an officer-safety issue. N.T. 9/12/13 at 25.

     23. Detective Darren Snyder and Officer Russell Demko were
     directed by Lt. Gerould to collect [Appellee’s] clothing for
     evidence. Id. at 30-31. The video of this interaction was
     submitted as Commonwealth Exhibit 2, and the transcript was
     admitted as Commonwealth Exhibit 4.




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     24. During the collection of [Appellee’s] clothes, he continued to
     ask questions and make statements. N.T. 9/12/13 at 32, Exhibit
     4 at 1-2.

     25. [Appellee] asked “Is there any way we can do that lawyer
     shit again?” Exhibit 4 at 2. [Appellee] stated that he wanted to
     talk. Exhibit 4 at 4-5.

     26. Detective Snyder reminded [Appellee] several times that
     they couldn’t speak because [Appellee] requested an attorney.
     N.T. 9/12/13 at 32, Exhibit 4 at 7-8.

     27. Detective Snyder described [Appellee’s] demeanor as excited
     and agitated. N.T. 9/12/13 at 32.

     28. Detective Snyder also transported [Appellee] to the
     Northampton County Prison Central Booking, along with
     Detective Piperato. Id. at 33.

     29. While in the car, [Appellee] asked Detective Snyder what he
     was under arrest for, and if it was serious. Id.

     30. Detective Snyder advised [Appellee] that he was under
     arrest for aggravated assault which was a serious felony. Id. at
     34.

     31. [Appellee] asked Detective Snyder why the charges were so
     serious. Id.

     32. Detective Snyder explained that the victim was in the
     hospital and was not expected to live. Id.

     33. At Central Booking, [Appellee] continued to speak to
     Detective Snyder. Id. at 34-35.

     34. Detective Snyder reminded [Appellee] that they could not
     speak. Id. at 35.

     35. [Appellee] stated that he pushed the victim because [the
     victim] had grabbed [Appellee’s] girlfriend. Id.




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      36. [Appellee] then stated that he did not assault the victim but
      was across the street and observed the victim being assaulted
      by a fat guy and a guy in a wheelchair, and [Appellee] only ran
      across the street to render aid. Id.

      37. [Appellee] was       charged    with   Criminal   Homicide   and
      Aggravated Assault.

Trial Court Opinion, 12/17/13, at 1-5.

      On August 22, 2013, Appellee filed a motion to suppress his

statements made to the police. The trial court held a hearing on the motion

to suppress and both sides filed briefs with the trial court. On December 17,

2013, the trial court entered an order granting Appellee’s motion to

suppress. The Commonwealth then brought this timely appeal.2

      The Commonwealth presents the following issue for our review:



2
   The record reflects that the Commonwealth has filed a certification
pursuant to Pa.R.A.P. 311(d), indicating that the trial court’s order
prohibiting the introduction of evidence terminates or substantially
handicaps the prosecution of the case. Notice of Appeal, 12/18/13. Under
Pa.R.A.P. 311(d), the Commonwealth has a right to appeal interlocutory
orders in criminal cases if the Commonwealth certifies that the orders will
terminate or substantially handicap the prosecution. Commonwealth v.
Flamer, 53 A.3d 82, 86 n.2 (Pa. Super. 2012). Specifically, Rule 311(d)
provides as follows:

      In a criminal case, under the circumstances provided by law, the
      Commonwealth may take an appeal as of right from an order
      that does not end the entire case where the Commonwealth
      certifies in the notice of appeal that the order will terminate or
      substantially handicap the prosecution.

Pa.R.A.P. 311(d). Therefore, pursuant to Pa.R.A.P. 311(d), this Court has
jurisdiction to hear this appeal from the trial court’s interlocutory order, even
though the order did not terminate the prosecution.

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J-S55028-14



       I. WHETHER THE SUPPRESSION OF A DEFENDANT’S
       SPONTANEOUSLY UTTERED STATEMENTS TO THE POLICE WAS
       PROPER.

Commonwealth’s Brief at 4.

       The Commonwealth argues that the trial court erred in suppressing the

statements made by Appellee to police.         The Commonwealth claims that

when the police attempted to give Appellee his Miranda warnings, Appellee

consistently interrupted them.    The Commonwealth further contends that,

although Appellee stated that he wanted a lawyer even though he had not

been Mirandized, Appellee continued to make unsolicited and spontaneous

comments about the crime after police indicated that they could not speak to

him.    The Commonwealth concludes that these statements by Appellee

should be admissible at trial. For the following reasons we are constrained

to disagree.

       Our standard of review is as follows:

       When the Commonwealth appeals from a suppression order, we
       . . . consider only the evidence from the defendant’s witnesses
       together with the evidence of the prosecution that, when read in
       the context of the entire record, remains uncontradicted. The
       suppression court’s findings of fact bind an appellate court if the
       record supports those findings.         The suppression court’s
       conclusions of law, however, are not binding on an appellate
       court, whose duty it is to determine if the suppression court
       properly applied the law to the facts.




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Commonwealth v. Nester, 709 A.2d 879, 880-881 (Pa. 1998) (internal

citations omitted). The issue of voluntariness is a question of law. Id. at

881.

       Further, it is well settled that “[t]he admission of evidence is within the

sound discretion of the trial court, and will be reversed on appeal only upon

a   showing     that   the   trial   court    clearly   abused   its   discretion.”

Commonwealth v. Miles, 846 A.2d 132, 136 (Pa. Super. 2004) (en banc)

(citing Commonwealth v. Lilliock, 740 A.2d 237 (Pa. Super. 1999)).

Abuse of discretion requires a finding of misapplication of the law, a failure

to apply the law, or judgment by the trial court that exhibits bias, ill-will,

prejudice, partiality, or that was manifestly unreasonable, as reflected by the

record. Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009).

       We are aware that Pennsylvania Rule of Criminal Procedure 581, which

addresses the suppression of evidence, provides in relevant part as follows:

       (H) The Commonwealth shall have the burden . . . of
       establishing that the challenged evidence was not obtained in
       violation of the defendant’s rights.

Pa.R.Crim.P. 581(H). Moreover, “[t]he Commonwealth need only show by a

preponderance of the evidence that a voluntary, knowing and intelligent

waiver of a constitutional right was made.” Commonwealth v. Davis, 526

A.2d 1205, 1209 (Pa. Super. 1987).

       It is a precept of constitutional law that a suspect subject to a

custodial interrogation by police must be warned that he has the right to

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remain silent, that anything he says may be used against him in court, and

that he is entitled to the presence of an attorney.               Miranda, 384 U.S. at

469.     Therefore, the protection against self-incrimination provided by

Miranda is triggered only if two conditions are met: the defendant must be

in custody, and the defendant’s statements must be the result of

interrogation.   See Commonwealth v. Heggins, 809 A.2d 908, 914 (Pa.

Super. 2002) (stating that “in order to trigger the safeguards of Miranda,

there must be both custody and interrogation”).               If an individual is not

advised of his Miranda rights prior to custodial interrogation by law

enforcement officials, evidence obtained through the interrogation cannot be

used against him. In re K.Q.M., 873 A.2d 752, 755 (Pa. Super. 2005).

       The Court in Miranda explained the following:

              Our holding will be spelled out with some specificity in the
       pages which follow but briefly stated it is this: the prosecution
       may not use statements, whether exculpatory or inculpatory,
       stemming from custodial interrogation of the defendant unless it
       demonstrates the use of procedural safeguards effective to
       secure the privilege against self-incrimination.      By custodial
       interrogation, we mean 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.

Miranda, 384 U.S. at 444. Hence, without custody there is no Miranda-

based argument for suppression.

       Regarding interrogation, our Supreme Court has long explained that

interrogation occurs when the police should know that their words or actions

are    reasonably   likely   to   elicit   an     incriminating    response,   and   the

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circumstances must reflect a measure of compulsion above and beyond that

inherent in custody itself. Commonwealth v. Bracey, 461 A.2d 775, 780

(Pa. 1983).     However, statements not made in response to custodial

interrogation are classified as gratuitous and are not subject to suppression

for lack of Miranda warnings. Heggins, 809 A.2d at 914. As our Supreme

Court has stated, “Miranda does not preclude the admission of spontaneous

utterances.” Commonwealth v. Johnson, 42 A.3d 1017, 1029 (Pa. 2012).

In fact, our Supreme Court has often repeated that volunteered or

spontaneous statements, not the product of police conduct, are admissible

even    when    the   suspect     has   not   received   Miranda   warnings.

Commonwealth v. Baez, 720 A.2d 711, 720 (Pa. 1998).                See also

Commonwealth v. Gibson, 720 A.2d 473, 480 (Pa. 1998) (holding that

voluntary statements that are not responsive to any questions are

admissible); Commonwealth v. King, 554 721 A.2d 763, 775 (Pa. 1998)

(finding that a defendant’s unsolicited remarks are admissible).

       However, “interrogation” has been defined as “questioning initiated by

law enforcement officials.”     Commonwealth v. DeJesus, 787 A.2d 394,

401 (Pa. 2001) (citing Miranda, 384 U.S. at 444). Interrogation implicating

a suspect’s Miranda rights occurs only when the police “should know that

their words or actions are reasonably likely to elicit an incriminating

response from the suspect.”      Commonwealth v. Luster, 71 A.3d 1029,




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1051 (Pa. Super. 2013) (en banc) (quotation marks omitted). In order to

determine whether questions posed to a suspect were “reasonably likely to

elicit an incriminating response,” courts must focus on a suspect’s

perceptions and give relevance to the officer’s constructive knowledge.

DeJesus, 787 A.2d at 402; see also Commonwealth v. Cruz, (Pa. Super.

2013) (stating that “Interrogation is defined as ‘police conduct calculated to,

expected to, or likely to evoke admission.’”).

      Our review of the record reflects that there is no question that

Appellee was indeed in custody for purposes of Miranda when he made the

subject communication with police.     Inspector Daniel Reagan testified that

while Appellee was in the juvenile booking room at the police station he was

under arrest.3 N.T., 9/12/13, at 16. Likewise, Detective Darren Snyder, the

police officer who transported Appellee by vehicle from the juvenile booking

room to the Northampton County Prison Central Booking area, informed

Appellee that he was under arrest and explained the nature of the crime

involved. Id. at 33-34. Accordingly, for the sake of our review, we must

conclude that Appellee was subject to custody and under arrest.

      It is undisputed that Appellee was not read his Miranda rights at any

time prior to his statements to the police.      In fact, a fair reading of the

booking interviews reflects that Appellee asked to be read his rights and


3
 As previously mentioned, Appellee was in the juvenile booking room of the
police station because the adult booking room was occupied.

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they were declined because Appellee had previously expressed his desire for

a lawyer. Specifically, the transcript of the booking interview contains the

following exchange:

      OFFICER #2:        Get back in the cage.

      [APPELLEE]:        I’m not trying to be a wise guy --

      OFFICER #2:        No, no, no.   You ask for a lawyer, we got to
      stop.

      [APPELLEE]:        No, no, no.

      OFFICCER #1:       Take your sneakers off.

      [APPELLEE]:        Read it, read it, read it.

      OFFICER #1:        Take your shoes off.

      OFFICER #2:        [Appellee], we can’t, man.

      [APPELLEE]:        Read that rights ---

      OFFICER #2:        [Appellee], we can’t.        You asked for a
      lawyer.

Commonwealth Exhibit 3, at 7 (emphasis added).

      Indeed, our further review of the record indicates that Appellee was in

custody for several hours and exposed to multiple police officers during that

period. Although Appellee was told that he was not being “questioned,” we

cannot help but conclude that an implicit interrogation of Appellee occurred,

as reflected in the following interaction:

      OFFICER #2:     I understand. I understand. But here, I’m just
      explaining to you what’s going on.     We’re not asking you


                                        -11-
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     questions. You asked for an attorney. What I’m explaining to
     you is, you’re under arrest now for assault, because what you
     said wasn’t the truth, because people saw you involved with this
     guy. You didn’t see it from inside, okay?

     [APPELLEE]:      People who seen what?

     OFFICER #2:      I can’t tell you witnesses. People saw you hit
     this guy.

     [APPELLEE]:      I tried to help the guy out.

     OFFICER #2:      The witnesses – (inaudible.)

     [APPELLEE]:      I tried to help the guy.

     OFFICER #2:        No. No. No. They saw you hit him. You had
     just said that, you had just said that-

     [APPELLEE]:      Yeah --

     OFFICER #2:      No. You said you saw him from inside --

     [APPELLEE]:      No, I was outside the building --

     OFFICER #2:      No, you just said you were inside the building.

                                ***

     OFFICER #2:      No, no, no.

     [APPELLEE]:      I’m just a little upset. I got one more strike on
     my job --

     OFFICER #2:       [Appellee], real quick. You’re being charged
     with assault, because you just told us that you saw this guy
     when you were inside the Hotel Hampton.           Other people
     witnessed you hit this guy.

     [APPELLEE]:      No. I seen it through the window.




                                     -12-
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     OFFICER #2:       And you’re not even admitting that you were
     arguing with the guy before you hit him.

     [APPELLEE]:       Why would I argue - - -

     OFFICER #2:        So if you didn’t do anything wrong, why would
     you leave all that out of the story?

Id. at 9-10, 11. In fact, additional portions of the transcript from the same

booking   interview   reflect   similar     interrogation   techniques   of   the

Commonwealth designed to illicit incriminating responses from Appellee. Id.

at 11-14. Likewise, our review of the transcript of the interview of Appellee

that occurred in the juvenile booking room reflects that the police employed

the same types of interrogation techniques in order to encourage Appellee to

provide statements even though he was not properly Mirandized and had

asked for an attorney. Commonwealth’s Exhibit 4. Accordingly, contrary to

the Commonwealth’s assertions, we are left to conclude that Appellee’s

remarks, which occurred during custodial interrogation by the officers, did

not constitute spontaneous, voluntary statements.

     In summary, it is undisputed that Appellee was in custody at the time

he made the statements, as he had been arrested, and was not properly

administered his Miranda warnings. Although the officers’ conduct may not

have constituted a typical interrogation, our review of the record reflects

that the officers continued conversations with Appellee after Appellee

invoked his right to an attorney. The trial court, acting in the suppression




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context, determined that the officers had engaged in conduct designed

specifically to elicit incriminating information from Appellee.

      Therefore, we conclude that the evidence of record supports the

findings of the trial court and its legal determination that the statements

made by Appellee after he invoked his right to an attorney should be

suppressed.     Accordingly, because the police failed to give Appellee his

Miranda warnings prior to the custodial interrogation, the trial court

properly suppressed Appellee’s statements.

      Order affirmed. Case remanded for further proceedings. Jursidiction

relinquished.

      Judge Ott joins this Memorandum.

      Judge Bowes Concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/6/2014




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