J-S79031-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JUAN RAMON SILVA,                          :
                                               :
                       Appellant               :      No. 1074 MDA 2018

         Appeal from the Judgment of Sentence Entered June 22, 2018
              in the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0005476-2016

BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                             FILED MARCH 15, 2019

        Juan Ramon Silva (“Silva”) appeals from the judgment of sentence

imposed following his convictions of two counts each of aggravated indecent

assault – complainant less than 13 years old, indecent assault of a person less

than 13 years of age, and corruption of minors.1 We affirm.

        The trial court set forth the relevant factual and procedural history

underlying the instant appeal as follows:

              On May 10, 2016[, the] Lancaster City Bureau of Police
        received a report from the Lancaster County Children and Youth
        Agency that [Silva] had had inappropriate sexual contact with his
        step-grandchildren, I.R. [born in August 2001] and A.R. [born in
        August 2003] some years prior. Both children were forensically
        interviewed at the Lancaster County Children’s Alliance regarding
        the allegations. Each child disclosed that on separate occasions
        in 2008 or 2009, [Silva] digitally penetrated them during
        overnight visits at his home at 603 S. Prince Street in Lancaster,
        Lancaster County, Pennsylvania.

____________________________________________


1   18 Pa.C.S.A. §§ 3125(a)(7), 6318(a)(1), 6301(a)(1).
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              Based on these disclosures, Detective Aaron Harnish
        [(“Detective Harnish”)] contacted [Silva] on August 22, 2016[.]
        [Silva] voluntarily came in to the Lancaster Bureau of Police to be
        interviewed. The two-and-a-half-hour interview was captured on
        video. At the outset of that interview, [Silva] was read his
        Miranda[2] rights[,] and he indicated that he was making a
        knowing, voluntary, and intelligent waiver of those rights. [Silva]
        was also advised of his right to counsel[,] and indicated that he
        was willing to waive that right. During the first half of the
        interview, [Silva] made admissions that he had physical contact
        with the victims, but denied sexual contact. After taking a short
        break[,] Detective Harnish informed [Silva] that based on a
        review of the evidence in this case and the statements made by
        [Silva], charges against [Silva] had been approved[,] and
        Detective Harnish continued to interrogate him. [Silva] continued
        to deny intentional sexual conduct but made admissions that skin-
        on-skin contact may have occurred. Following the interview,
        [Silva] was taken into custody.

           Prior to trial, [Silva] filed two pre-trial suppression
        [M]otions.[FN] At the hearing on both [M]otions, [the trial court]
        asked counsel to outline the specific suppression issues to be
        addressed. [Silva] stipulated that he was properly Mirandized at
        the beginning of the interrogation and that there was no challenge
        to the first half of the interview. Counsel then acknowledged that
        the only challenge being raised was whether he was unfairly
        induced into inculpating himself by Detective Harnish’s
        interrogation tactics. After a careful review of the record and the
        law, [the trial court] found [Silva’s] claims meritless and denied
        his suppression [M]otion on November 13, 2017.

           [FN]The first suppression [M]otion broadly challenged that
           his waiver of Miranda rights prior to the interview was not
           knowing, voluntary, and intelligent[,] although it did not
           aver a specific reason as to why this was the case. The
           second suppression [M]otion challenged that Detective
           Harnish unfairly induced [Silva] into inculpating himself.

             After a four-day jury trial[, Silva] was convicted on January
        25, 2018 of [the above-mentioned crimes]. [The trial court]
____________________________________________


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

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      subsequently sentenced [Silva,] on June 22, 2018[,] to an
      aggregate [term] of ten to twenty (10-20) years of incarceration.
      [Silva] filed his Notice of [] Appeal on July 2, 2018[,] and his
      [court-ordered Pa.R.A.P. 1925(b)] Concise Statement of Errors on
      July 19, 2018[,] to which the Commonwealth provided a timely
      response.

Trial Court Opinion, 8/14/18, at 1-3 (citations to record and some footnotes

omitted).

      On appeal, Silva raises the following question for our review:

      Whether the trial court erred in denying [Silva’s] [M]otion to
      suppress the portion of [Silva’s] video-recorded statements to law
      enforcement where [Silva] admits to having physical contact with
      the victims[,] when the record clearly demonstrated that [Silva]
      requested an attorney and no longer wished to answer questions?

Brief for Appellant at 4.

      We adhere to the following standard of review:

      In reviewing the denial of a motion to suppress, our responsibility
      is to determine whether the record supports the suppression
      court’s factual findings and legitimacy of the inferences and legal
      conclusions drawn from those findings. If the suppression court
      held for the prosecution, we consider only the evidence of the
      prosecution’s witnesses and so much of the evidence for the
      defense as, fairly read in the context of the record as a whole,
      remains uncontradicted.       When the factual findings of the
      suppression court are supported by the evidence, the appellate
      court may reverse if there is an error in the legal conclusions
      drawn from those factual findings.

Commonwealth v. Arnold, 932 A.2d 143, 145 (Pa. Super. 2007) (citation

omitted).

      Silva claims that he asserted his right to an attorney when he realized

that Detective Harnish would not allow him to leave the interview. Brief for

Appellant at 10. According to Silva, Detective Harnish continued to question


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Silva, even after he requested an attorney, in an attempt to obtain a

confession. Id. at 10-11; see also id. at 11 (arguing that Detective Harnish

lied to Silva by indicating that an assistant district attorney was watching the

interview, and by stating that there was medical evidence establishing that

digital penetration had occurred years prior).           Silva asserts that any

statements he made to Detective Harnish, after expressing his wish for an

attorney, should have been suppressed. Id. at 11-12.3

       The trial court addressed Silva’s claim as follows:

             [Silva’s] only claim on appeal is that his statement to
       Detective Harnish should have been suppressed at trial because
       he requested an attorney and no longer wished to answer
       questions. … [Silva] did not raise this claim in the suppression
       hearing held on October 23, 2017. In fact, [Silva] stipulated at
       the beginning of that hearing that his Miranda waiver was
       knowing, voluntary, and intelligent. [Silva] never challenged that
       he was denied the right to counsel or was otherwise forced to
       answer questions. For this reason, [the trial court] considers his
       appeal on this issue waived.

             Even if [Silva] had properly preserved this issue[,] it is
       meritless. An invocation of the right to remain silent or request
       for an attorney must be unambiguous. After careful review of the
       two-and-a-half-hour interview, [Silva] at no time unambiguously
       requested an attorney or indicated that he no longer wished to
       answer questions. The only point in the interview in which [Silva]
       might have mentioned obtaining counsel was mumbled and could
       be interpreted as either: “I might call her a liar[,]” or “I might
       have to call a lawyer.” If it is the former, which indeed seems
       most likely given the context in which the statement was given,
       there is no appealable issue. If it is the latter, it would not qualify
       as an unequivocal request for an attorney[,] nor an indication that
____________________________________________


3 Silva failed to cite to any relevant legal authority in support of his claim.
See Pa.R.A.P. 2119(a) (providing that the argument shall include “such
discussion and citation of authorities as are deemed pertinent.”).

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       he no longer wished to answer questions. Indeed, the assertion
       that [Silva] no longer wished to answer questions is belied by the
       fact that he told Detective Harnish that he did not regret coming
       in to talk to him[,] even after he was told that he was being
       charged. [Silva’s] contention is therefore meritless.

Trial Court Opinion, 8/14/18, at 3-4 (citations and some paragraph breaks

omitted). Our review confirms that Silva failed to preserve his claim in his

Motion to suppress, at the suppression hearing, or in a post-hearing

submission.4 See Commonwealth v. Carper, 172 A.3d 613, 619 (Pa. Super.

2017) (indicating that a defendant must preserve a suppression issue in a

motion to suppress, at a suppression hearing, or in a post-hearing

submission); see also Pa.R.A.P. 302 (providing that “[i]ssues not raised in

the lower court are waived and cannot be raised for the first time on appeal.”).

Thus, his sole claim on appeal is waived.

       Because Silva failed to preserve his claim for review, and we otherwise

discern no error by the trial court, we affirm Silva’s judgment of sentence.




____________________________________________


4  We additionally note that while the video recording of the challenged
interview was admitted into evidence at trial, Silva failed to include a copy of
the video in the certified record. See Commonwealth v. Preston, 904 A.2d
1, 7 (Pa. Super. 2006) (stating that “the responsibility rests upon the appellant
to ensure that the certified record on appeal is complete in the sense that it
contains all of the materials necessary for the reviewing court to perform its
duty.”).

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J-S79031-18


     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2019




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