J-S19005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

GABRIEL MARTINEZ-LOPEZ,

                         Appellant                   No. 2248 EDA 2014


      Appeal from the Judgment of Sentence Entered March 27, 2014
          In the Court of Common Pleas of Montgomery County
           Criminal Division at No(s): CP-46-CR-0003402-2010


BEFORE: BENDER, P.J.E., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                          FILED MAY 03, 2016

      Appellant, Gabriel Martinez-Lopez, appeals from the judgment of

sentence of life imprisonment, without the possibility of parole, plus

consecutive terms of incarceration of 20 to 40 years, and 11½ to 23 months,

imposed after he was convicted of, inter alia, first-degree murder,

kidnapping, robbery, and criminal conspiracy. Appellant challenges the trial

court’s denial of his motion to suppress statements he made to police, and

the discretionary aspects of his sentence. After careful review, we affirm.

      We summarize the facts and procedural history of Appellant’s case as

follows.   On April 9, 2010, Upper Merion Police, and members of the

Montgomery County Detective Bureau, were dispatched to 148 Walker Lane

in King of Prussia, Pennsylvania.    Upon their arrival, police discovered the

beaten body of Jose Armando Cazares-Olarte (hereinafter “the victim”).
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After processing the crime scene, police surmised that the victim had been

killed at a different location, and his body dumped on Walker Lane.         An

autopsy revealed that the victim died as a result of numerous blunt force

injuries to his head, face, and torso, and the manner of death was ruled a

homicide. The victim’s phone records revealed that Appellant was the last

person to call the victim on the day of the murder.

      On April 27, 2010, police interviewed Appellant.       While he initially

denied any involvement in the murder, he eventually admitted that he and

the victim’s wife, Delia Hernandez-Cortes (hereinafter, “Delia”), were

involved in an affair. Appellant further confessed that Delia told him that the

victim was physically abusing her, and she asked Appellant to kill him.

Appellant agreed, and enlisted his brother, Miguel Martinez (hereinafter,

“Miguel”), to assist him.   Appellant told police that on the night of the

murder, he and Miguel kidnapped the victim at gunpoint, forced him into the

bed of their truck, and drove him to their home at 349 Heritage Lane in King

of Prussia. During this time, Delia was in frequent contact with Appellant,

asking him about the events taking place.

      Once Appellant and Miguel arrived at their home with the victim, they

removed him from the truck and ordered him to the ground. Appellant then

grabbed a large retaining wall block and struck the victim with it in the back

of the head. He then put a plastic bag around the victim’s neck, attempting

to suffocate him. Once the victim died, they loaded his body back into the

truck and dumped it at the location where it was later discovered by police.

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The brothers then returned to their home to clean up. Appellant also told

police that he hid the victim’s keys, cell phone, and one of the victim’s

sneakers in his home. Police later discovered those items inside Appellant’s

residence.   Appellant stated that at 6:40 a.m. on the morning after the

murder, Delia called to ask him if the victim was dead, and Appellant

informed her that he was.

     Investigating detectives also interviewed Miguel, who essentially

corroborated Appellant’s version of the murder. Miguel added that Appellant

had struck the victim three times in the head with the brick, and after the

victim collapsed to the ground, Miguel took the rock and threw it at the

victim’s head.

     After    obtaining   confessions    from   Appellant   and   Miguel,   police

interviewed Delia on April 30, 2010. Delia admitted that she and Appellant

conspired to kill the victim because he had been physically and mentally

abusive to Delia.   Delia claimed that she confided in Appellant about the

abuse, and Appellant suggested that he kill the victim for Delia. She agreed,

and offered to pay Appellant by giving him the victim’s truck after the

murder.

     Appellant, Miguel, and Delia were all charged as co-defendants.

Before trial, however, Miguel and Delia entered guilty pleas to third-degree

murder and related offenses in exchange for testifying against Appellant.

Prior to Appellant’s trial, he filed a motion to suppress the statements he

provided to police on April 27, 2010. A suppression hearing was conducted

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on August 13, 2013, after which the court denied Appellant’s motion to

suppress.

       Appellant’s case proceeded to a jury trial, at which Miguel and Delia,

among others, testified for the Commonwealth.             Appellant also took the

stand in his own defense.          At the conclusion of trial, the jury convicted

Appellant of first-degree murder, kidnapping, robbery, criminal conspiracy,

possession of a firearm by an illegal alien, and criminal solicitation. The trial

court ordered a pre-sentence investigation report (PSI), and conducted a

sentencing hearing on March 27, 2014. At the conclusion thereof, the court

sentenced Appellant to a mandatory term of life imprisonment, without the

possibility of parole, for his first-degree murder offense.        The court also

imposed a consecutive term of 20 to 40 years’ incarceration for Appellant’s

conspiracy conviction, and a consecutive term of 11½ to 23 months’

imprisonment for his firearm offense.          Additionally, the court imposed two

concurrent terms of twenty years’ probation for the kidnapping and robbery

convictions.

       Appellant filed a timely, post-sentence motion to modify his sentence,

which was ultimately denied by operation of law.           Appellant filed a timely

notice of appeal,1 and also timely complied with the trial court’s order to file


____________________________________________


1
  There were several, peculiar procedural issues that arose between
Appellant’s filing of his post-sentence motion and his notice of appeal that
need not be discussed for purposes of our review. A detailed summary of
(Footnote Continued Next Page)


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a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Herein, Appellant presents two issues for our review:

        [(1)] Did the [t]rial [c]ourt err in denying Appellant’s [m]otion to
        [s]uppress the statement that [p]olice took from him on April
        27, 2010; where the same was taken without a voluntary,
        knowing and intelligent waiver of Appellant’s Miranda[2] rights?

        [(2)] Did the [t]rial [c]ourt abuse its discretion in sentencing
        Appellant to [l]ife in [p]rison, plus consecutive terms of twenty
        (20) to forty (40) years and eleven and one half (11½) to twenty
        three (23) months of incarceration on the charges of [f]irst[-
        d]egree [m]urder, [c]riminal [c]onspiracy to commit [f]irst[-
        d]egree [m]urder and [p]ersons [n]ot to [p]ossess [f]irearms,
        respectively; where the evidence introduced at trial showed
        [Appellant’s] actions to be a single criminal episode and not
        separate and distinct incidents of criminality?

Appellant’s Brief at 5.

        In his first issue, Appellant challenges the trial court’s denial of his

pretrial motion to suppress inculpatory statements he gave to police on April

27, 2010. Our standard of review for denial of a suppression motion is as

follows:

        In reviewing an order from a suppression court, we consider the
        Commonwealth’s evidence, and only so much of the defendant’s
        evidence as remains uncontradicted. We accept the suppression
        court’s factual findings which are supported by the evidence and
        reverse only when the court draws erroneous conclusions from
        those facts.

                       _______________________
(Footnote Continued)

those issues is set forth by the trial court in its Pa.R.A.P. 1925(a) opinion.
See Trial Court Opinion (TCO), 3/13/15, at 5-7.
2
    Miranda v. Arizona, 384 U.S. 436 (1966).




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Commonwealth v. Hoopes, 722 A.2d 172, 174-75 (Pa. Super. 1998).

      Here,   Appellant     provided    police     with   five   written   statements

throughout the day on April 27, 2010.              The first of those five written

statements    was   given    before    Appellant    received     Miranda    warnings.

Additionally, just prior to receiving Miranda warnings, Appellant made an

oral, inculpatory statement to police, which triggered their providing him

with his Miranda rights and obtaining his written waiver thereof. Following

his waiver of his rights, Appellant gave police four more written statements,

which culminated in Appellant’s confessing to the crime.

      Appellant does not contest the validity of his waiver of his Miranda

rights; rather, he contends that he was in custody when his first written

statement was given and, because Miranda rights had not been provided to

him at that point, his constitutional rights were violated, and all five of his

statements should have been suppressed.             We assess this argument with

the following legal principles in mind:

      A law enforcement officer must administer Miranda warnings
      prior to custodial interrogation. The standard for determining
      whether an encounter with the police is deemed “custodial” or
      police have initiated a custodial interrogation is an objective one
      based on a totality of the circumstances, with due consideration
      given to the reasonable impression conveyed to the person
      interrogated. Custodial interrogation has been defined as
      “questioning initiated by law enforcement officers after a person
      has been taken into custody or otherwise deprived of his [or her]
      freedom of action in any significant way.” “Interrogation” is
      police conduct “calculated to, expected to, or likely to evoke
      admission.” When a person's inculpatory statement is not made
      in response to custodial interrogation, the statement is classified



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      as gratuitous, and is not subject to suppression for lack of
      warnings.

         The appropriate test for determining whether a situation
      involves custodial interrogation is as follows:

         The test for determining whether a suspect is being
         subjected to custodial interrogation so as to necessitate
         Miranda warnings is whether he is physically deprived of
         his freedom in any significant way or is placed in a
         situation in which he reasonably believes that his freedom
         of action or movement is restricted by such interrogation.

      Said another way, police detentions become custodial when,
      under the totality of the circumstances, the conditions and/or
      duration of the detention become so coercive as to constitute the
      functional equivalent of arrest.

             The factors a court utilizes to determine, under the totality
      of the circumstances, whether a detention has become so
      coercive as to constitute the functional equivalent of arrest
      include: the basis for the detention; its length; its location;
      whether the suspect was transported against his or her will, how
      far, and why; whether restraints were used; whether the law
      enforcement officer showed, threatened or used force; and the
      investigative methods employed to confirm or dispel suspicions.
      The fact that a police investigation has focused on a particular
      individual does not automatically trigger “custody,” thus
      requiring Miranda warnings.

Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999)

(internal citations omitted).

      At the suppression hearing in this case, the Commonwealth presented

the testimony of Detective Richard Nilsen, who worked for the Montgomery

County Detective Bureau at the time Appellant was interviewed on April 27,

2010. Detective Nilsen testified that on that day, he and another detective

from the Upper Merion Township Police Department went to Appellant’s

residence at approximately 9:30 a.m. N.T. Suppression Hearing, 8/13/13,



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at 9.     The detectives were dressed in plainclothes and were driving an

unmarked, sport utility vehicle (SUV) that had no “radios or sirens or

anything like that[.]”      Id. at 10-11.     Detective Nilsen stated that they

knocked on Appellant’s door and told a woman who answered that they were

there to speak to Appellant.       Id. at 10.   Detective Nilsen said Appellant

“came out immediately[,]” the detectives explained who they were and “that

[they] were … investigating a homicide[,] and asked if [Appellant] would be

willing to come with [them] to … the police station to answer some

questions.” Id. Detective Nilsen testified that Appellant willingly “grabbed

his coat” and got into the backseat of the SUV to travel to the police

department.     Id. at 11, 47.    Detective Nilsen stated that at no point was

Appellant placed in any sort of restraints.      Id. at 13.     The detective also

testified that there was no “shield or separation divider between the front

and the rear passenger compartment” of the SUV in which Appellant was

transported. Id. at 47.

        During the trip to the police station, which lasted only a “few minutes,”

id.,    Appellant   was   “completely   cooperative”   and    “friendly”   with   the

detectives, and engaged in “casual conversation related to his present

employment ….” Id. at 12.        Once the three men arrived at the station, the

detectives took Appellant to a “dual office” used by two detectives. Id. The

office contained two desks and was approximately 12 feet by 10 feet in size.

Id. at 14. The detectives “sat [Appellant] down in front of the desk[,]” with

Detective Nilsen sitting behind the desk and the other detective sitting off to

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Appellant’s right. Id. at 14. The detectives “asked [Appellant] if he needed

anything[,]” such as “food, drink[,] or whether he needed … to use the

bathroom.” Id. at 13. Appellant had a cup of coffee at that time. Id. at

14; see also “Investigation Interview Form” (Commonwealth’s Exhibit C-1;

(admitted at N.T., 8/13/13, at 107), 4/27/10, at 1 (Appellant’s stating that

he was offered something to eat and drink and he had coffee).

     Detective Nilsen testified that he then “had a conversation” with

Appellant that “started off with just more biographical information about

him, where he worked, his family, things like that.”   Id. at 15. Detective

Nilsen noted that during the conversation with Appellant, his tone was

“[c]ordial,” and he was “speaking to [Appellant] as [he] would to any other

witness or person that [he] would talk to.”    Id. at 18.       The detective

“started to ask [Appellant] about … people involved in [the] investigation,

whether he had known them and things like that.”       Id. at 15.   Appellant

essentially told the detectives that he knew the victim’s wife, Delia, from

work, but he claimed to not know the victim. Id. at 19. After talking with

Appellant for approximately 40 minutes, Detective Nilsen asked Appellant if

they could reduce their conversation to a written statement, and Appellant

agreed.   See “Investigation Interview Form” at 1.     At the start of that

written statement, Detective Nilsen asked Appellant, “did we tell you that

you are not under arrest and [are] free to leave if you want?” Id. Appellant

stated, “Yes.”   Id.   Questions posed to him and his answers were then

recorded and reviewed with Appellant and he signed the statement at the

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end.   N.T. at 21.      The transcription of Appellant’s first written statement

concluded at 11:36 a.m. See “Investigation Interview Form” at 6.

       At that point, the detectives told Appellant they would take “a little bit

of a break.”     Id. at 21.      They asked Appellant if he wished “to use the

bathroom or … wanted anything.” Id. The detectives then left to “find out

… what was going on with the investigation.” Id. at 22. Shortly thereafter,

they returned to Appellant “and presented [him with] some information that

… conflicted with what he had just told [them].” Id. at 22. Appellant then

changed his original story, describing more about his relationship with Delia

and admitting that he did know the victim. Id. During the course of this

second statement, Appellant asked for an interpreter, saying “it would be

easier to explain in Spanish[.]”           Id. at 26.    Detective Vincent Fuentes

entered the office and began interpreting for Appellant.             Id. at 27.   At

approximately 1:00 p.m., Appellant “said something about striking the

victim with a rock.” Id. at 27.

       Detective Nilsen testified that “at that point, [he] just paused the

statement, … and asked for Detective Fuentes to assist [him] with giving

Miranda warnings in Spanish and English.”               Id. at 27.   Detective Nilsen

stated that they used “the standard bilingual form” to provide Appellant with

his Miranda rights.3 Id. at 28. Appellant wrote “[s]í” twice at the bottom

____________________________________________


3
 Detective Fuentes testified that he read the entire form to Appellant in both
English and Spanish. Id. at 92.



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of the form in response to questions asking if he understood the rights read

to him, and if with those “rights in mind, [he was] willing to talk with [the

detectives] and give [them] a voluntary statement….” Id. at 28-29. After

receiving his Miranda warnings, Appellant provided four more written

statements to police between 2:10 p.m. and 7:52 p.m. Id. at 30, 33, 35.

With each statement, Appellant admitted more culpability for the murder,

eventually confessing to his full involvement in the victim’s killing. Detective

Nilsen testified that all of Appellant’s statements were reduced to writing,

reviewed by Appellant, and signed. Id. at 19, 21, 30, 33-34, 35. He further

stated that Appellant’s “demeanor never changed the entire day until we

finally said good night to him. He was cooperative throughout.” Id. at 29.

The detective also commented that Appellant was “[f]riendly towards [the

detectives]” and was offered bathroom breaks, food, and drinks throughout

the day. Id. at 35. Detective Nilson testified that at no point did Appellant

ever tell the detectives that he was tired, confused, or that he did not

understand what he was doing. Id. at 36.

      Based on the testimony of Detective Nilsen, as well as the other

evidence presented by the Commonwealth, the trial court stated findings of

fact at the conclusion of the suppression hearing.     Pertinent to Appellant’s

issue on appeal, the court found that Appellant “clearly was not in custody

when he was transported to the Upper Merion Police Department.”          Id. at

139. The court further found that Appellant was not in custody “when he




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concluded the first phase of his interview” or “when he signed his rights form

and acknowledged that he was giving up his constitutional rights.” Id.

       The record of the suppression hearing, summarized above, supports

the court’s factual finding that Appellant was not in custody when he made

his first written statement to police, denying any involvement in the murder.

Prior to that statement, Appellant voluntarily went with Detective Nilsen to

the police station to answer some questions about the murder. He made the

very short trip to the police station in the back of an unmarked SUV. He was

not handcuffed or restrained in any way during the trip, or when he arrived

at the police station.   The interview occurred in an office and, before it

began, Appellant was offered food, drink, and had the opportunity to use the

restroom. He was informed that he was not under arrest and was free to

leave. The conversation that ensued was cordial, and the detectives sought

only   basic   biographical   information   from   Appellant,   and   information

pertaining to how he knew Delia and the victim.          Nothing in the record

suggests that the detectives showed, threatened, or used any type of force

or coercive tactics when speaking with Appellant.       Accordingly, the record

supports the trial court’s factual finding that Appellant was not in custody at

the time he provided his first written statement to police.

       After that statement, a short break was taken and Appellant was again

asked if he needed anything, such as food or drink. When the questioning

resumed, Appellant asked for an interpreter, and Detective Fuentes was

immediately provided to translate.     Appellant was still sitting in an office,

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and was not restrained in any way. Again, nothing in the record suggests

that the detectives used force, threats, or coercion when speaking with

Appellant the second time.       When Appellant was confronted with facts

inconsistent to his initial statement, he made an inculpatory statement

gratuitously, admitting that he hit the victim with a rock. Again, the record

supports the trial court’s finding that Appellant was not in custody at that

point. Detective Nilsen immediately halted the interview and had Detective

Fuentes provide Appellant with his Miranda rights in both English and

Spanish. Appellant waived those rights, and does not challenge the validity

of that waiver herein.    Accordingly, Appellant’s subsequent statements to

police were properly admitted, and were not ‘fruit of the poisonous tree,’ as

Appellant suggests.    Thus, Appellant’s first issue challenging the court’s

denial of his pretrial motion to suppress is meritless.

      In Appellant’s second issue, he contends that the court abused its

discretion   by   imposing   “consecutive     sentences   on   the   non-homicide

charges.”    Appellant’s Brief at 26.         Appellant’s claim challenges the

discretionary aspects of his sentence.

      A challenge to the discretionary aspects of a sentence must be
      considered a petition for permission to appeal, as the right to
      pursue such a claim is not absolute. When challenging the
      discretionary aspects of the sentence imposed, an appellant
      must present a substantial question as to the inappropriateness
      of the sentence. Two requirements must be met before we will
      review this challenge on its merits. First, an appellant must set
      forth in his brief a concise statement of the reasons relied upon
      for allowance of appeal with respect to the discretionary aspects
      of a sentence. Second, the appellant must show that there is a


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        substantial question that the sentence imposed is not
        appropriate under the Sentencing Code. That is, [that] the
        sentence violates either a specific provision of the sentencing
        scheme set forth in the Sentencing Code or a particular
        fundamental norm underlying the sentencing process.          We
        examine an appellant’s [Pa.R.A.P.] 2119(f) statement to
        determine whether a substantial question exists. Our inquiry
        must focus on the reasons for which the appeal is sought, in
        contrast to the facts underlying the appeal, which are necessary
        only to decide the appeal on the merits.

Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008)

(citations, quotation marks and footnote omitted; emphasis in original).

        Here, Appellant included a Rule 2119(f) statement in which he asserts

that the court abused its discretion in sentencing him because it failed to

consider information pertaining to Appellant’s “history and characteristics …

as well as his rehabilitative needs.”     Appellant’s Brief at 17.     Appellant

further claims that the court “focused solely on the serious nature of the

offense” and did not state sufficient reasons on the record for imposing

“consecutive sentences to the [l]ife [imprisonment] sentence.”          Id.   For

these    reasons,   Appellant   argues   that   his   sentence   is   “manifestly

unreasonable, unduly excessive and extremely vindictive.” Id. at 18.

        We need not decide whether these claims present substantial

questions for our review because, even if they did, Appellant has waived

them. “It is well settled that an [a]ppellant’s challenge to the discretionary

aspects of his sentence is waived if the [a]ppellant has not filed a post-

sentence motion challenging the discretionary aspects with the sentencing

court.” Commonwealth v. Bromley, 862 A.2d 598, 603 (Pa. Super. 2004)



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(citation omitted).4      Here, the only issue presented in Appellant’s post-

sentence motion was a claim that “the charges to which [Appellant] was

found guilty were not separate and distinct incidents of criminality, but

rather, one continuing course of criminal conduct.”              Post-Sentence Motion,

4/1/14, at 2 (unnumbered).            Because Appellant did not raise the novel

claims he asserts herein, i.e., that the court failed to consider mitigating

circumstances or state sufficient reasons on the record for imposing

consecutive sentences, they are waived for our review.

         We also note that even if Appellant had preserved these issues in his

post-sentence motion, he did not raise them in his Rule 1925(b) statement

and, thus, the trial court did not address them in its opinion.                  Pa.R.A.P.

1925(b) Statement, 8/19/14, at 1 (challenging his sentence on the basis

that “the evidence introduced at trial showed [Appellant’s] actions to be a

single    criminal   episode    and    not     separate   and     distinct    incidents   of

criminality”);   TCO     at   26-30    (addressing    only      Appellant’s    claim   that

____________________________________________


4
  See also Commonwealth v. Bullock, 948 A.2d 818 (Pa. Super. 2008)
(the right to appeal a discretionary aspect of sentence is not absolute and is
waived if the appellant does not challenge it in post-sentence motions or by
raising the claim during the sentencing proceedings); Commonwealth v.
Lloyd, 878 A.2d 867 (Pa. Super. 2005) (the appellant waived his challenge
to his sentence where he failed to raise the issue at the sentencing hearing
or in his post-sentence motion); Commonwealth v. Parker, 847 A.2d 745
(Pa. Super. 2004) (the appellant’s assertion that the trial court erred in
sentencing him in the aggravated range is waived as he failed to raise this
claim either at sentencing or in a post-sentence motion).




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consecutive sentences were improper because his actions were “a single

criminal episode and not separate and distinct incidents of criminality”).

Accordingly, the sentencing claims Appellant asserts on appeal are waived

on this basis, as well. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in

the Statement and/or not raised in accordance with the provisions of this

paragraph (b)(4) are waived.”).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2016




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