J-A30034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JONATHAN FERNANDO RODRIGUEZ-               :
    QUIJANO                                    :
                                               :   No. 407 MDA 2019
                       Appellant               :

        Appeal from the Judgment of Sentence Entered January 24, 2019
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0001485-2018


BEFORE:      DUBOW, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                           FILED FEBRUARY 26, 2020

        Appellant, Jonathan Fernando Rodriguez-Quijano, appeals from the

aggregate judgment of sentence of fifteen to thirty years’ incarceration, which

was imposed after his jury trial conviction for four counts of persons not to

possess, use, manufacture, control, sell or transfer firearms.1 We affirm.

        The facts taken from the trial court opinion are as follows.

        On March 15, 2018, at 9:20 a.m., State Parole Agent Larry Snyder
        (Agent Snyder), Berks County Sheriff's Deputy Craig Thorn
        (Deputy Thorn) and two other Berks County Sheriff’s Deputies
        executed an arrest warrant for Fernando Rodriguez[, Appellant’s
        father,] at 735 N. 8th Street, Reading, Berks County,
        Pennsylvania (Residence). The bench warrant was issued on
        March 9, 2018, and contained the Residence’s address as the
        address for Fernando Rodriguez. A prior warrant and arrest for
        Fernando Rodriguez also listed this same address.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. § 6105 (a)(1).
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     Upon arrival at the Residence, Deputy Thorn knocked on the door
     and encountered Appellant. Deputy Thorn was in a sheriff’s
     uniform with a taser and firearm on his utility belt. Deputy Thorn
     explained why he was there and asked Appellant if he knew
     Fernando Rodriguez. Appellant informed Deputy Thorn that
     Fernando Rodriguez previously resided at the Residence but was
     kicked out within the last two weeks. Appellant informed the
     officers that he was the owner of the Residence. Deputy Thorn
     asked Appellant if the officers could come in and look for Fernando
     Rodriguez. Appellant agreed and invited the officers into the
     Residence. Deputy Thorn was outside of the Residence on the
     front porch when he asked [Appellant] for permission to enter.

     Deputy Thorn and Agent Snyder entered the Residence and
     searched for Fernando Rodriguez. During their search they
     located two firearms in the Residence. An assault rifle was located
     in a first-floor back bedroom within arm’s reach of Appellant’s co-
     defendant, Luis Morales (Morales). Morales denied knowledge of
     the rifle and said he had just arrived two weeks ago from Florida.
     An additional rifle was located in Appellant’s second-floor
     bedroom. Drug paraphernalia and ammunition were observed in
     both rooms. None of the firearms were reported as stolen and
     nobody claimed ownership of them. Deputy Thorn instructed all
     of the people within the house to go to the first-floor front room
     where they remained until the Reading Police Department arrived.
     The Berks County Sheriff’s Office was not allowed to perform
     investigations so they called the Reading Police Department. They
     informed Appellant and the other civilians of the telephone call.
     There were three uniformed deputies present with four civilians
     and no guns were drawn. Nobody was in handcuffs. The Reading
     Police Department arrived a half hour from the time the deputies
     arrived. During that time, the deputies confirmed that Fernando
     Rodriguez was not present inside of the Residence.

     As the deputies waited for the Reading Police Department, Deputy
     Guy Lehman of the Berks County Sheriff’s Office (Deputy Lehman)
     made small talk with the individuals seated in the front room.
     During this conversation, Appellant spontaneously admitted that
     all of the firearms were his and that he had rifles in his room. This
     statement was not given in response to a question.

     After the Reading Police Department arrived on scene, Criminal
     Investigator Brian Errington of the Reading Police Department (CI.

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        Errington) separated Appellant from the rest of the group and read
        him Miranda warnings. Appellant agreed to speak with C.I.
        Errington and did not ask for an attorney to be present. Appellant
        admitted that he had approximately four firearms in the house
        and that he was a convicted felon prohibited from possessing
        firearms. C.I. Errington also reviewed a search waiver for the
        Residence which was signed by Appellant and the other individuals
        in the home. The firearms located by law enforcement were
        collected and put into evidence. Appellant was taken into custody.

Trial Court Opinion at 2-4.

        Appellant was arrested on March 15, 2018 and charged with five counts

of persons not to possess, use, manufacture, control, sell or transfer firearms.

Appellant filed a pre-trial motion to suppress any and all physical evidence on

the basis that sheriff deputies unconstitutionally entered his home. In this

motion, Appellant also sought to suppress any statements he made and

argued he was subjected to custodial interrogation by sheriff deputies and was

not given Miranda2 warnings prior to making any statements to the deputies.

A hearing on Appellant’s suppression motion was held on July 9, 2018. On

August 23, 2018, the trial court denied Appellant’s motion to suppress.

Appellant proceeded to a jury trial on January 14, 2019, and he was found

guilty of four counts of persons not to possess, use, manufacture, control, sell

or transfer firearms.3 On January 24, 2019, Appellant was sentenced to an


____________________________________________


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

3The Commonwealth withdrew one count of persons not to possess, use,
manufacture, control, sell or transfer firearms before trial.



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aggregate sentence of fifteen to thirty years’ incarceration. Appellant filed a

timely post-sentence motion on February 4, 2019. The trial court denied the

post-sentence motion on February 6, 2019. On March 5, 2019, Appellant filed

this timely direct appeal.4

       Appellant presents the following issue for our review:

       Whether the suppression court erred in denying Appellant’s pre-
       trial motion to suppress evidence.

Appellant’s Brief at 4. In fact, however, Appellant includes four issues under

separate headings in the argument section of his brief, with each heading

encompassing several sub-issues, a total of eight issues for our review. We

note that issues not presented in the statement of questions involved portion

of an appellant’s brief are generally deemed waived. Pa.R.A.P. 2116(a) (“The

statement of the questions involved must state concisely the issues to be

resolved, expressed in the terms and circumstances of the case but without

unnecessary detail.”); Werner v. Werner, 149 A.3d 338, 341 (Pa. Super.

2016) (internal citation omitted) (“Issues not presented in the statement of

questions involved are generally deemed waived.”). “However, such a defect

may be overlooked where an appellant’s brief suggests the specific issue to

be reviewed and appellant’s failure does not impede our ability to address the

merits of the issue.” Id. at 341 (internal citation and brackets omitted). We


____________________________________________


4Appellant filed his statement of errors complained of on appeal on March 29,
2019. The trial court entered its opinion on May 20, 2019.


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are readily able to discern the issues from the argument section of Appellant’s

brief and, therefore, we do not find waiver on this basis.

      We consider Appellant’s suppression issues in light of the following

standard of review:

      In reviewing the denial of a suppression motion, our role is to
      determine whether the suppression court’s factual findings are
      supported by the record and whether the legal conclusions drawn
      from those facts are correct. Because the Commonwealth
      prevailed before the suppression court, we may consider only the
      evidence of the Commonwealth and so much of the evidence for
      the defense as remains uncontradicted when read in the context
      of the record as a whole. Where the suppression court’s factual
      findings are supported by the record, we are bound by these
      findings and may reverse only if the court’s legal conclusions are
      erroneous. Where . . . the appeal of the determination of the
      suppression court turns on allegations of legal error, the
      suppression court’s legal conclusions are not binding on an
      appellate court, whose duty it is to determine if the suppression
      court properly applied the law to the facts. Thus, the conclusions
      of law of the courts below are subject to our plenary review.

Commonwealth v. Yim, 195 A.3d 922, 926 (Pa. Super. 2018) (internal

citations and brackets omitted). Our scope of review from a suppression ruling

is limited to the evidentiary record created at the suppression hearing.

Commonwealth v. Fulton, 179 A.3d 475, 487 (Pa. 2018).                 For ease of

discussion, we will start with the issues that Appellant presents on appeal that

were duly preserved.

      The first issue Appellant presents to this Court is that the sheriff deputies

unconstitutionally entered his home, challenging whether the deputies had

consent to enter his home and whether the deputies had probable cause that

Appellant’s father would be located in Appellant’s home.

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J-A30034-19


      The Fourth Amendment requires that, even when seeking to
      execute an arrest warrant, a law enforcement entry into a home
      must be authorized by a warrant reflecting a magisterial
      determination of probable cause to search that home, whether by
      a separate search warrant or contained within the arrest warrant
      itself. Absent such a warrant, an entry into a residence is excused
      only by a recognized exception to the search warrant requirement.

Commonwealth v. Romero, 183 A.3d 364, 405–06 (Pa. 2018).                     One

exception to the warrant requirement is a search conducted pursuant to

consent. Commonwealth v. Kurtz, 172 A.3d 1153, 1159 (Pa. Super. 2017)

(internal citation and quotation marks omitted).

      Absent a valid, implied consent, we have required suppression
      courts to evaluate a defendant’s actual consent based on the
      totality of all the circumstances. . . . In determining the validity
      of a given consent, the Commonwealth bears the burden of
      establishing that a consent is the product of an essentially free
      and unconstrained choice—not the result of duress or coercion,
      express or implied, or a will overborne—under the totality of the
      circumstances. The standard for measuring the scope of a
      person’s consent is based on an objective evaluation of what a
      reasonable person would have understood by the exchange
      between the officer and the person who gave the consent. Such
      evaluation includes an objective examination of the maturity,
      sophistication and mental or emotional state of the defendant.
      Gauging the scope of a defendant’s consent is an inherent and
      necessary part of the process of determining, on the totality of the
      circumstances presented, whether the consent is objectively valid,
      or instead the product of coercion, deceit, or misrepresentation.

Id. at 1159-60. It is within the exclusive province of the suppression court

to, “pass on the credibility of witnesses and determine the weight to be given

to their testimony.” Commonwealth v. Fudge, 213 A.3d 321, 326–27 (Pa.

Super. 2019) (internal citation omitted).      “This Court will not disturb a




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J-A30034-19


suppression court’s credibility determination absent a clear and manifest

error.” Id.

      At the motion to suppress hearing, Deputy Thorn testified as follows.

On [March 15, 2018] he “attempted to serve” a “bench warrant for failure to

appear for Fernando Rodriguez,” Appellant’s father, at the residence in

question. N.T. 7/9/18 at 4-5. At “approximately 9:20 in the morning” Deputy

Thorn “went to the front door [of the residence], with Agent Snyder.” Id. at

6. Deputy Thorn was “wearing a black deputy uniform with a vest that says

sheriff on the front,” and had a “taser” and a “firearm” on his utility belt. Id.

Deputy Thorn testified that his weapon was not drawn. Id. at 7. He testified

that he knocked on the door, that Appellant “answered the door” and “opened

up,” that he “explained to [Appellant] what I was doing there, asked him if he

knew the defendant, Fernando Rodriguez.” Id. Deputy Thorn testified that

after Appellant told him that Fernando Rodriguez had been “kicked out of the

house within the last two weeks, I asked him if we could come in and take a

look around just to make sure that [Fernando Rodriguez] wasn’t there, and

he stated that was fine, he invited me and Agent Snyder in the house.” Id.

at 7-8. Deputy Thorn elaborated that Appellant “said come on in,” “that’s

fine.” Id.

      Appellant also testified at the motion to suppress hearing. He stated

that he did not give the sheriffs permission to enter his residence.        N.T.

7/9/2018 at 60.      Appellant testified he told the sheriffs that Fernando


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J-A30034-19


Rodriguez “didn’t live there.” Id. at 61. Appellant testified that the sheriffs

stated “we still got to search the residence.” Id. Appellant testified he stated

“where’s your proof to come in my house,” and “where’s the paperwork for

you to come in my house.” Id. Appellant testified “he just rushed in,” “[h]e

just walked in my house,” and “I was standing in front of the door.” Id.

       The trial court made a credibility determination based upon hearing the

testimony of Deputy Thorn and Appellant and determined that Appellant did

give consent to Deputy Thorn to enter his home.           Findings of Facts and

Conclusions of Law, 8/23/18 at 2. We find no clear and manifest error in its

credibility determination. Fudge, 213 A.3d at 326–27. Because the trial court

found that Appellant gave a free and voluntary consent to Deputy Thorn for

the sheriffs to enter his home, and this finding is supported by the suppression

hearing testimony, the consent exception to the warrant requirement was

satisfied and the Commonwealth need not demonstrate the probable cause

upon which the arrest warrant was issued. Kurtz, 172 A.3d at 1159. Lastly,

as Appellant did not present a coercion argument to the trial court, he is

precluded from bringing this issue for the first time on appeal.5 We find no

____________________________________________


5 Appellant raised the issue that his consent was coerced in his brief to this
Court. However, at no point did Appellant raise this issue before the trial
court. The only argument made before the trial court was that Appellant did
not give consent for the sheriffs to enter his home. The first time Appellant
argued that the consent given was coerced was in his brief to this Court.
Appellant’s Brief at 29. Failure to raise the issue before the trial court results
in waiver. See Commonwealth v. Napold, 170 A.3d 1165, 1168 (Pa. Super.



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error in the denial of Appellant’s suppression motion on this ground. Yim,

195 A.3d at 926.

       Next, Appellant states that the trial court erred when it denied his

motion to suppress because he was subjected to custodial interrogation by

the sheriff deputies without being provided Miranda warnings.

       “Interrogation is defined as police conduct calculated to, expected to, or

likely to evoke admission.” Commonwealth v. Umstead, 916 A.2d 1146,

1152 (Pa. Super. 2007) (internal citation omitted).

       Custodial interrogation is 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.
       [However,] volunteered or spontaneous utterances by an
       individual are admissible without the administration of Miranda
       warnings. When a defendant gives a statement without police
       interrogation, we consider the statement to be volunteered and
       not subject to suppression. . . . [A] statement made in a custodial
       setting would not be suppressed where the suspect spontaneously
       blurts out the statement.

Commonwealth v. Garvin, 50 A.3d 694, 698 (Pa. Super. 2012) (internal

citations and quotation marks omitted).

       A review of the motion to suppress transcripts reveals the following

testimony by Deputy Lehman elicited on direct examination:


____________________________________________


2017) (“issues not raised in the lower court are waived and cannot be raised
for the first time on appeal”); see also Pa.R.A.P. 302(a); Commonwealth v.
Douglass, 701 A.2d 1376, 1378 (Pa. Super. 1997) (internal citation omitted)
(“the failure to raise a suppression issue prior to trial precludes its litigation
... on appeal.”). Accordingly, this issue is waived.



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         Counsel: And so there were 3 to 4 deputies there and 4 civilians;
         is that correct?
         Deputy Lehman: Yes. There were four civilians, yes.
         Counsel: And do you recall how long you waited for the Reading
         Police Department to arrive?
         Deputy Lehman: I was a little bit – it was several minutes; at
         least 20 minutes I would say. They were probably busy that
         morning.
         Counsel: And while you were waiting were you or other deputies
         conversing with the civilians?
         Deputy Lehman: Yes.
         Counsel: And what was said?
         Deputy Lehman: We were making small talk. I was talking to
         [Appellant], . . . , and I was also talking to Luis [Morales]. . . We
         were just having conversations. I was talking. Luis [Morales] was
         explaining how we were nice guys up here in Reading. The police
         were nice up here. And he was explaining some of the encounters
         he had with the police down where he lived. So we were just
         joking back and forth a little bit about that. He thought we were
         pretty cool guys up here. He told me that – well, I asked him, I
         said, does he like firearms. Did you ever shoot firearms. He said,
         yes, all the time I shoot because my brother is in the military. I
         think the Navy. They go shooting all the time. So we were having
         chitchat back and forth like that.
         Counsel: And towards the end of the conversation did either
         defendant make any incriminating statements about firearms in
         the house or what would be found?
         Deputy Lehman: Yes. At one point [Appellant] told me, he said
         just pin these on me. He said all these guns are mine. ‘Cause I
         asked him if they belong to anyone. He said just pin them on me.
         I’m the man of the house. I’ll take the rap for it. He said I’m not
         waiving Rule 600. I’m not going straight to court. He was making
         statements like that.
         ...
         Counsel: But immediately before he said just pin this all on me
         had you asked [Appellant] any questions?
         Deputy Lehman: No. He just blurted that out. I was actually
         talking to Luis [Morales] at the time.

Note of Testimony, 7/9/2018 at 27-29.

         The trial court issued the following findings of facts pertaining to this

issue:

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J-A30034-19


      Deputy Lehman observed that 3 to 4 uniformed deputy sheriffs
      were present on scene and there were people seated in the front
      living room. Nobody was in handcuffs and no guns were drawn.
      As Deputy Lehman was talking with Mr. Morales, Mr. Rodriguez
      [Appellant] stated that the guns were his; he is the man of the
      house and to “pin” the guns on him. This statement was not made
      in response to any conversation. Deputy Lehman responded to
      [Appellant] and told him that he didn’t want to “pin” the guns on
      anyone and just wanted to know who they belonged to.

Findings of Fact and Conclusions of Law, 8/23/18 at 3-4.       The trial court

concluded that Appellant’s statements were volunteered and as such, even

assuming the occupants were in custody for purposes of Miranda, the

statements are admissible under Pennsylvania law. Id. at 11.

      Because the trial court found that Appellant was not being questioned

and that Deputy Lehman was talking to another person at the time Appellant

made the statement, the statement was not made in custodial interrogation.

Garvin, 50 A.3d at 698. Additionally, even if Appellant was determined to be

in custody, his statement is admissible because he spontaneously blurted it.

Id. We find that the trial court’s factual findings are supported by the record

and discern no error of law in the denial of Appellant’s suppression motion on

this ground. Yim, 195 A.3d at 926.

      We now turn to Appellant’s remaining issues. “Any issues not raised in

a 1925(b) statement will be deemed waived.” Commonwealth v. Lord, 719

A.2d 306, 309 (Pa. 1998).      On appeal, Appellant argues that the sheriff

deputies exceeded their authority to enter the residence when they began

inquiring into the ownership of the firearms, and that the waiver of his



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J-A30034-19


Miranda rights to Reading Police was not voluntary. However, Appellant did

not preserve these issues in his Pa.R.A.P. 1925(b) statement of errors

complained of on appeal, therefore, these issues are waived. See Lord, 719

A.2d 309.

      Furthermore, “[i]ssues not raised in the lower court are waived and

cannot be raised for the first time on appeal.” See Napold, 170 A.3d at 1168;

see also Pa.R.A.P. 302(a). It is well-settled that “appellate 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) (internal citation omitted). Thus, “the failure to raise a suppression

issue prior to trial precludes its litigation ... on appeal.” Douglass, 701 A.2d

at 1378. Additionally, we note, “this failure is not cured by submitting the

challenge in a Rule 1925(b) statement.” Commonwealth v. Sauers, 159

A.3d 1, 10–11 (Pa. Super. 2017).

      Appellant argues that the sheriff deputies exceeded their authority to

enter the residence by waiting for the Reading Police Department to arrive,

that Reading Police unlawfully entered the residence, and that the firearms

found in his home did not meet the plain view exception. However, Appellant

did not present these issues in his motion to suppress. See Omnibus Pre-Trial

Motion, 6/15/18. Appellant’s Omnibus Pre-Trial Motion states, as the grounds

for suppression, “law enforcement did not have the authority to enter the


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residence . . . merely to execute an arrest warrant that was not supported by

probable cause, the seizure of the items from [Appellant’s] residence is

unlawful,” and “[l]aw enforcement did not provide [Appellant] with his

Miranda warnings prior to interrogating him relative to the items seized from

his residence . . . he did not knowingly and voluntarily waive his rights to

remain silent in regards to the statements made to police.” Id. at ¶¶ 17-26.

Indeed, at the motion to suppress hearing, counsel for Appellant states, “there

are two issues presented to the [c]ourt . . . the argument for the Miranda

statements are limited to that interaction with the Sheriff’s Department . . .

the primary issue here is whether or not there was the ability for law

enforcement [sheriff deputies] to enter the residence when they did.” N.T.

7/9/18 at 64. Based on the fact that Appellant did not raise the issues that

the sheriff deputies exceeded their authority to enter the residence by waiting

for the Reading Police Department to arrive, that Reading Police unlawfully

entered the residence, and that the firearms found in his home did not meet

the plain view exception, in his motion to suppress before the trial court, we

find that these issues are waived on appeal. See Napold, 170 A.3d at 1168;

see also Pa.R.A.P. 302(a); Little, 903 A.2d at 1272-73; Douglass, 701 A.2d

at 1378.

      Based on the foregoing, Appellant is not entitled to relief. Judgment of

sentence affirmed.




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     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/2020




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