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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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