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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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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
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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.
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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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Com. v. Ortiz, A.
Combined Opinion