Com. v. Rodriguez, D. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DEVON RODRIGUEZ
Appellant No. 1322 EDA 2013
Appeal from the Judgment of Sentence March 28, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008619-2012
BEFORE: GANTMAN, P.J., PANELLA, J., and STABILE, J.
MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 04, 2014
Appellant, Devon Rodriguez, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his
bench trial convictions for robbery, theft by unlawful taking, and receiving
stolen property.1 We affirm.
The relevant facts and procedural history of this case are as follows.
On July 1, 2012, Victim was walking near 15th and Oxford Streets in
Philadelphia, on the campus of Temple University, when a man snatched her
phone, wallet, and paycheck from her hand, and then ran northbound on
Sydenham Street. Victim notified police and described the perpetrator as a
black male, 24-25 years old, wearing a black shirt, denim shorts, black
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1
18 Pa.C.S.A. §§ 3701(a)(iv); 3921(a); and 3925(a) respectively.
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sneakers, and having a mini afro, last seen running northbound on
Sydenham Street. Detective Jim Rago investigated video footage of nearby
surveillance cameras but did not find footage of the actual crime.
Nevertheless, Detective Rago found video footage one block from the crime
Sydenham Street suspiciously looking behind him toward the crime scene.
distributed flyers to Temple University Police.
On July 2, 2012, Temple University Police Officer Daniel Paris was
given one of the flyers at roll call. At approximately 6:00 p.m., Officer Paris
was on patrol two blocks from the crime scene when he saw Appellant
walking on campus. Officer Paris concluded Appellant matched the
perpetrator depicted in the flyer. Specifically, Officer Paris noted that
the suspect and the photograph on the flyer. Officer Paris radioed central
detectives who instructed Officer Paris to bring Appellant in for an interview.
Officer Paris told Appellant detectives wanted to speak with him about an
incident that occurred the day before, placed Appellant in the back of his
patrol car in handcuffs, and brought him to police headquarters. At the
station, police concluded Appellant was the man on the flyer and applied for
At 11:50 p.m., police executed the search warrant for the residence of
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Appellant, where they recovered a pair of sneakers and three-quarter length
Detectives concluded the search at 2:00 a.m. and returned to the station.
Detectives were unable to continue the investigation due to overtime
restrictions, so police held Appellant in custody overnight. On July 3, 2012,
the detectives resumed the investigation at 5:15 p.m. when their shift
started. Detectives advised Appellant of his Miranda2 rights and then spoke
with him for a half-hour, during which time Appellant confessed to the
robbery.
The Commonwealth charged Appellant with robbery, theft by unlawful
taking, receiving stolen property, and simple assault. On August 21, 2012,
Appellant filed a suppression motion. The court held a suppression hearing
on March 28, 2013, at which time Appellant argued police lacked probable
poisonous tree; and challenging the validity of the search warrant based on
alleged insufficiency in the affidavit of probable cause. At the conclusion of
conducted a bench trial and convicted Appellant of robbery, theft by unlawful
taking, and receiving stolen property; the court found Appellant not guilty on
the simple assault charge. Immediately following trial, the court sentenced
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2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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plus thre
April 26, 2013. On May 3, 2013, the court ordered Appellant to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b), which Appellant timely filed on May 23, 2013. On May 28, 2013,
without leave of court, Appellant filed an amended Rule 1925(b) statement.
Appellant raises one issue for our review:
DID THE TRIALCOURT ERR WHEN IT DENIED
-TRIAL MOTION TO SUPPRESS EVEN
THOUGH [APPELLANT] WAS TAKEN INTO CUSTODY AND
ARRESTED ON LESS THAN PROBABLE CAUSE, WITHOUT
REASONABLE SUSPICION, WITHOUT A WARRANT AND
WITHOUT EXIGENT CIRCUMSTANCES, AND WHERE
PHYSICAL EVIDENCE WAS SUBSEQUENTLY SEIZED AND
AN OUT-OF-COURT STATEMENT SUBSEQUENTLY TAKEN,
AND [ARE] EXCLUDABLE AS FRUIT OF THE POISONOUS
TREE?
Appellant argues Officer Paris lacked probable cause to detain him
flyer. Appellant asserts Officer Paris did not watch the surveillance video
capture Appellant actually committing the crime. Appellant stresses he was
not wearing clothing or sneakers at the time of his arrest consistent with
Victim to come to the police station to identify Appellant as the perpetrator
or supply police with a composite sketch of the perpetrator. Appellant
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maintains Officer Paris did not engage in a meaningful conversation with
Appellant to provide additional justification for the arrest aside from the
declares police lacked probable cause to arrest Appellant, and any physical
of the poisonous tree doctrine.
flyer did not supply probable cause necessary for issuance of a search
Appellant would have contraband at his home, to justify issuance of a search
warrant; the court should have suppressed the physical evidence seized for
these reasons as well. Appellant concludes the court should have
Court must reverse the order denying suppression. We disagree.
[Rule] 1925(b)
Commonwealth v. Castillo, 585 Pa.
395, 403, 888 A.2d 775, 780 (2005) (quoting Commonwealth v. Lord,
Castillo
against the filing of untimely [Rule] 1925(b) statements extends to the filing
Commonwealth v. Jackson, 900 A.2d 936, 939 (Pa.Super. 2006), appeal
denied, 597 Pa. 712, 951 A.2d 1161 (2008) (holding appellant waived
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certain issues for appeal, which he raised for first time in untimely
supplemental Rule 1925(b) statement that he filed without leave of court).
See also Commonwealth v. Woods, 909 A.2d 372 (Pa.Super. 2006),
appeal denied, 591 Pa. 714, 919 A.2d 957 (2007) (holding appellant who
has filed timely Rule 1925(b) statement, and then for good cause shown
discovers additional time is required to file supplemental Rule 1925(b)
statement, must file separate petition seeking permission to file
supplemental statement nunc pro tunc, and obtain order granting request
for extension before issues raised in untimely supplemental statement will
be preserved for appellate review; appellant waived certain issues on appeal
where he did not file separate petition seeking prior court approval before
filing untimely supplemental statement).
Additionally, Pa.R.Crim.P. 581(D) requires that a motion to suppress
must state: (1) specifically and with particularity the evidence sought to be
suppressed; (2) the grounds for suppression; and (3) the facts and events in
support thereof. Pa.R.Crim.P. 581(D). See also Commonwealth v.
Irving, 485 Pa. 596, 403 A.2d 549 (1979), cert. denied, 444 U.S. 1020, 100
S. Ct. 676, 62 L. Ed. 2d 651 (1980) (explaining specificity requirement of Rule
581(D) is mandatory).
Instantly, on May 3, 2013, the court ordered Appellant to file a Rule
1925(b) statement within twenty-one days. Appellant timely complied on
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-tria
28, 2013, without leave of court, Appellant filed an untimely, amended Rule
1925(b) statement, repeating the claim raised in his initial concise statement
-trial motion to suppress physical evidence recovered from
Statement, 5/28/13, at 1). Because Appellant did not obtain court approval
suppression of physical evidence is waived for purposes of appellate review.3
See Castillo, supra; Woods, supra; Jackson, supra. Additionally, the
record makes clear police did not seize physical evidence from Appellant at
the time of his arrest
statement. Rather, police secured a search warrant and recovered physical
warrant.
statement. Thus, even if Appellant had timely filed his amended concise
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3
On June 11, 2014, Appellant filed an Application for Relief with this Court,
seeking to attach his amended Rule 1925(b) statement to his appellate brief.
Based on our disposition, we deny the motion as moot.
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statement, his issue concerning the validity of the search warrant would
nevertheless be waived. See Castillo, supra. See also Commonwealth
v. Reeves, 907 A.2d 1 (Pa.Super. 2006), appeal denied, 591 Pa. 712, 919
A.2d 956 (2007) (explaining concise statement which is too vague to allow
court to identify issues raised on appeal is functional equivalent of no
concise statement at all; if concise statement is too vague, court may find
waiver and disregard any argument).4
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Diana Anhalt,
comprehensively discusses and properly disposes of the question presented.
(See Trial Court Opinion, filed November 5, 2013, at 5-8) (finding: Officer
Paris stopped Appellant based on person-of-interest wanted flyer; police
constructed flyer based on surveillance footage near time of robbery
same direction Victim had last seen perpetrator, and engaging in suspicious
activity; when detained by Officer Paris, Appellant was in general area where
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4
tains nothing more than
boilerplate language with respect to his complaint regarding physical
evidence and appears to be a generic form/template suppression motion.
specificity requirements of Rule 581(D), which arguably justifies waiver of
as well. See Pa.R.Crim.P. 581(D); Irving, supra.
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robbery occurred, within approximately twenty-four hours of crime;
Appellant had same beard, hair style, build, and complexion as person in
wanted flyer; Officer Paris had reasonably trustworthy information regarding
description of suspect; testimony of Officer Paris was credible; based on
totality of circumstances, Officer Paris had probable cause to arrest
5, 6
because it would not have come to light but for the illegal actions of the
exploitation of that illegality or instead by means sufficiently distinguishable
Wong Sun v. United States, 371 U.S.
471, 488, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441, ___ (1963) (internal citations
omitted). Our Supreme Court has explained:
[I]n Wong Sun, the Supreme Court articulated at least
two instances wherein a post-illegal arrest confession is
admissible: (1) [i]f the confession is sufficiently an act of
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5
For these reasons, the court also concluded the physical evidence seized
See Trial
warrant application. Thus, had Appellant properly preserved his challenge to
the validity of the search warrant, we would agree with the trial court that
his claim would still afford him no relief.
6
On page six of its opinion, the trial court refers to a case named
Commonwealth v. Rivers
shows the court meant to cite Commonwealth v. Riley, 425 A.2d 813
(Pa.Super. 1981).
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free will to purge the primary taint of the unlawful
invasion[;] or (2) [i]f the connection between the arrest
and the statement had become so attenuated as to
dissipate the taint.
Commonwealth v. Bishop, 425 Pa. 175, 182-83, 228 A.2d 661, 665-66
(1967), cert. denied, 389 U.S. 875, 88 S. Ct. 168, 19 L. Ed. 2d 159 (1967)
(internal citations and quotation marks omitted).
Thus, the lack of probable cause does not automatically necessitate
Commonwealth v. Smith, 606 Pa. 127, 145, 995 A.2d 1143, 1153 (2010),
cert. denied, ___ U.S. ___, 131 S. Ct. 518, 178 L. Ed. 2d 382 (2010) (holding
arrest based on expired warrant did
police issued appellant Miranda warnings, appellant waived Miranda rights,
Each case must be evaluated in light of the following factors:
(1) whether Miranda warnings were given; (2) the
temporal proximity of the arrest and the confession; (3)
the presence of intervening circumstances; and, (4) the
purpose and flagrancy of the official misconduct. The
voluntariness of the statement is, of course, a threshold
requirement, and the confession must also be free of any
element of coerciveness due to the unlawful arrest.
Id. at 143, 995 A.2d at 1152 (internal citations and quotation marks
omitted). See also Commonwealth v. Williams, 2 A.3d 611, 621
(Pa.Super. 2010) (en banc), appeal denied, 610 Pa. 585, 19 A.3d 1051
(2011) (holding any applicable taint to physical evidence seized stemming
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from warrantless seizure of vehicle was purged by securing search warrant
and canine sniff that were not premised upon facts obtained as result of
warrantless seizure of vehicle).
Instantly, even if Officer Paris lacked probable cause to detain
uppression. The record
makes clear: (1) police issued Appellant Miranda warnings twice, once
conducted a formal interview of Appellant less than twenty-four hours after
Officer Paris made initial contact with Appellant, and Appellant confessed
during that timeframe; Appellant waived his right to counsel, and confessed
to the robbery approximately one-half hour into the interview; (3) police
required Appellant to spend the night at central headquarters, but only
Appellant to confess; and (4) Appellant did not ask to leave at any time and
police provided Appellant with food, water and a bathroom, consistent with
police procedure. The record demonstrates no evidence of flagrant police
misconduct. Thus, under the Smith factors, even if police initially lacked
and not warrant suppression. See Smith, supra. Accordingly, we affirm on
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2014
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