Com. v. Rodriguez, D.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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

Circulated 07/14/2014 12:11 PM

Circulated 07/14/2014 12:11 PM

Circulated 07/14/2014 12:11 PM

Circulated 07/14/2014 12:11 PM