Opinion
J-S36043-18 No. 2314 EDA 2017
09-27-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. JUAN VAZQUEZ Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence June 12, 2017
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000859-2015 BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Juan Vazquez, appeals from the judgment of sentence entered in the Monroe County Court of Common Pleas, following his jury trial convictions for aggravated assault, simple assault, recklessly endangering another person, and endangering the welfare of a child. We affirm.
18 Pa.C.S.A. §§ 2702(a)(1); 2701(a)(1); 2705; 4304(a)(1), respectively.
In its opinion filed October 26, 2017, the trial court accurately set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
Appellant raises four issues for our review:
WHETHER THE COURT'S LEGAL CONCLUSIONS WERE ERRONEOUS IN DENYING [APPELLANT'S] SUPPRESSION MOTION?
WHETHER THE COURT ABUSED ITS DISCRETION IN
ALLOWING EXPERT TESTIMONY FROM [DETECTIVE WEBBE] WITHOUT AN EXPERT REPORT?(Appellant's Brief at 7).
WHETHER THE COURT ABUSED ITS DISCRETION IN ALLOWING ADMISSION OF AN INFLAMMATORY PHOTOGRAPH OF VICTIM?
WHETHER THE COURT ABUSED ITS DISCRETION IN SENTENCING [APPELLANT]?
For purposes of disposition, we have re-ordered Appellant's third and fourth issues.
"Our standard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct." Commonwealth v. Williams , 941 A.2d 14, 26 (Pa.Super. 2008) (en banc) (internal citations omitted).
[W]e may consider only the evidence of the prosecution 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 record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.Id. at 27. Regarding custodial interrogations requiring the issuance of Miranda warnings:
Statements made during custodial interrogation are presumptively involuntary, unless the accused is first advised of [his] Miranda rights. 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." Miranda , supra at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. [T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. Thus, [i]nterrogation occurs where the police should know that their words or actions are reasonably likely to elicit an incriminating response from the suspect. [I]n evaluating whether Miranda warnings were necessary, a court must consider the totality of the circumstances. In conducting the inquiry, we must also keep in mind that not every statement made by an individual during a police encounter amounts to an interrogation. Volunteered or spontaneous utterances by an individual are admissible even without Miranda warnings.
Whether a person is in custody for Miranda purposes depends on whether the person is physically denied of [his] freedom of action in any significant way or is placed in a situation in which [he] reasonably believes that [his] freedom of action or movement is restricted by the interrogation. Moreover, the test for custodial interrogation does not depend upon the subjective intent of the law enforcement officer interrogator. Rather, the test focuses on whether the individual being interrogated reasonably believes [his] freedom of action is being restricted.
* * *
Said another way, police detentions become custodial when, under the totality of the circumstances, the conditions and/or duration of the detention become so coercive as to constitute the functional equivalent of arrest.
Thus, the ultimate inquiry for determining whether an individual is in custody for Miranda purposes is whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. Under the totality of the circumstances approach, the following factors are relevant to whether a detention has become so coercive as to constitute the functional equivalent of a formal arrest: the basis for the detention; its
length; its location; whether the suspect was transported against his...will, how far, and why; whether restraints were used; whether the law enforcement officer showed, threatened or used force; and the investigative methods employed to confirm or dispel suspicions.Williams , supra at 30-31 (some internal citations and quotation marks omitted).
Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinions of the Honorable Jonathan Mark, we conclude Appellant's issues merit no relief. The trial court opinions comprehensively discuss and properly dispose of the questions presented. ( See Opinion in Support of Order Denying Suppression Motion, filed October 20, 2015, at 1-2; Trial Court Opinion, filed October 26, 2017, at 14-27) (finding: (1) Detective Lenning credibly testified that police expressly informed Appellant he was not under arrest and was free to leave at any time; detective's testimony was supported by recording of interview; interview was voluntary, brief in duration, took place in hotel conference room, and Appellant left after interview; police did not threaten or coerce Appellant and did not arrest Appellant until seven days after interview; under these circumstances, Appellant was not subject to custodial interrogation requiring Miranda warnings; (2) detective conducted forensic analysis of Appellant's wife's cell phone and information extracted from cell phone; Commonwealth provided extraction report and related data to defense counsel during discovery; detective did not prepare expert report, so there was no expert report Commonwealth was obligated to provide to defense; Appellant did not file motion asking court to order expert to prepare report, per Pa.R.Crim.P. 573; given lack of defense motion and fact that Commonwealth gave defense complete cell phone extraction record, court did not abuse its discretion by allowing detective to testify as expert; (3) Appellant objected to admission of photograph of his son hooked up to medical apparatus based on general relevancy and undue prejudice grounds; photograph at issue is single depiction of how Appellant's son appeared in hospital; given facts and circumstances of case, Commonwealth's evidence, defense theories, and elements of crimes charged, photograph was relevant; photo demonstrated testimony and other exhibits which described Victim's medical condition, evaluation and treatment; photograph was not unduly inflammatory, and court properly overruled Appellant's objection as probative value outweighed any prejudicial effect; (4) Appellant's claim in concise statement stating only that court "abused its discretion at sentencing" is grossly insufficient to preserve sentencing challenge; moreover, court considered pre-sentence investigation ("PSI") report and all evidence prior to imposing sentence; court explained on record reasons for imposing aggravated range sentence; court imposed sentence consistent with protection of public, gravity of offense in relation to its impact on community, and rehabilitative needs of Appellant; court had benefit of PSI report, so court was aware of all relevant mitigating and aggravating factors; court did not abuse sentencing discretion). Accordingly, we affirm on the basis of the trial court's opinions.
The trial court refers to Victim's mother as Appellant's wife, but the record is unclear as to their marital status.
We depart only from the trial court's statement that the failure to consider mitigating factors when imposing an aggravated sentence does not raise a substantial question. See Commonwealth v. Felmlee , 828 A.2d 1105 (Pa.Super. 2003) (en banc) (holding substantial question exists where appellant alleges sentencing court imposed sentence in aggravated range without adequately considering mitigating factors).
Appellant also complains the court essentially "double counted" factors that are elements of the crimes at issue to aggravate Appellant's sentence. Nevertheless, Appellant did not preserve this claim at sentencing or in his post-sentence motion, so it is waived. See Commonwealth v. Griffin , 65 A.3d 932 (Pa.Super. 2013), appeal denied, 621 Pa. 682, 76 A.3d 538 (2013) (explaining objections to discretionary aspects of sentence are waived if they are not raised at sentencing hearing or in timely filed post-sentence motion).
Judgment of sentence affirmed.
Judge Dubow joins this memorandum.
Judge Kunselman concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/27/18
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