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* Retired Senior Judge Assigned to the Superior Cour t. NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. JUAN MIGUEL SERRANO-TORRES, Appellant No. 1586 MDA 2013

Appeal from the Judgment of Sentence of August 7 , 2013 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP

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- CR -0002943-2012 BEFORE: FORD ELLIOTT, P.J.E., OLSON and STRASSBURGE R,* JJ. MEMORANDUM BY OLSON, J.: FILED JULY 30, 2014 Appellant, Juan Miguel Serrano-Torres, appeals from the judgment of sentence entered on August 7, 2013. We affirm. The factual and procedural history of this case is as foll ows. On April 12, 2012, Appellant and Josue Figueroa (“Figueroa”) w ere loitering in a courtyard. A vehicle occupied by the victim and another individual soon pulled up near the courtyard. The victim and Figuer oa then engaged in a drug transaction. While the victim was walking away, Appellant shot him in the back. Figueroa then searched the victim’s pockets an d removed items

therefrom. Eventually, Figueroa was arrested for suspicion of commit ting the above described crime. During questioning by police, Fi gueroa implicated

several individuals who turned out to not be involved . Eventually, FigueroaJ-A14024- 14

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implicated Appellant as the triggerman. Appellant wa s arrested on April 19, 2012 at approximately 7:15 a.m. Appellant initiall y invoked his right to counsel and officers ceased their interviews; however, at approximately 6:45 p.m. that same day, he waived his right to counsel. Po lice then played Figueroa’s recorded statement to Appellant. After hea ring a portion of Figueroa’s statement, Appellant confes sed to killing the victim. On July 31, 2012, Appellant was charged via criminal i nformation with criminal homicide, 1 robbery, 2 criminal conspiracy, 3 and carrying a firearm

without a license. 4 On July 23, 2013, Appellant filed an omnibus pre-tri a l motion which included a motion to suppress the statement he gave to police. On August 5, 2013, a suppression hearing was held at th e conclusion of which the trial court denied Appellant’s motion to sup press. On August 7, 2013, a jury found Appellant guilty of second-degree murder, 5 robbery, criminal conspiracy, and carrying a firearm without a l icense. The trial court

1 18 Pa.C.S.A. § 2501.

2 18 Pa.C.S.A. § 3701.

3 18 Pa.C.S.A. § 903.

4 18 Pa.C.S.A. § 6106.

5 18 Pa.C.S.A. § 2502(b).J-A14024- 14

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sentenced Appellant to an aggregate term of life impr isonment without the possibility of parole. This timely appeal followed. 6 Appellant raises two issues for our review:

1. Whether the trial court erred when it denied Appella nt’s pre[

- ] trial motion to suppress his statements?

2. Whether the evidence presented was insufficient as a matt er of law to enable t[he] jury to convict Appellant of t he charges in the above captioned case? Appellant’s Brief at 6. In his first issue, Appellant contends that the trial co urt erred by denying his motion to suppress his statement given to po lice. He argues that “the duration and circumstances of Appellant’s de tention prior to his confession rendered his subsequent waiver of Miranda rights invalid and his confession involuntary.” Appellant’s Brief at 17. “In addressing a challenge to a trial court’s denial of a suppression motion, we are limited to determining whether the f actual findings are supported by the record and whether the legal conclusion s drawn from those

facts are correct.” Commonwealth v. Scarborough , 89 A.3d 679, 683

6 On September 5, 2013, the trial court ordered Appell ant to file a concise statement of errors complained of on appeal (“concise sta tement”). See Pa.R.A.P. 1925(b). On September 10, 2013, Appellan t filed his concise statement. On November 4, 2013, the trial court issue d its Rule 1925(a) opinion. Both issues raised on appeal were included in Appellant’s concise statement.J-A14024- 14

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(Pa. Super. 2014) (citation omitted). 7 “[O]ur scope of review is limited to the factual findings and legal conclusions of the [trial ] court.” In re L.J. , 79 A.3d 1073, 1080 (Pa. 2013) (citation omitted). “We m ay consider only the

Commonwealth’s evidence and so much of the evidence for the defense as

remains uncontradicted when read in the context of the record as a whole.” Commonwealth v. Gary , 91 A.3d 102, 106 (Pa. 2014) (citation omitted).

Under Miranda v. Arizona , 384 U.S. 436 (1966), a suspect has a right to have an attorney present during custodial in terrogation. Prior to any custodial interrogation, the police must inform a suspect of his rights under

Miranda , including the right to have an attorney pres ent. “[O]nce a suspect asserts his Fifth Amendment right to counsel, not only must the current interrogation cease, but he may not be approached for further interrogation until counsel has been made available to him, unless he himself initiates

further co nversation with police.” Commonwealth v. Keaton , 45 A.3d 1050, 1067 (Pa. 2012) (citation omitted).

7 We remind the trial court of the mandatory nature of Pennsylvania Rule of Criminal Procedure 581(I), which provides that: At the conclusion of the [suppression] hearing, the judge shall enter on the record a statement of findings of fact a nd conclusions of law as to whether the evidence was obtained in violation of the defendant’s rights, or in violation of these rules or any statute, and shall make an order granting or d enying the relief sought. Pa.R.Crim.P. 581(I). A simple statement that the mo tion to suppress is denied is not sufficient to satisfy the Rule 581(I) r equirement.J-A14024- 14

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If a suspect re-initiates a conversation with police and su bsequently waives his right to counsel, we then examine whether th at waiver was knowing and voluntary. As we have explained: In determining whether a defendant’s waiver of his Miranda rights is valid, a trial court must consider: (1) whether the waiver was voluntary, in the sense that the waiver was not the result of governmental pressure; and (2) whether the w aiver was knowing and intelligent, in the sense that it was made with full comprehension of both the nature of the right be ing abandoned and the consequence of that choice. The Commonwealth bears the burden of establishing that a defendant knowingly and voluntarily waived his Miranda rights.

Commonwealth v. Patterson , 91 A.3d 55, 76 (Pa. 2014) (internal citations omitted). Our Supreme Court has set forth the following numerous factors that should be considered under a totality of the circumstances test to determine whether a statement was freely and voluntar ily made: the duration and means of interrogation, including whether questioning was repeated, prolonged, or accompanied by physical abuse or threats thereof; the length of the a ccused’s detention prior to the confession; whether the accused was advised of his or her constitutional rights; the attitud e exhibited by the police during the interrogation; the accused’s ph ysical and psychological state, including whether he or she was injur ed, ill, drugged, or intoxicated; the conditions attendant to t he detention, including whether the accused was deprived of food, drink, sleep, or medical attention; the age, education , and intelligence of the accused; the experience of the accuse d with law enforcement and the criminal justice system; and any other factors which might serve to drain one’s powers of resista nce to suggestion and coercion. Commonwealth v. Bryant , 67 A.3d 716, 724 (Pa. 2013) (citation omitted).J-A14024- 14

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Appellant does not argue that police re-initiated th e conversation with him. Instead, he argues that the time that elapsed b etween his arrest and his confession was unreasonably long. Appellant contends t hat he should have been brought before a judicial officer for arra ignment in a more expedient manner. He implicitly contends that if he were arraigned promptly he would not have confessed to the murder. Appellant also alleges that he was ingesting illegal narcotics while in custody and that he had not slept the night before. Thus, he argues that the totality of t he circumstances show he did not voluntarily waive his Miranda rights.

We will evaluate the Bryant factors seriatim. As to the duration and means of interrogation, the total duration of the i nterrogation prior to Appellant waiving his Miranda rights was only a few minutes. See N.T. 8/5/13, at 68, 97. The interrogation occurred in a l arge room. See id. at 26. There is no evidence that there was physical viole nce, or threats thereof. There was also no evidence of other improper interrogation techniques. Thus, the first Bryant factor weighs in favor of a finding of

voluntariness. As to the length of Appellant’s detention, Appellant was in custody approximately 11.5 hours prior to his confession. Betwe en 1977 and 2004, our Supreme Court adhered to a brightline six-hour r ule. See Commonwealth v. Davenport , 370 A.2d 301, 306 (Pa. 1977), overruled

Commonwealth v. Perez , 845 A.2d 779, 787 (Pa. 2004). Under that rule,J-A14024- 14

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any statement given to police more than six hours after arrest, and before arraignment, was per se inadmissible. Davenport , 370 A.2d at 306. However, in Perez

our Supreme Court determined that the per se rule was not appropriate and reverted to a totality of the ci rcumstances test, which we apply in this case. Perez , 845 A.3d at 787. Nonetheless, the six-hour rule still provides a good ba seline from which to evaluate the length of a defendant’s cust ody. In this case, the time between Appellant’s arrest and his waiver and subsequent confession was almost twice that length

– 11.5 hours. Thus, it is obvious that this factor weighs against a finding that Appellant’s waiver was voluntary. However, the weight of this factor is not as significant as it ma y appear. During the course of Appellant’s detention, and prior to his arraignment, the police took steps to corroborate Figu eroa’s statement that Appellant was the triggerman in the murder. These ste ps were necessary because Figueroa had implicated several other individua ls in the murder prior to implicating Appellant. After brief periods of investigation, police

were able to ascertain that those individuals were not involved in the murder. Thus, police had reason to believe that Figue roa was falsely implicating Appellant.

In Commonwealth v. Perez , 760 A.2d 873 (Pa. Super. 2000),

affirmed , 845 A.2d 779 (Pa. 2004), this Court recognized tha t a police investigation which may exonerate a defendant may ca use him to beJ-A14024- 14

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detained for longer than six hours without being arr aigned. Specifically, we stated that “[n]ecessary delay [between arrest and preli minary arraignment] can reasonably relate to . . . limited preliminary in vestigation into [a defendant’s] co nnection with the crime for which he was arrested, especia lly when it is directed to possible exculpation of the one arrested.” Id. at 875, quoting Adams v. United States , 399 F.2d 574, 579 (D.C. Cir. 1968) (Burger, J. concurring).

The facts in the case sub judice are similar to those in

Commonwealth v. Seilhamer , 862 A.2d 1263 (Pa. Super. 2004). In

Seilhamer , approximately seven hours elapsed between the initia l contact between the police and the defendant and the defenda nt’s waiver of her

Miranda rights. The police had sufficient probable cause to arr aign the defendant two hours after the initial contact; however , they delayed arraignment because they were seeking other witnesses an d evidence. Id. at 1269-1270. Under the totality of the circumstance s, including three readings of defendant’s Miranda rights and a delay attributed to further police investigation, we concluded her waiver was volunt ary. Id. at 1270. Although the time between Appellant’s arrest and his w aiver was somewhat longer, the rationale employed in Seilhamer and Perez

offers persuasive force. Thus, although we conclude that the second Bryant factor weighs against a finding of voluntariness, the weight affor ded to that factor is somewhat diminished because of the reason for the delay.J-A14024- 14

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As to whether Appellant was advised of his constitution al rights, the record reflects that Appellant was advised of his Miranda rights on several occasions. Immediately prior to his confession, he was read his rights orally and signed a form, which outlined his rights in Spanish. N.T., 8/5/13, at 92, 97. Thus, the third Bryant factor weighs in favor of a finding of

voluntariness. As to Appellant’s physical and psychological state, the trial court found that Appellant was not under the influence of drugs or alcohol. See Trial Court Opinion, 11/4/13, at 20. This finding of fact is supported by the record. The police officer that was interrogating Appe llant testified that Appellant did not appear to be under the influence o f alcohol or drugs. N.T., 8/5/13, at 132. Although Appellant testified that he was under the influence of drugs and alcohol, the trial court made a credibilit y determination. See Trial Court Opinion, 11/4/13, at 20. We may not ov erturn this credibility

determination with the record before us. Furthermore , there was no evidence that Appellant was injured or ill. Thus, the fourth Bryant factor weighs in favor of a finding of voluntariness. As to the conditions attendant to the detention, Appel lant admitted that the police offered him food and coffee during th e course of his

detention. See N.T., 8/5/13, at 172. There is no evidence that the police ever denied Appellant a request for food, drink, med ical care, or use of the restroom. Although he may not have slept the night b efore, Appellant wasJ-A14024- 14

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given a chance to sleep while in detention. Trial C ourt Opinion, 11/4/13, at 21. Thus, the fifth Bryant factor weighs in favor of a finding of

voluntariness. As to Appellant’s age, education, and intelligence, the detective that questioned Appellant testified that he did not have a ny educational problems or low level of intelligence. N.T., 8/5/13, at 148. Appellant was 33 years old at the time of his waiver. Thus, the sixth Bryant factor weighs in favor of a finding of voluntariness. There was no evidence presented with respect to Appellan t’s familiarity with the criminal justice system. As such, the seventh Bryant factor is neutral. The parties do not contend, nor do we find evidence in the record,

that there were non-enumerated factors that the trial court should have considered in determining whether Appellant’s waiver w as voluntary. Although one of the seven Bryant factors weighs against a finding that Appellant’s waiver was voluntary, five factors wei gh in favor of a finding that his waiver was voluntary. There is little doubt that the one factor that weighs in favor of Appellant is significant. However, for the reasons se t forth above, the time Appellant was in custody is mit igated because the actions taken by the police had the possibility of exon erating Appellant. Furthermore, one of the factors that weighs in favor o f the Commonwealth,

i.e. , how often and by what means Appellant was given h is constitutional rights, weighs heavily in favor of a finding that Ap pellant’s waiver wasJ-A14024- 14

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voluntary. When combined with the other four factors that weigh in favor of the Commonwealth, we conclude that those factors outweig h the length of Appellant’s custody prior to his waiver. Accordingly, we conclude that the trial court properly denied Appellant’s motion to su ppress his confession. In his second issue, Appellant contends that the evidence was insufficient to convict him of seco nd -degree murder, robbery, and conspiracy. “Whether sufficient evidence exists to suppor t the verdict is a question of law; thus, our standard of review is de novo and our scope of review is plenary.” Patterson , 91 A.3d at 66 (citation omitted). In

revi ewing a sufficiency of the evidence claim, we must deter mine “whether viewing all the evidence admitted at trial in the li ght most favorable to the [Commonwealth], there is sufficient evidence to enable the fact-finder to find every element of the crime be yond a reasonable doubt.” Commonwealth v. Kearney , 92 A.3d 51, 64 (Pa. Super. 2014) (citation omitted). “Additionally, the evidence at trial need not preclude every possibility of innocence . . . . [T]he fact-finder is fre e to believe all, part[,] or

non e of the evidence.” Commonwealth v. Trinidad , 90 A.3d 721, 728 (Pa. Super. 2014) (citation omitted). “A criminal homicide constitutes murder of the second degr ee when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.” 18 Pa.C.S.A. § 2502( b). In this case, the underlying felony was the robbery. “A person is guilty of robbery if, in theJ-A14024- 14

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course of committing a theft, he[ ] inflicts serious bodi ly injury upon another[.]” 18 Pa.C.S.A. § 3701(a)(1)(i). “A person is guilty of conspiracy with another person or persons to commit a crime if wit h the intent of promoting or facilitating its commission he[ ] agrees wi th such other person or persons that they or one or more of them will enga ge in conduct which constitutes such crime[.]” 18 Pa.C.S.A. § 903(a)(1). Appellant argues that the Commonwealth did not prove “Appellant intended to steal or knew Figueroa intended to steal the drugs from the victim during the transaction.” Appellant’s Brief at 25 . However, the evidence was overwhelming that Appellant and Figueroa planned the robbery well in advance. Veronica Ortiz testified that, on th e day of the murder, she heard Appellant and Figueroa “saying they were go[ing to] rob somebody. They needed some money.” N.T., 8/6/13, at 83. Afte r the murder, Appellant admitted to several individuals that he ha d robbed the victim. See

id. at 103 (statement to Wanda Baez-Lugo); id. at 136 (statement to Jacqueline Arroyo); id. at 149 (statement to Elizabeth Lopez). If the jury believed this evidence, it could reasonably find that A ppellant possessed the requisite intent for robbery, and thus also second-degre e murder and conspiracy. Accordingly, viewed in the light most favora ble to the Commonwealth, the evidence was sufficient to support t he jury’s verdict. Judgment of sentence affirmed.J-A14024- 14

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 7/30/2014