J-S55028-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

Appellant

v.

ANTONIO R. ORTIZ,

Appellee

: IN THE SUPERIOR COURT OF 

: PENNSYLVANIA

:

:

:

:

:

:

: 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 Mirandabased 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