Commonwealth v. Vazquez

1

COMMONWEALTH OF PENNSYLVANIA v. FELIPE VAZQUEZ Appellant COMMONWEALTH OF PENNSYLVANIA v. FELIPE VAZQUEZ Appellant

Nos. 1123 WDA 2021, 1124 WDA 2021

No. J-A29018-22

Superior Court of Pennsylvania

March 13, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered August 17, 2021 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0005098-2019

Appeal from the Judgment of Sentence Entered August 20, 2021 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0005102-2019

Joseph D. Seletyn, Esq.

BEFORE: BENDER, P.J.E., OLSON, J., and KUNSELMAN, J.

MEMORANDUM

OLSON J.

In this consolidated appeal, Appellant, Felipe Vazquez, appeals from the August 17, 2021 judgment of sentence entered in the Court of Common Pleas of Westmoreland County at trial court docket number CP-65-CR-0005098-2019 ("5098-CR-2019"), as well as the August 20, 2021 amended judgment of sentence entered in the Court of Common Pleas of Westmoreland County at trial court docket number CP-65-CR-0005102-2019 ("5102-CR-2019").^[1] A jury convicted Appellant of corruption of minor - defendant age 18 years and above (Count 1) and sexual abuse of a child - child pornography (Counts 2 to 11) at 5098-CR-2019.^[2] At 5102-CR-2019, the jury convicted Appellant of statutory sexual assault - complainant under the age of 16, defendant 11 or more years older than complainant (Count 1), unlawful contact with minor (sexual offenses) (Count 2), corruption of minor (sexual offenses) - defendant age 18 years and above (Count 3), and indecent assault - complainant less than 16 years old.^[3]The trial court imposed an aggregate sentence of two to four years' incarceration followed by two years' probation. We affirm.

The record demonstrates that, at 5102-CR-2019, Appellant was charged with the aforementioned criminal offenses based on a sexual encounter Appellant had on August 21, 2017 with a then-thirteen-year-old female victim in Westmoreland County, Pennsylvania.^[4] Appellant's criminal charges at 5098-CR-2019 stemmed from improper electronic communications Appellant had with the victim following the August 21, 2017 sexual encounter and while Appellant was located in Allegheny County, Pennsylvania.^[5]

On June 25, 2020, Appellant filed an omnibus pre-trial motion, seeking to, inter alia, suppress statements he made to the Pennsylvania State Police ("PSP") and the Florida Department of Law Enforcement ("FDLE")^[6] on September 17, 2019, on the grounds that, inter alia, Appellant did not receive Miranda^[7] warnings prior to interrogation. Omnibus Motion, 6/25/20, at § IV. At the July 9, 2020 hearing on Appellant's omnibus motion, the trial court permitted Appellant to orally amend his omnibus motion to include a challenge to a September 6, 2019 traffic stop. N.T., 7/9/20, at 4-6. As amended, Appellant's omnibus motion asserted that the traffic stop was pretextual, without justification to stop Appellant's vehicle, for the purpose of obtaining his local address in Pittsburgh, as well as his cellular telephone number, in violation of his constitutional rights. Id. An evidentiary hearing on Appellant's amended omnibus motion was conducted on July 9, 2020, and September 1, 2020. On January 14, 2021, the trial court denied Appellant's amended omnibus motion.

A jury trial was conducted on May 17, 2021, through May 20, 2021. On May 20, 2021, the jury found Appellant guilty of the aforementioned criminal offenses. On August 17, 2021, the trial court sentenced Appellant to an aggregate sentence of two to four years' incarceration followed by two years' probation.^[8] The trial court designated Appellant as a Tier III sex offender pursuant to Section 9799.14(d)(4) of the Sexual Offenders Registration and Notification Act ("SORNA")^[9] because he was convicted of statutory sexual assault. Appellant was ordered to comply with all SORNA registration requirements. Appellant was also ordered to pay restitution in the amount of $2,422.74, as well as the cost of prosecution. Finally, Appellant was ordered to have no contact with minors (except his own children), as well as the victim and her family. Appellant did not file a post-sentence motion.

On September 13, 2021, Appellant filed a notice of appeal. The trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), which Appellant filed on November 5, 2021.^[10] The trial court filed its Rule 1925(a) opinion on January 4, 2022.^[11]

Appellant raises the following issues for our review:

[1.] As a traffic stop was impermissibly prolonged to gather information necessary for the criminal investigation of Appellant and he was subsequently subjected to searches and custodial interrogations without being informed of Miranda warnings, was it error for the [trial] court to deny his suppression motions?

[2.] Was it prejudicial error to compel a black criminal defendant to unwillingly engage in a humiliating cross-gender performance of a woman's sexy walk before an all[-]white jury?

[3.] Where there was overwhelming uncontroverted evidence that [the victim], a minor female, lied about her age, was considered to be older by others, produced sexually explicit [photographs] and videos of herself that appeared to portray an adult[,] and the primary defense was mistake of age, was there sufficient evidence to support the guilty verdicts?

[4.] Where there was overwhelming uncontroverted evidence that [the victim], a minor female, lied about her age, was considered to be older by others, produced sexually explicit [photographs] and videos of herself that appeared to portray an adult[,] and the primary defense was mistake of age, were the guilty verdicts against the weight of the evidence?

Appellant's Brief at 3-4 (extraneous capitalization omitted).^[12]

Issue 1 - Omnibus Motion

In his first issue, Appellant challenges the trial court's denial of his amended omnibus motion that sought to suppress information Appellant provided during a traffic stop on September 6, 2019, as well as statements Appellant made to law enforcement on September 17, 2019, and items obtained through a subsequent search that same day of Appellant's residence pursuant to a warrant. Appellant's Brief at 41-53.

An appellate court's standard and scope of review of a challenge to the denial of a suppression motion is well-settled.

An appellate court's standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. [When] the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth 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 suppression court's factual findings are supported by the record, the appellate court is bound by those findings and may reverse only if the [suppression] court's legal conclusions are erroneous. Where the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on the appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the [suppression] court are subject to plenary review.

Commonwealth v. Hoppert, 39 A.3d 358, 361-[3]62 (Pa. Super. 2012)[, appeal denied, 57 A.3d 68 (Pa. 2012)].

Moreover, "appellate courts are limited to reviewing only the evidence presented at the suppression hearing when examining a ruling on a pre-trial motion to suppress." Commonwealth v. Stilo, 138 A.3d 33, 35-36 (Pa. Super. 2016)[.]

Commonwealth v. Wright, 224 A.3d 1104, 1108 (Pa. Super. 2019) (original brackets and ellipsis omitted), appeal denied, 237 A.3d 393 (Pa. 2020).

A. Traffic Stop

Here Appellant concedes the "only legitimate reason" for initiating a traffic stop of his vehicle on September 6, 2019, was that PSP Trooper Glenn Adams ("Trooper Adams") observed Appellant failing to use a traffic signal before initiating a turn of his vehicle in violation of the Motor Vehicle Code.^[13], ^[14] Appellant's Brief at 44-45. Appellant further concedes that Trooper Adams' request of Appellant to produce this driver's license and vehicle registration, as well as Trooper Adams' verification of those documents, was constitutionally permissible as part of the lawful traffic stop. Id. Appellant asserts, however, that upon returning the driver's license and vehicle registration to Appellant, a permissible "seizure" of Appellant for purpose of Fourth Amendment constitutional protections ended because Trooper Adams did not issue Appellant a traffic citation or provide him with a written warning of the traffic offense. Id. at 46. Appellant contends, Trooper Adams "impermissibly continued [Appellant's] seizure [by questioning Appellant] about his local domicile and personal telephone number." Id. Appellant argues that the information regarding his local address and telephone number was "not necessary to complete the mission of issuing a [citation] for the [traffic] violation" and, therefore, the questions soliciting this information violated his constitutional rights. Id. at 46-47. Appellant asserts that "[b]y restricting [Appellant's] liberty and freedom of movement for any length of time beyond that which was required to check his [driver's license and vehicle registration] and prepare a [citation,] no matter how briefly, [Trooper] Adams violated [Appellant's] fundamental right not to be subjected...