Opinion
371 MDA 2021 J-S35015-21
04-11-2022
COMMONWEALTH OF PENNSYLVANIA v. CARLOS MARTINEZ-DIAZ Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered June 8, 2018 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0005162-2017
BEFORE: OLSON, J., KUNSELMAN, J., and PELLEGRINI, J. [*]
MEMORANDUM
OLSON, J.
Appellant, Carlos Martinez-Diaz, appeals from the judgment of sentence entered on June 8, 2018 in the Criminal Division of the Court of Common Pleas of Berks County, as made final by the denial of his initial post-sentence motion on December 22, 2020, together with the denial of his supplemental post-sentence motion on February 16, 2021. We affirm.
In its opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court prepared a thorough summary of the historical facts established at trial in this case. See Trial Court Opinion, 5/19/21, at 3-19. We adopt the trial court's recitation of these facts and incorporate it herein as if set forth at length.
At the conclusion of trial on June 7, 2018, a jury found Appellant guilty of two counts of corrupt organizations (18 Pa.C.S.A. § 911(b)(2) and (b)(3)), one count of criminal use of a communication facility (18 Pa.C.S.A. § 7512(a)), two counts of conspiracy (18 Pa.C.S.A. 903(a)(1)), and six counts of delivery of a controlled substance (35 P.S. § 780-113(a)(30)). On June 8, 2018, the trial court ordered Appellant to serve 18½ to 60 years' imprisonment in a state correctional facility.
Thereafter, Appellant filed a pro se post-sentence motion on June 20, 2018. The trial court, however, did not adjudicate this submission, as counsel was still attached to the case. See Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993) ("[T]here is no right to hybrid representation either at trial or on appeal."). Appellant's sentence was thereafter amended on June 25, 2018 to include additional credit for time served before sentencing. Appellant's sentence was again amended on August 21, 2018 to reduce his maximum sentence by 10 years and to impose a new aggregate sentence of 18½ to 50 years. Appellant filed a pro se notice of appeal on November 9, 2018, which this Court quashed on June 6, 2019 as untimely.
While the untimely appeal remained pending before this Court, Appellant, on June 3, 2019, filed a petition for collateral relief pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. The PCRA court appointed counsel, who filed an amended petition on October 22, 2019, after this Court quashed Appellant's untimely appeal. The petition alleged that trial counsel was ineffective in failing to file a direct appeal and requested reinstatement of Appellant's post-sentence and direct appeal rights. After a hearing, the PCRA court denied the petition on January 29, 2020. Appellant appealed the dismissal of his collateral relief claims and, on November 30, 2020, this Court reinstated his rights to file post-sentence motions and pursue a direct appeal.
With the assistance of new counsel, Appellant filed a post-sentence motion on December 18, 2020. The trial court denied the motion on December 22, 2020 but gave Appellant 45 days to file a supplemental post-sentence motion. Appellant filed a supplemental post-sentence motion on February 5, 2021, which was denied on February 16, 2021. Appellant filed a notice of appeal on March 22, 2021 and, after extension, a concise statement of errors pursuant to Pa.R.A.P. 1925(b) on April 19, 2021. The trial court issued its Rule 1925(a) opinion on May 19, 2021.
The trial court docketed Appellant's March 22, 2021 notice of appeal on the 30th day following service of the order denying Appellant's supplemental post-sentence motion (February 18, 2021). Hence, we shall treat this appeal as timely filed. See Pa.R.A.P. 903(a) ("notice[s] of appeal ... shall be filed within 30 days after the entry of the order from which the appeal is taken"); Pa.R.A.P. 108(a) and (d) (where a post-sentence motion has been filed in a criminal case, any period of time computed under the appellate rules involving the date of entry of an order by a court or other government unit, the day of entry shall be the day the clerk of the court or the office of the government unit mails or delivers copies of the order to the parties); Pa.R.Crim.P. 720 (A)(2)(a) (notice of appeal is due within 30 days of order denying timely post-sentence motion).
Appellant's brief raises the following issues for our review.
[Did the trial court err] and abuse its discretion in overruling Appellant's objection to the introduction of documents with statements attributed to Appellant without presenting any direct witness to the alleged statements?
[Did the trial court] abuse its discretion at sentencing where the sentencing court relied on improper factors to justify an aggregate sentence that is tantamount to a life sentence and [where the court failed to] consider [Appellant's] rehabilitative needs?Appellant's Brief at 4.
In his first issue, Appellant argues that the admission of two exhibits offered by the Commonwealth to connect him to a telephone number used to make and/or forward incriminating calls and text messages violated his right to cross-examine the witnesses against him under the Confrontation Clause of the Sixth Amendment to the United States Constitution. See U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him"). Appellant asserts that the Confrontation clause barred admission of Exhibits 83 and 86 since the individuals who prepared those documents were not made available at trial and because he had no prior opportunity to cross-examine them. See Appellant's Brief at 19. Appellant also claims that the primary purpose of the challenged exhibits is to establish facts relevant to prosecution since the documents were created under circumstances that would lead a neutral witness reasonably to conclude that the materials would be available for use at a later trial. See id., quoting Commonwealth v. Brown, 139 A.3d 208, 212 (Pa. Super. 2016). Appellant observes that the challenged exhibits constituted testimonial statements since "it is common practice for prosecutors to use preliminary arraignment and other such paperwork to establish a criminal defendant's contact information where such information is potentially incriminating." Appellant's Brief at 19-20. We conclude that this claim merits no relief.
Commonwealth's Exhibit 83 ("Exhibit 83") consists of Appellant's arraignment information sheet, which was completed following an exchange between Appellant and a magistrate district judge during Appellant's preliminary arraignment. See N.T. Trial, 6/5/18, at 9-14. The Commonwealth presented Exhibit 83 at trial without witness testimony pertaining to its creation after the trial court agreed, at the Commonwealth's request, to take judicial notice of the document. See id. at 11; see also Trial Court Opinion, 5/19/21, at 26-28, citing Pa.R.E. 201(b)(2) (permitting judicial notice of facts that "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned"). Commonwealth's Exhibit 86 ("Exhibit 86") consists of Appellant's prisoner information report, which attributed a telephone number targeted during the relevant police investigation to Appellant. See N.T. Trial, 6/7/18, at 285 and 400. At trial, the Commonwealth presented the testimony of Michael Mullen, a supervisor of pretrial services at Berks County Prison, to address the nature of the information included within an inmate information report, the process by which such reports are prepared, and confirmation that information used to prepare such reports comes from inmates directly. See id. at 283. Mullen neither prepared nor reviewed Appellant's intake report but stated that Edward Hartzell, a correctional officer at Berks County Prison, created Appellant's prisoner intake form. See id. at 401. Hartzell was not available to testify at Appellant's trial and there is no indication in the certified record that defense counsel had an opportunity to cross-examine Hartzell.
Both the trial court and the Commonwealth contend that Appellant waived appellate review of his challenge to Exhibits 83 and 86 since he articulated different objections at trial. See Trial Court Opinion, 5/19/21, at 44; Commonwealth's Brief at 14-15. After careful review of the certified record, we disagree. While it is correct that defense counsel offered several reasons to reject admission of Exhibits 83 and 86, he relied heavily, if not primarily, upon the claim that these materials were unreliable in linking Appellant to the targeted telephone number, a contention in which he emphasized the need to confront the creators of the respective forms. See e.g. N.T. Trial, 6/5/18, at 11 (defense counsel asking whether Commonwealth would subpoena magistrate who prepared Appellant's arraignment information form); see also id. at 400-401 (noting that correctional officer who performed Appellant's prison intake interview would not be available for defense examination). While it would be preferable if counsel had expressly invoked the Confrontation Clause when he raised his evidentiary objections, it is evident that he placed the need to examine the declarants before the trial court for its consideration. Under these circumstances, we conclude that Appellant adequately preserved his claim for appellate review.
We ordinarily review a trial court's evidentiary rulings for an abuse of discretion; however, whether the admission of evidence violates an appellant's rights under the Confrontation Clause is a question of law subject to our plenary, de novo review. In re N.C. , 105 A.3d 1199, 1210 (Pa. 2014); Commonwealth v. Cheng Jie Lu, 223 A.3d 260, 264 (Pa. Super. 2019); Commonwealth v. Williams, 103 A.3d 354, 358 (Pa. Super. 2014).
The Confrontation Clause bars admission of out-of-court testimonial statements of an unavailable witness when the defendant has not had an opportunity for cross-examination. Michigan v. Bryant, 562 U.S. 344, 354 (2011); Davis v. Washington, 547 U.S. 813, 821 (2006); Commonwealth v. Allshouse, 36 A.3d 163, 171 (Pa. 2012); Cheng Jie Lu, 223 A.3d at 264. The preclusive sweep of the Confrontation Clause extends only to testimonial statements and does not prohibit out-of-court statements which are nontestimonial. Bryant, 562 U.S. at 354; Davis, 547 U.S. at 821; Allshouse, 36 A.3d at 173.
The law in Pennsylvania is reasonably clear that statements are nontestimonial when made during police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable the police to meet an ongoing emergency. See Allshouse, 36 A.3d at 172, quoting Davis, 547 U.S. at 822. Statements are deemed testimonial, however, when circumstances objectively indicate that no ongoing emergency exists and that the primary purpose of interrogation is to prove or disprove past events with potential relevance to subsequent criminal prosecution. See Allshouse, 36 A.3d at 172, quoting Davis, 547 U.S. at 822.
In considering the testimonial nature of a statement, the foregoing decisions (and much, if not all, of Pennsylvania appellate case law addressing the Confrontation Clause) focus upon police interrogation, the primary purpose of such interrogations, and whether an ongoing public safety emergency exists. These precedents do not consider whether prison intake forms, and similar administrative materials such as preliminary arraignment forms, fall within the category of nontestimonial statements. In addition, our own research efforts have been unsuccessful in locating Pennsylvania appellate authority relevant to the precise issue before us.
Nevertheless, at least one federal district court has considered and rejected the claim that admission of administrative materials like prison intake forms violates a criminal defendant's rights under the Confrontation Clause. That court offered the following rationale for its conclusion.
In Crawford v. Washington, 541 U.S. 36, 68 (2004), the [United States] Supreme Court reiterated that[, ] "[w]here testimonial evidence is at issue ..., the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." As such, a Confrontation Clause violation occurs where a court allows the admission of "testimonial" statements against a criminal defendant who did not have an opportunity to cross-examine the witness. Id. The [United States] Supreme Court in Crawford did not, however, give lower courts a precise definition of the term "testimonial." See Crawford, 541 U.S. at 68. According to Crawford, in its broadest formulation, testimonial statements are "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Crawford, 541 U.S. at 52 (quotation marks and citation omitted).
Since Crawford, the United States Supreme Court has continually refined and clarified the meaning of "testimonial," but the [] Court has never specifically addressed the situation presented by [defendant's claim that the admission of a prison intake form violated his rights under the Confrontation Clause]. In Melendez-Diaz v. Massachusetts, [557 U.S. 305 (2009)] the [Court] concluded that forensic lab certificates are testimonial for the purpose of Crawford, but nonetheless emphasized the following:
Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because - having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial - they are not testimonial.Needham v. Whitener, No. 5:13-cv-104-FDW, 2013 WL 5636746, *5-6 (W.D. N.C. Oct. 15, 2013), quoting Melendez-Diaz, 557 U.S. at 324.
We conclude that the content of Exhibits 83 and 86 were not "testimonial" under Crawford's general definition of that term, as both the arraignment information form and the prisoner information form were created for routine administrative purposes, i.e., the collection of contact information and the acquisition of prison census and identification data. These administrative materials, which appear to have been created in the ordinary course of administration by a magistrate judge and a correctional officer, were not created by investigative law enforcement personnel in anticipation of later use at a criminal trial to prove or disprove facts. Compare Melendez-Diaz, 557 U.S. at 309-311 (forensic lab certificates fell within core class of testimonial statements covered by the Confrontation Clause since they were essentially synonymous with affidavits, created for the sole purpose of establishing the composition, quality, and net weight of a submitted drug sample, and, as such, prepared under circumstances which would lead an objective witness reasonably to believe that the certificates would be available for use at a later trial). Moreover, we reach this conclusion despite the Commonwealth's use of Exhibits 83 and 86 to connect Appellant to a targeted telephone number at trial since Crawford's definition of "testimonial" turns more so on the anticipated use and primary purpose of a particular statement, not the ultimate or actual use to which the statement is put.
Our decision to treat routine, biographical forms prepared for administrative purposes as nontestimonial statements receives support from appellate cases that address the scope of the Fifth Amendment's right against self-incrimination and conclude that biographical inquiries are not ordinarily undertaken with the expectation that they will elicit incriminating responses. Pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), a criminal defendant is entitled to a recitation of his rights against self-incrimination prior to custodial interrogation. Nevertheless, while statements obtained in violation of Miranda are subject to suppression, a statement uttered in a custodial setting is not suppressed when it constitutes a response to biographical questioning. See Commonwealth v. Garvin, 50 A.3d 694, 698 (Pa. Super. 2012). "Generally speaking, [] information such as name, height, weight, residence, occupation, etc. is not the kind of information which requires Miranda warnings since it is not information generally considered as part of an interrogation." Garvin, 50 A.3d at 698, quoting Commonwealth v. Jasper, 587 A.2d 705, 708-709 (Pa. 1991). Such questions are not "calculated to, expected to, or likely to elicit an incriminating response, or ... asked with [the] intent to extract or an expectation of eliciting an incriminating [response]." Garvin, 50 A.3d at 698 (citations omitted). Moreover, we have held that there is no requirement that a suspect be given Miranda warnings where the police seek only biographical, general information for completion of prison intake forms. See Garvin, 50 A.3d at 699, citing Commonwealth v. Friedman, 602 A.2d 371, 378 (Pa. Super. 1992). Because biographical intake materials such as Exhibits 83 and 86 are generated for administrative purposes, and are not calculated to elicit incriminating responses, they are not made under circumstances which would lead an objective witness reasonably to believe that the materials would be available for use at a later trial.
Because Exhibits 83 and 86 do not trigger Confrontation Clause protections under the circumstances in this case, we hold that Appellant is not entitled to relief.
In his second claim, Appellant forwards a challenge to the discretionary aspects of his sentence, arguing that the trial court abused its discretion in considering improper factors, failing to consider Appellant's rehabilitative needs and mitigating factors, and imposing an excessive aggregate punishment. This claim is devoid of merit.
We have carefully reviewed the certified record, the submissions of the parties, and the thorough discussion of Appellant's discretionary sentencing challenge authored by the trial court. We are satisfied that the trial court has adequately and accurately addressed each of the claims raised by Appellant. As such, we reject Appellant's discretionary sentencing claim for the reasons set forth by the trial court and adopt is rationale as our own. See Trial Court Opinion, 5/19/21, at 30-40. Since we have adopted a portion of the trial court's opinion as our own, we direct the parties to attach a copy of the trial court's opinion to all future filings pertaining to the disposition of this appeal.
Judgment of sentence affirmed.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.