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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOSE PASTRANA, :
:
Appellant : No. 2508 EDA 2013
Appeal from the Judgment of Sentence August 30, 2013,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0003183-2013
BEFORE: DONOHUE, MUNDY and STABILE, JJ.
MEMORANDUM BY DONOHUE, J.: FILED OCTOBER 03, 2014
entered following his convictions of attempted theft, receiving stolen
property, possession of an instrument of crime, and criminal mischief.1 We
affirm.
suppress statements made to the police. In reviewing the denial of a
suppression motion, our review 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, 73 A.3d
609, 613 (Pa. Super. 2013) (citation omitted). We may reverse only if the
legal conclusions drawn therefrom are in error. Id. Additionally, since the
1
18 Pa.C.S.A. §§ 901, 3921, 3925, 907, 3304.
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Commonwealth prevailed in 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. Id.
The evidence presented at the suppression hearing, when considered
in the light most favorable to the Commonwealth, establishes that at
approximately 12:40 in the morning on February 20, 2013, Officer Michael
James received a radio call reporting that a Hispanic male wearing a black
knit cap was attempting to steal a white truck that was parked on the side of
Gonzalez Auto Sales, in the area of Third and Allegheny Avenues in
Philadelphia. N.T., 8/14/13, at 7-9. When he arrived at that location,
Officer James observed Pastrana exiting the passenger-side door of a white
pick-up truck that was parked next to Gonzalez Auto Sales. Id. at 8. The
truck was parked close to a fence, such that a person could not enter or exit
through the driver-side door. Id. at 14. As Pastrana exited the truck,
Id. at 10.
-side window was
broken and glass was on the ground around the vehicle. Id. at 9. A
hammer was on the floor of the driver-side seat and the ignition was
damaged. Id. Officer James then placed Pastrana in the back seat of his
police vehicle while he and another officer attempted to contact the owner of
Gonzalez Auto Sales. Id. at 10. The police officers and Pastrana would
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remain at the scene for between 30 and 45 minutes while the officers tried
to contact the owner of Gonzalez Auto Sales. During that time, Pastrana
remained in the back of the police vehicle and Officer James asked him
for the truck; whether he knew the owner of the truck; and why the window
was broken. Id. at 13. Offi
not [Pastrana] was attempting to steal the vehicle or if the window was
Id.
indow and told
Pastrana to take the truck, and that he was attempting to start it with the
hammer and screwdriver. Id. at 11-12. At no time during this questioning
was Pastrana given his Miranda2 rights. Id. at 14-15. Once located, the
owner of Gonzalez Auto Sales stated that he owned the truck; he did not
know Pastrana; he did not give Pastrana permission to use the truck; and
that the truck was secure and in good condition when he left it earlier that
evening. Id. at 29.
ssion motion, the trial court found that
Miranda warnings were required. See N.T., 8/14/13, at 20-23; Trial Court
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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Opinion, 1/15/14, at 4-5.3 The case proceeded immediately to a bench trial,
following which the trial court found Pastrana guilty of the above-mentioned
offenses. The trial court subsequently sentenced him to two years of
probation. This timely appeal followed.
Pastrana argues that the trial court erred in its determination that
Miranda warnings were required.4
administer Miranda
Commonwealth v. Baker, 24 A.3d 1006, 1019 (Pa. Super. 2011), aff'd, 78
know that their words or actions are reasonably likely to elicit an
Commonwealth v. Luster, 71
A.3d 1029, 1051 (Pa. Super. 2013), appeal denied, 83 A.3d 414 (Pa. 2013)
(citation omitted).
3
at the time of the suppression motion, seem to indicate that it concluded
both that Pastrana was neither in custody nor subject to interrogation during
his interaction with Officer James. N.T., 8/14/13, at 20-23. However, in
authoring its opinion pursuant to Pa.R.A.P. 1925(a), the trial court concedes
that Pastrana was in custody and explains its decision only in terms of its
conclusion that the questioning did not amount to interrogation. Trial Court
Opinion, 1/15/14, at 4-5.
4
In his appellate brief, Pastrana also includes argument to refute the trial
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concession that Pastrana was subjected to a custodial detention, we limit our
ument regarding the nature of the questioning.
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In light of this standard, we conclude that the questions Officer James
posed to Pastrana while he was in the back of the police vehicle do amount
to an interrogation. By his own admission, Officer James asked Pastrana
toward determining whether Pastrana, who the police encountered under
suspicious circumstances at the scene of an attempted theft, and who fit the
description of the person reported to be perpetrating the theft, owned the
vehicle or had permission to use the vehicle. Officer James was asking
Pastrana questions that called for possibly incriminating answers. We
conclude, therefore, that the questions were reasonably likely to elicit an
incriminating response. Luster, 71 A.3d at 1051.
The trial court analogized the present case to Commonwealth v.
Grimes, 648 A.2d 538 (Pa. Super. 1994). Trial Court Opinion, 1/15/14, at
5. We do not agree that Grimes is analogous to the present situation. In
Grimes, police officers heard engine revving that continued for
approximately five minutes. The officers decided to investigate. They
door and asked Grimes what he was doing. Before Grimes could answer, the
officer smelled the
watery eyes and flushed complexion. At that point, the officer asked Grimes
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to exit his vehicle and asked him if he had been drinking. When he exited
lice observed various
indicia of drug use in the car. Grimes was ultimately charged with and
convicted of possession of a controlled substance, possession of drug
paraphernalia and driving while under the influence of alcohol and a
controlled substance.
On collateral appeal, Grimes argued that his counsel was ineffective for
not seeking suppression of his statements and items found in his car
because the police did not Mirandize him before questioning him. We
Grimes, 648 A.2d at 541. Of
importance, the facts indicate that Grimes was not in custody at the time the
officer questioned him, as we found no evidence of coercive circumstances.5
In contrast, in the present case, Pastrana was in a custodial detention when
Officer James questioned him. We do not agree that this case is controlled
by, or analogous to, Grimes.
Although the trial court erred, that does not end our inquiry. Not all
erroneously admitted evidence requires reversal as, under proper
5
Rather, Grimes was subjected to an investigative detention when
questioned by the police. Commonwealth v. Clemens, 66 A.3d 373, 378-
79 (Pa. Super. 2013) (holding that an investigative detention subjects a
suspect to a stop and a period of detention, but does not involve such
coercive conditions as to constitute the functional equivalent of an arrest.).
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appellate review designed to advance judicial economy by obviating the
necessity for a retrial where the appellate court is convinced that a trial error
Commonwealth v. Noel, 53
A.3d 848, 857 (Pa. Super. 2012).
The Commonwealth satisfies its burden to establish
the harmlessness of an error by showing that: (1)
the error did not prejudice the defendant or the
prejudice was de minimus; or (2) the erroneously
admitted evidence was merely cumulative of other
untainted evidence which was substantially similar to
the erroneously admitted evidence; or (3) the
properly admitted and uncontradicted evidence of
guilt was so overwhelming and the prejudicial effect
of the error so insignificant by comparison that the
error could not have contributed to the verdict.
Commonwealth v. Schoff, 911 A.2d 147, 158 (Pa. Super. 2006).
The incriminating t
attempting to start the truck with the hammer and screwdriver. The
properly admitted evidence, as detailed above, established that the police
officers responded to a radio call indicating a Hispanic male attempting to
steal a white truck at a particular location. When they arrived at that
location, they observed a white truck with a broken window and Pastrana
exiting the truck as a screwdriver fell from his possession. The officers
nition had been tampered with and that there
was a hammer on the floor of the driver side. We conclude that this
evidence also was sufficient to establish that Pastrana was trying to start the
truck with the tools found on his person and in the vehicle he was observed
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other untainted evidence which was substantially similar to the erroneously
admitted evidence[,] and therefore, harmless error. Schoff, 911 A.2d at
158. Accordingly
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/3/2014
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