J-S57009-14

NON-PRECEDENTIAL DECISION             SEE SUPERIOR COURT I.O.P 65.37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

                       -
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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