J. A14001/14

NON-PRECEDENTIAL DECISION             SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   v.                   :
                                        :
MIGUEL FIGUEROA-NOVOA,                  :         No. 1494 MDA 2013
                                        :
                        Appellant       :


           Appeal from the Judgment of Sentence, May 1, 2013,
             in the Court of Common Pleas of Dauphin County
             Criminal Division at No. CP-22-CR-0000931-2011


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:         FILED AUGUST 13, 2014

      Following a jury trial, Miguel Figueroa-Novoa was convicted of first

degree murder, attempted murder, and carrying a firearm without a license.



      On December 22, 2010, at approximately 6:00 a.m., appellant went to

the apartment where his estranged girlfriend, Nicole Berrios, lived with their

son and her mother.     Appellant shot and killed Berrios and also shot and

injured her mother. Prior to walking out of the apartment, appellant turned

the gun on himself, shooting himself in the mouth. Appellant drove himself

roughly two miles to the emergency room at Harrisburg Hospital. Appellant

claimed he was intoxicated and accidently shot and killed Berrios.

      Following his arrest, appellant filed a motion to suppress, which was

denied. A jury trial was held from April 22, 2013 through April 30, 2013.


* Retired Senior Judge assigned to the Superior Court.
J. A14001/14

Thereafter, he was found guilty of the aforementioned crimes.           On May 1,

2013, he was sentenced to life imprisonment, a consecutive term of 20 to

40                      n for attempted murder, and a concurrent term of

3½                                                                      -sentence

motion, which was denied on July 17, 2013.         Notice of appeal was timely

filed August 16, 2013. Appellant complied with the trial court

a concise statement of errors complained of on appeal within 21 days

pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has

filed an opinion.

      The following issues have been presented for our review:

            I.      Whether the trial court erred in failing to

                    failed to sufficiently administer Miranda
                    warnings prior to custodial interrogation and
                    where Appellant was unable to knowingly,
                    voluntarily, and intelligently waive those rights
                    due to his injuries and the narcotics he was
                    administered in violation of Article 1, Section 9
                    of the Pennsylvania Constitution and the Fifth
                    Amendment to the United States Constitution?

            II.     Whether the trial court erred in precluding the
                    jury from considering the statement contained


                    home intoxicated and started waving a gun

                    for its substantive value?

            III.    Whether the Commonwealth failed to present

                    convictions for first-degree murder and
                    attempted murder where the Commonwealth
                    failed to prove that Appellant possessed


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                  specific intent and where Appellant was
                  intoxicated to such an extent so as to
                  overwhelm his faculties and sensibilities?
                                            1



      We have carefully reviewed the briefs, the relevant law, the record,

and the well-reasoned opinion authored by the Honorable Todd A. Hoover.

We find that



      However, we note that the trial court did not dispose of a sub-issue

                                                     court did not address

                                                               Mirandized

when Detective Taylor asked him what they should do with his vehicle.



      The facts re

summarized by the trial court. We include only the following portion which

is directly related to the issue at hand.

                  Officer Jennie Jenkins testified that on
            December 27, 2010, she was assigned to watch over
            [appellant], who was hospitalized in the Hershey
            Medical Center. Officer Jenkins was in full uniform.
            [Appellant] was in police custody. Another officer,
            Detective Taylor, the lead detective in the case,
            arrived in the room, introduced himself to
            [appellant], and gave [appellant] a writing board
            with which to communicate. When Officer Jenkins


1
  An additional issue concerning the weight of the evidence presented in
                                             been presented to our court in
his brief; hence, we deem it to have been abandoned.


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            [appellant] preferred to communicate in Spanish.
            Detective Taylor had a limited conversation with
            [appellant] regarding what [appellant] wanted done
            with his vehicle.    Neither Detective Taylor nor
            Officer Jenkins questioned [appellant] about the
            incident. Detective Taylor left after obtaining the
            information o
            vehicle.

                  After   Detective    Taylor      left,   hospital   staff

            throat. Hospital staff asked [appellant] if he could
            speak, and requested that he count, which he did.

Trial court opinion, 11/13/13 at 2-9 (citations to the record omitted).

      The standard for determining whether an encounter with the police is



objective   one   based   on   a   totality   of   the     circumstances,     with   due

consideration given to the reasonable impression conveyed to the person

being interrogated.   Commonwealth v. Gwynn, 723 A.2d 143, 148 (Pa.



law enforcement officers after a person has been taken into custody or



Commonwealth v. Johnson, 541 A.2d 332, 336 (Pa.Super. 1988), quoting

Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d



                                      Id., quoting Commonwealth v. Simala,




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not made in response to custodial interrogation, the statement is classified

as gratuitous, and is not subject to suppression for lack of warnings. Id.

      There is no question that appellant was in custody at the time the

detective came to his hospital room as appellant was handcuffed to the bed.

Thus, the only question before us is whether the encounter rose to the level



that the Miranda safeguards were implicated.

      Detective Taylor and Officer Jenkins came into his hospital room.

Detective Taylor asked appellant a question about the vehicle he left

unattended in front of the hospital and inquired what appellant wanted done

with the vehicle. (Notes of testimony, 3/29/13 at 11.) Appellant instructed

the detective to give it to a family member. (Id.) This was the entirety of

the conversation; neither the detective nor the officer questioned appellant

about the incident. (Id.)

      We agree with the Commonwealth that appellant fails to assert an

incriminating statement that was elicited from this conversation.    We also

agree that the detective did not ask this question with the intent to extract

incriminating statements. Therefore, Miranda warnings were not required.

See Commonwealth v. Jasper, 587 A.2d 705, 708-709 (Pa. 1991)



at trial to place the defendant at the murder scene, was admissible because




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response
                                         2



        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/13/2014




2
    Additionally, the fact that appellant used the white Acura that night would

throughout the interior of the car.


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