J-S73015-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

    COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                              :         PENNSYLVANIA
                   v.                         :
                                              :
    OMAR ANGELERO COLON, JR.,                 :
                                              :
                Appellant                     :   No. 621 MDA 2017

             Appeal from the Judgment of Sentence March 7, 2017
              in the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0003592-2016,
                           CP-36-CR-0006001-2015

BEFORE: OLSON, DUBOW, and STRASSBURGER,* JJ.

CONCURRING MEMORANDUM BY STRASSBURGER, J.:                    FILED APRIL 02,

2018

        While I agree with the ultimate result reached by the Majority, I disagree

with its conclusion that the trial court did not err when it denied Appellant’s

motion to suppress.

        Here, the Majority affirms Appellant’s judgment of sentence based upon

the reasoning set forth in the trial court’s opinion. Therein, the trial court

noted that there was no dispute that Appellant’s statement were made while

he was in custody and without the benefit of Miranda1 warnings. Trial Court

Opinion, 6/15/2017, at 7. Thus, the inquiry was not whether Appellant was




1   Miranda v. Arizona, 384 U.S. 436 (1966).



*Retired Senior Judge assigned to the Superior Court.
J-S73015-17


properly advised of his rights, but whether Appellant’s statement “was elicited

in response to an interrogation.” Id.

      The trial court determined that Appellant’s statement he didn’t “know

what this is about. I didn’t shoot anybody, it was a firecracker … they’re not

going to testify anyway…” was not made during an interrogation, citing two

cases to support its finding. See Commonwealth v. Petrino, 480 A.2d 1160

(Pa. Super. 1984) (holding that no custodial interrogation took place when,

while being processed, Petrino asked the detective if he wanted to know what

had taken place on the date in question; when the detective replied “oh yes,”

Petrino gave an incriminating response); Commonwealth v. Brantner, 406

A.2d 1011 (Pa. 1979) (finding Brantner was not subjected to a custodial

interrogation when, during booking, in response to the sheriff telling Brantner

“Hi [Brantner]. Apparently we have a little problem, and I need to take your

photograph,” Brantner responded with an admission that he had “shot those

two people”).   Here, Appellant’s statement was neither unprompted, as in

Petrino, nor was the response gratuitous considering the statement made by

the officer as in Brantner.

      Rather, I find this case to be closer to Commonwealth v. Snyder, 60

A.3d 165 (Pa. Super. 2013), which the trial court rejected and distinguished

as dissimilar. In Snyder, the defendant

      was subjected to the functional equivalent of an interrogation
      when [the d]etective explained to [defendant] that a warrant for
      his arrest had been issued for obstructing the administration of

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      law, told [defendant] about the statements against him that his
      supervisors had made to the police, informed [defendant] that
      police had interviewed the people involved, including the people
      [defendant] had told about the impending search warrants, and
      informed [defendant] that the police had received written
      statements incriminating [defendant].

Id. at 172.

      In the instant case, Detective Lockhart entered the processing room

where Appellant was being held following his arrest, advised Appellant that he

was the officer who filed the charges against Appellant, and relayed to

Appellant that he wanted to speak with him about the incident.          Majority

Memorandum at 3-4.          Considering the circumstances, the Detective’s

statements presented a real possibility that Appellant would make an

admission or incriminating response. See Commonwealth v. Fisher, 769

A.2d. 1116, 1125 (Pa. 2001) (“Interrogation occurs when the police should

know that their words or actions are reasonably likely to elicit an incriminating

response, and the circumstances must reflect a measure of compulsion above

and beyond that inherent in custody itself.”) (internal citation omitted);

Commonwealth v. Gaul, 912 A.2d 252, 256 (Pa. 2006) (“Merely because a

police officer intended the encounter to be informational does not mean that

it could not also constitute an interrogation.”).

      Nonetheless, despite the foregoing, based upon the overwhelming

evidence presented at trial, I believe the trial court’s error in failing to

suppress Appellant’s statement was harmless. Thus, I respectfully concur.



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