February 26, 2014
IN THE INTEREST OF: D.B. APPEAL OF: D.B.
Appeal from the Adjudication of Delinquency entered January 22, 2013, in the Court of Common Pleas of Philadelphia County, Juvenile Division, at No(s): CP-51-JV-004785-2012
BEFORE: ALLEN, JENKINS, and FITZGERALD [*] , JJ.
D.B. ("Appellant") appeals from the dispositional order entered following his adjudication of delinquency for possession of a firearm by a minor, 18 Pa.C.S.A. § 6110.1. We affirm.
The juvenile court summarized the facts and procedural posture as follows:
On December 23, 2012, [Philadelphia Police Officer Mark] Marchetti was working with a partner as he drove their police car on Wilton Street in Philadelphia at 11:35 p.m. Officer Marchetti saw [Appellant] and three other young men "duck into a breezeway" on Wilton Street as Marchetti and his partner drove past the group. Officer Marchetti made a u-turn at the next corner and drove back toward [Appellant] and the other young men. Officer Marchetti drove directly toward [Appellant]. The other three men had walked away from [Appellant] and were on the other side of Wilton Street. Officer Marchetti saw [Appellant] pull a black handgun from his waistband and drop it on the ground from a distance of 20 feet. Officer Marchetti immediately recovered the gun, which was loaded and operable. Officer Marchetti also took [Appellant] into custody and placed him in the police car for transportation to the police district.
Inside the police car, Officer Marchetti spoke to [Appellant] and:
"told him, [w]hat are you doing carrying this firearm? You're a young man. You don't need this."
[Appellant] then stated that he found the gun. Officer Marchetti did not testify that he Mirandized [Appellant] before telling him that he should not be carrying a firearm.
Juvenile Court Opinion, 4/8/13, at 2 (citations to notes of testimony and footnote omitted).
Appellant was charged with possession of a firearm by a minor. On January 8, 2013, Appellant moved for suppression of the statement he made to Officer Marchetti while being driven to the police station. The Juvenile Court denied Appellant's motion. That same day, Appellant was adjudicated delinquent for possessing a firearm as a minor, and on January 22, 2012, the trial court entered a disposition order committing Appellant to a juvenile facility.
Appellant filed a timely notice of appeal. Both Appellant and the juvenile court have complied with Pa.R.A.P. 1925. Appellant presents one issue on appeal:
Should not [Appellant's] incriminating statement be suppressed where the arresting officer elicited the statement during custodial interrogation without first advising [Appellant] of his Miranda rights?
Appellant's Brief at 3.
Appellant challenges the juvenile court's denial of his suppression motion. Appellant's Brief at 8-17. Our scope and standard of review of this claim is well-settled:
An appellate court's standard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. [Because] the prosecution prevailed in the suppression court, we may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.
Commonwealth v. Reese, 31 A.3d 708, 721 (Pa.Super. 2011) (citations omitted).
Appellant argues that the statement he made to Officer Marchetti in the police vehicle was elicited during a custodial interrogation, without Appellant being advised of his Miranda rights. Appellant's Brief at 8-16. "The law is clear that Miranda is not implicated unless the individual is in custody and subjected to interrogation." Commonwealth v. Umstead, 916 A.2d 1146, 1149-1152 (Pa.Super. 2007) (citations omitted) (emphasis added); see Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). "Police detentions only become custodial when, under the totality of the circumstances, the conditions and/or duration of the detention become so coercive as to constitute the functional equivalent of formal arrest … [T]he test focuses on whether the individual being interrogated reasonably believes his freedom of action is being restricted." Commonwealth v. Baker, 963 A.2d 495, 501 (Pa.Super. 2008) (citations omitted). Neither Appellant nor the Commonwealth dispute that Appellant was in custody at the time he made the challenged statements to Officer Marchetti. Appellant argues, however, that he was subjected to an interrogation, which required the police to provide him with Miranda warnings. Appellant's Brief at 8-16. Interrogation is defined as "police conduct calculated to, expected to, or likely to evoke admission." Umstead, 916 A.2d at 1152.
The definition of interrogation includes the "functional equivalent" of express questioning as the United States Supreme Court explained in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980):
[T]he term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.... A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.
Id., at 300–301, 100 S.Ct. 1682 (emphasis omitted). Commonwealth v. McAliliey, 919 A.2d 272 (Pa.Super. 2007) (some citations omitted). "In making this determination, Innis requires that we, as a reviewing court, examine the totality of the circumstances surrounding the police interaction with an individual in custody and focus on [the individual's] perceptions and give relevance to the officer's constructive knowledge." Commonwealth v. Briggs, 12 A.3d 291, 323 (Pa. 2011) (citations and internal quotations omitted); see also Commonwealth v. Cruz, 71 A.3d 998, 1003 (Pa.Super. 2013) (citations omitted) ("In deeming an interaction to be a custodial interrogation, the police officer's subjective intent does not govern the determination but rather the reasonable belief of the individual being interrogated.") "When a person's inculpatory statement is not made in response to custodial interrogation, the statement is classified as gratuitous, and is not subject to suppression for lack of warnings." Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa.Super. 1999).
Here, the juvenile court concluded that Appellant was not subjected to an interrogation when he made the challenged statement to Officer Marchetti, and suppression of his statement was therefore not warranted. Juvenile Court Opinion, 4/8/13, at 8-9. The juvenile court explained:
[After] Officer Marchetti recovered a handgun that [Appellant] discarded on a public street at 11:35 p.m., [the officer] immediately took [Appellant] into custody and placed him in the police car for transportation to the police district. Inside the police car, Officer Marchetti spoke to [Appellant] and:
"told him, [w]hat are you doing carrying this firearm. You're a young man. You don't need this."
N.T., 1/8/13, at 6 (emphasis supplied). The officer credibly characterized the interaction as the officer "telling" [Appellant] information. The comments directed toward [Appellant] during the ride to the police district did not call for a response but are best characterized as an attempt to impart some basic advice upon a youth engaging in dangerous, criminal conduct. In fact, the response offered by [Appellant] was not responsive to the only part of the officer's remark that could be construed as a question. [Appellant] provided information about "where" he obtained the firearm rather than providing an explanation of "why" he was carrying it. Following [Appellant's] statement, Officer Marchetti did not ask any questions regarding the crime and [Appellant] made no additional statements regarding the firearm.
 Officer Marchetti's commentary "was not of an inquisitive nature" and did not call for a response although Appellant provided one.  Officer Marchetti did not ask any follow up questions after Appellant volunteered a statement regarding the firearm and Appellant did not offer any additional information.
Juvenile Court Opinion, 4/8/13, at 8-9 (some citations to notes of testimony and case law citations omitted).
We agree with the juvenile court that Officer Marchetti's question was rhetorical in nature. However, in determining what constitutes an interrogation, the police officer's subjective intent does not govern and we must focus on Appellant's perceptions. Briggs, 12 A.3d at 323; Cruz, 71 A.3d at 1003. Thus, although Officer Marchetti may have been engaging in small talk or a "normal conversation" with Appellant in the course of which he asked Appellant a rhetorical question, objectively, the officer's words could be perceived as likely to elicit an incriminating response from Appellant. Because Officer Marchetti's statements were reasonably likely to elicit an incriminating response, we are constrained to conclude that Appellant was subjected to a custodial interrogation.
However, even if Appellant was subjected to a custodial interrogation requiring Miranda warnings, the juvenile court's denial of Appellant's suppression motion constituted harmless error. "A suppression court's error regarding failure to suppress statements by the accused will not require reversal if the Commonwealth can establish beyond a reasonable doubt that the error was harmless." Commonwealth v. Baez, 720 A.2d 711, 720 (Pa. 1998). "This burden is satisfied when the Commonwealth is able to show: (1) the error did not prejudice the defendant or the prejudice was de minimis; 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 was so insignificant by comparison that the error could not have contributed to the verdict." Commonwealth v. Mayhue, 639 A.2d 421, 433 (Pa. 1994).
Here, Officer Marchetti testified that he was patrolling the 1400 block of South Wilton Street when he observed four males standing on a street corner and ducking in and out of an alleyway. N.T., 1/8/13, at 3-4. When Officer Marchetti drove toward them, Officer Marchetti saw Appellant reach into his waistband and pull out a black handgun. Id. Officer Marchetti's view of Appellant was unobstructed and the area was well lighted. Id. at 5. When Officer Marchetti exited his vehicle, he saw Appellant drop the gun on the ground and walk away. Id. Officer Marchetti immediately retrieved the gun, which was loaded and operable. Id.
Given Officer Marchetti's unequivocal eyewitness testimony, any prejudicial effect resulting from the introduction of Appellant's statement while in the police car that he found the gun, was so insignificant by comparison that the error "could not have contributed to the verdict." Mayhue, supra. Appellant was charged with a single count of possessing a firearm. At the time he made his statement that he found the gun, Officer Marchetti had already observed Appellant in possession of the gun. In light of the overwhelming evidence of Appellant's possession of the gun, any error resulting from the admission of Appellant's statement that he found the gun was harmless. See Commonwealth v. Henry, 599 A.2d 1321, 1326 (Pa.Super. 1991) citing Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (the erroneous admission of a confession can be constitutionally harmless, even if the confession was coerced); Commonwealth v. Rosario, 652 A.2d 354, 366 (Pa.Super. 1994) (even if Miranda warnings were required, the defendant's challenged statement was merely cumulative of other testimony and assuming arguendo that the trial court erred in denying the defendant's motion to suppress, that error was harmless).
For the foregoing reasons, we affirm the juvenile court's disposition. Disposition affirmed.