J-A29008-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSE AJIATAS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1411 WDA 2022

Appeal from the Judgment of Sentence Entered November 22, 2022

In the Court of Common Pleas of Allegheny County Criminal Division at 

No(s): CP-02-CR-0002830-2021

BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY BOWES, J.: FILED: FEBRUARY 13, 2024

Jose Ajiatas appeals from the aggregate judgment of sentence of six to 

twelve years of imprisonment followed by five years of probation for his 

conviction for, inter alia, rape of a child. We affirm. 

The trial court set forth the pertinent facts: 

On November 30, 2020, Detective Brian Sellers of the City of 

Pittsburgh Police Department’s Special Victims Unit received a 

ChildLine report concerning an eleven-year-old female, L.C. The 

report initiated by L.C.’s primary care physician indicated that the 

minor was [twenty-one] weeks pregnant. A procedure to 

terminate the pregnancy was scheduled on December 2, 2020, 

and in anticipation of this event, Detective Sellers sought and 

obtained a search warrant for the “genetic material (DNA) from 

fetal tissue retrieved from an eleven-year old female, [L.C.] from 

UPMC Magee Women’s Hospital.”

L.C. initially claimed that the father of the unborn child was a male 

minor between the age of ten and eleven years old. As indicated 

in the accompanying Affidavit of Probable Cause for the search 

warrant, Dr. Jennifer Clarke, a pediatrician at UPMC Children’s 

Hospital, informed [Detective Sellers] that it was “highly unlikely” 
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that an eleven-year-old male could produce fertile sperm that 

would result in pregnancy. Additionally, he learned from L.C.’s 

brother or sister that she had been attending school remotely and 

that they were unaware of her being involved with a boy of similar 

age. As L.C. is below the legal age of consent, and with the 

possibility of a sexual criminal act, Detective Sellers sought a 

sample of the fetal tissue from the termination procedure with the 

intent to determine paternity through DNA comparison. On 

December 2, 2020, Detective Sellers executed the warrant and 

obtained the fetal tissue sample.

As part of his investigation, forensic and other interviews were 

conducted. On December 24, 2020, Detective Sellers had a 

telephone conversation with L.C.’s brother, B.A. Detective Sellers 

explained to B.A., and his father, [Appellant], that as part of his 

investigation into L.C.’s pregnancy, he would like both of them to 

come to police headquarters to provide a DNA sample. After 

Detective Sellers became aware that [Appellant] spoke little to no 

English, he asked if B.A., who was [seventeen] years old, would 

be willing to interpret for [Appellant]. He agreed, and around 4:00 

p.m. that same day, [Appellant] and B.A. arrived voluntarily at 

the police station. Detective Sellers communicated to [Appellant] 

that he was not a suspect, and at no time was [Appellant] 

handcuffed or told that he was not free to leave. Detective Sellers 

brought B.A. and [Appellant] into a room to obtain the DNA 

sample. The door remained closed and unlocked, and no other 

law enforcement officers were present. 

It was established during the suppression hearing that the 

Pittsburgh Police Department employs Spanish-speaking 

interpreters, but they are not on-call [twenty-four] hours a day 

and Detective Sellers did not call one to assist in translation on 

this day. Moreover, [Detective] Sellers testified that he is 

unaware of, and has never seen, a departmental Consent to 

Search form written in Spanish. The English-language Consent to 

Search form was provided to B.A. and it was also read aloud by 

Detective Sellers and translated simultaneously to [Appellant]. 

The form read as follows: “(1) That I may require a search warrant 

to be obtained prior to any search being made; (2) That I may 

refuse to consent to any search; (3) That anything which may be 

found as a result of this search which is subject to search and 

seizure can and will be used against me in a criminal prosecution; 

(4) That I may revoke my consent to search at any time; and (5) 
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That I may consult with anyone of my choosing before I make a 

decision to waive my rights in consenting to this search.” 

Upon translation of these five statements by B.A. to [Appellant], 

Detective Sellers described that [Appellant] responded with a 

head shake or head nod, but was unsure if he responded verbally 

with “yes” or “si.” Thereafter, it was signed by [Appellant] on 

December 24, 2020 at 4:23 PM. Detective Sellers observed during 

the translation by B.A. that [Appellant] appeared friendly, 

observant, and responded in a positive manner. After [Appellant] 

consented to providing a sample, Detective Sellers explained the 

collection process. He informed [Appellant], through B.A., that he 

will need to open his mouth, whereafter the inside of both cheeks 

will be swabbed three times before placing the swab in a transport 

pouch. [Appellant] complied without any issue. 

Detective Sellers testified that the entire interaction with 

[Appellant] was no more than [ten] to [fifteen] minutes long, and 

B.A. never communicated any questions from [Appellant] to 

Detective Sellers. 

[Appellant] also testified at the evidentiary hearing [with the aid 

of an interpreter]. [Appellant] stated that he knows very little 

English. He explained that he went to the police station with his 

son, B.A., and it was explained to him after he arrived that the 

police wanted a DNA sample. . . . Appellant testified that he had 

“no choice” other than to sign the consent form because the 

detective was present. Furthermore, he stated that he did not 

understand that by signing the form police could obtain a DNA 

sample. 

Findings of Fact and Conclusions of Law, 6/23/22, at 3-6 (cleaned up).

Appellant was charged with multiple criminal offenses, including rape of 

a child. He subsequently filed a motion to suppress based upon the 

voluntariness of his consent, and the trial court held a hearing on this issue. 

The court denied the motion, holding that Appellant’s consent to the search 

was given knowingly, intelligently, and voluntarily. The parties proceeded to 

a stipulated bench trial. Appellant was convicted of rape of a child and other 
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related offenses and was later sentenced as indicated above. This timely 

appeal followed. The trial court ordered Appellant to file a concise statement 

of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), and 

Appellant complied. Thereafter, the court issued a Rule 1925(a) opinion.

Appellant proffers the following question for our review: “Whether the 

trial court erred in denying [Appellant’s] motion to suppress where his consent 

to the DNA swab was not knowingly, intelligently, and voluntarily given to the 

detective?” Appellant’s brief at 8. 

We begin with a review of the germane legal principles. Preliminarily, 

[a]n appellate court’s standard of reviewing the denial of a 

suppression motion is limited to determining whether the 

suppression court’s factual findings are supported by the record 

and whether the legal conclusions drawn from those facts are 

correct. Thus, our review of questions of law is de novo. Our 

scope of review is to consider [the evidence offered by the 

Commonwealth] only and the evidence for the defense as remains 

uncontradicted when read in the context of the suppression record 

as a whole.

Commonwealth v. Shaffer, 209 A.3d 957, 968-69 (Pa. 2019) (citations 

omitted). When a motion to suppress has been filed, the Commonwealth has 

the burden of proving by a preponderance of the evidence that the challenged 

evidence was not unlawfully obtained. See Commonwealth v. Wallace, 42 

A.3d 1040, 1047-48 (Pa. 2012). 

Where the voluntariness of consent to search is at issue, the following 

tenets guide our review:

A search conducted without a warrant is deemed to be 

unreasonable and therefore constitutionally impermissible, unless 

an established exception applies. One such exception is consent, 
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voluntarily given. The central Fourth Amendment inquiries in 

consent cases entail assessment of the constitutional validity of 

the citizen/police encounter giving rise to the consent; and, 

ultimately, the voluntariness of consent. Where the underlying 

encounter is found to be lawful, voluntariness becomes the 

exclusive focus.

Commonwealth v. Strickler, 757 A.2d 884, 888–89 (Pa. 2000) (citations 

and footnotes omitted). The voluntariness standard for consent is less 

stringent than the tests governing waiver of other constitutional rights. Id. 

at 889 n.3 (“[W]hile the waiver analysis appropriately applies to safeguard 

constitutional guarantees involving the preservation of a fair trial of criminal 

defendants, it does not pertain to the wholly different protections of the Fourth 

Amendment[.]” (citations omitted)). The test is objective in nature, with 

some subjective considerations. Id. at 901 (“Additionally, although the 

inquiry is an objective one, the maturity, sophistication and mental or 

emotional state of the defendant (including age, intelligence and capacity to 

exercise free will), are to be taken into account.” (citations omitted)). 

Appellant concedes that his encounter with the detective was lawful and, 

therefore, challenges only the voluntariness of the consent given to conduct 

the DNA swab. See Appellant’s brief at 22. In so doing, he avers that the 

Commonwealth did not prove that B.A. translated everything that Detective 

Sellers said to Appellant fully and accurately, as a certified interpreter was not 

utilized in obtaining Appellant’s consent. Id. at 31. Thus, Appellant contends 

that, because of the language barrier, he did not fully comprehend the consent 

to search form, and therefore any consent was improperly obtained. Id. 
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Appellant analogizes his case to Commonwealth v. Carmenates, 266 

A.3d 1117 (Pa.Super. 2021) (en banc). Therein, Carmenates’s vehicle was 

pulled over for a traffic stop. Carmenates, whose first language was Spanish, 

spoke little English, while the trooper could not speak any Spanish. To 

communicate with Carmenates, the trooper used the Google Translate 

application on his cell phone. However, it was adduced at the suppression 

hearing that the translation from Google Translate was sometimes inaccurate. 

Furthermore, the suppression court found that the trooper deliberately used 

vague and imprecise words to confuse Carmenates in order to obtain his 

consent to search the vehicle and items in it. The trooper additionally had a 

Spanish-language consent to search form in his vehicle but neglected to use 

it. Hence, the court determined that Carmenates’s consent to search the 

vehicle was not given knowingly, intelligently, and voluntarily, and this Court 

affirmed. 

Appellant avers that the substantial language barrier he faced is 

analogous to that in Carmenates and, thus, argues that the consent obtained 

by Detective Sellers was similarly invalid. See Appellant’s brief at 31. 

However, the trial court rejected this claim, finding that Carmenates was 

distinguishable. See Findings of Fact and Conclusions of Law, 6/23/22, at 11-

12. Unlike in Carmenates, B.A.’s translation in the matter sub judice was 

never proven to be an inaccurate representation of Detective Sellers’s 

questions. Moreover, whereas the trooper in Carmenates had a prepared 

consent form in Spanish in his vehicle but chose not to use it, such was not 
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the case herein. There was no evidence presented that Detective Sellers 

attempted to trick Appellant into providing his consent or failed to act in good 

faith. Instead, he asked Appellant’s son, B.A., to translate what was written 

on the form. Based on these distinctions, we agree with the court that 

Appellant’s reliance on Carmenates is inapt. 

The trial court concluded that the Commonwealth proved by a 

preponderance of the evidence that Appellant’s consent was voluntary and not 

obtained in violation of his rights. See Findings of Fact and Conclusions of 

Law, 6/23/22, at 13. It noted that Appellant’s body language indicated that 

he understood what B.A. was saying as he nodded and gave positive verbal 

affirmations while listening to B.A.’s translation of Detective Sellers’s 

statements. Id. at 5, 13. Furthermore, Appellant was cooperative while B.A. 

translated the form and Detective Sellers took the DNA sample. Id. at 5-6. 

Indeed, while undergoing the DNA swab, Appellant acted in accordance with 

what the detective instructed him to do, demonstrating that it was an accurate 

translation. Id. at 13. The court also decided that the use of B.A., a family 

member, to translate was not unreasonable in these circumstances. Id. at. 

12-13. Thus, the trial court found that Appellant understood what was being 

asked of him, including his right to refuse consent. Id.

On review, we determine that the certified record confirms the trial 

court’s findings that suppression was not warranted under the circumstances 

of this case. Appellant acknowledged that he went to the police station to 

provide a DNA swab and that he had signed the consent form to that extent. 
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Id. at 31-32. When asked through an interpreter whether he was aware that 

Detective Sellers wanted his DNA, Appellant responded, “when I got there, I 

found out.” Id. at 31. This belied Appellant’s contention that he did not 

comprehend the translation given by B.A., since Appellant conceded that he 

understood the detective wished to collect a DNA sample. Moreover, 

according to Detective Sellers’s testimony, Appellant was cooperative 

throughout the entire interaction. See N.T. Suppression Hearing, 4/5/21, at 

10. When the detective explained to Appellant the process of conducting a 

DNA swab, he encountered no inquiries or resistance from Appellant. Id. at 

12-13. Appellant was compliant and never questioned or tried to stop the 

proceeding in any way, instead nodding and expressing affirmance as B.A. 

translated. Id. at 10-11. Finally, Detective Sellers also testified that he 

frequently used bilingual family members such as B.A. to translate, as he 

found that people are often more comfortable around individuals with whom 

they are well-acquainted. Id. at 26-27. 

As the court’s factual findings that Appellant knowingly, intelligently, 

and voluntarily consented to the swab are supported by the record, the trial 

court did not err in denying Appellant’s motion to suppress. Accordingly, 

Appellant is not entitled to relief. 

Judgment of sentence affirmed. 
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FILED: 2/13/2024