Com. v. Merritt, E. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
EDWARD L. MERRITT
Appellee No. 1202 WDA 2015
Appeal from the Order Entered July 29, 2015
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0002202-2014
BEFORE: SHOGAN, OLSON and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 29, 2016
Appellant, the Commonwealth of Pennsylvania (Commonwealth),
appeals from an order entered on July 29, 2015 granting Edward L. Merritt’s
(Merritt) motion in limine pursuant to the corpus delecti rule. After careful
consideration, we are constrained to affirm.
The trial court prepared the following summary of facts based upon
testimony received during the preliminary hearing held in this case on
October 22, 2014:
Michael Kanuch ([Officer] Kanuch)[,] an officer with the
Johnstown Police Department (JPD)[,] testified that on July 31,
2014, he along with other officers executed a search warrant on
the residence of India Snyder (Snyder) [] in Johnstown. Officer
Kanuch testified that at approximately 6:00 a.m. officers used a
ram to breach the front door and gain access to the residence.
Officer Kanuch was the second officer through the door and upon
entering observed Merritt sitting on a couch with his hands
raised. Officer Kanuch testified that he did not observe Merritt
*Retired Senior Judge assigned to the Superior Court.
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make any movements and that Merritt was immediately taken to
the ground and handcuffed by other officers.
In addition to Merritt, Snyder and Bernadette Urbassik
(Urbassik) were found in the residence. During the search[,]
officers located the following items: a [loaded 12-gauge]
Remington shotgun under the couch; 68 stamp bags of heroin
located . . . in the couch cushions; items of drug paraphernalia .
. . in the kitchen; $4,[654.00] in cash and shotgun shells . . . in
an upstairs bedroom.
Merritt was transported to the Johnstown Public Safety building
where JPD detective Brett Hinterliter (Hinterliter) interviewed
him. Merritt was read his Miranda[1] rights, indicated that he
understood those rights, that he wished to waive them, and
signed a waiver of rights form. In his statement to Hinterliter,
Merritt acknowledged that one time while reaching under the
couch for some marijuana that he dropped he felt the shotgun
and pulled it out from under the couch. Snyder then told him
that she owned the shotgun and that it was registered. At that
time[,] Merritt placed the shotgun back under the couch and
never touched it again.
Officer Kanuch testified that Snyder admitted to ownership of the
shotgun and that it was registered to her. Officer Kanuch further
testified that the [police] had information from confidential
sources that a black male had been at [Snyder’s] house for
several weeks but [Officer Kanuch] was unable to say if Merritt
was that person. Officer Kanuch further testified that [Snyder’s]
house was under surveillance for three days in the period of July
21st to July 31st and that Merritt was not observed entering or
leaving the house during those periods. Finally, Officer Kanuch
was unable to say if any clothing or personal items [owned by
Merritt] were discovered in the house.
Trial Court Opinion, 9/28/15, at 2-3.
The procedural history in this case is as follows. On July 31, 2014, the
police filed a criminal complaint charging Merritt with the following offenses:
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1
Miranda v. Arizona, 384 U.S. 436 (1966).
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count one – possession with intent to deliver a controlled substance, 35 P.S.
§ 780-113(a)(30); count two – knowing and intentional possession of a
controlled substance, 35 P.S. § 780-113(a)(16); count three – possession of
a firearm by a prohibited person, 18 Pa.C.S.A. § 6105(a)(1); and, count four
– possession of drug paraphernalia, 35 P.S. § 780-113(a)(32). Following a
preliminary hearing on October 22, 2014, the magistrate bound all charges
over to the trial court. On March 16, 2015, the Commonwealth filed a
criminal information that withdrew counts one, two, and four and maintained
a single charge of possession of a firearm by a prohibited person.
On May 15, 2015, Merritt filed an omnibus pretrial motion seeking
suppression of his statement regarding the shotgun recovered from Snyder’s
residence. The motion cited two grounds for relief. First, Merritt argued
that his statement should be suppressed because police obtained it in
violation of his rights under Miranda. In the alternative, Merritt alleged that
his statement should be excluded2 under the corpus delecti rule since the
Commonwealth failed to establish the elements of the firearms offense
absent his admission. The trial court denied Merritt’s suppression motion
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2
This aspect of Merritt’s brief in support of his omnibus pretrial motion
requested relief in the form of “exclusion,” rather than “suppression,”
because he sought relief via a motion in limine, a procedural device used to
test the admissibility of evidence.
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but ordered exclusion of his statement by opinion and order issued on July
29, 2015. This appeal followed.3
On appeal, the Commonwealth lists two related questions for our
consideration.
Whether the trial court erred when it found that the
Commonwealth failed to prove the corpus delecti of the crime of
possession of a firearm by a [prohibited person], when a loaded
shotgun was found underneath the couch where a convicted
felon was sleeping.
Whether the trial court erred when it found that the
Commonwealth failed to prove the corpus delecti of the crime of
possession of a firearm by a [prohibited person], when the trial
court required the Commonwealth to directly link [Merritt] to the
crime.
Commonwealth’s Brief at 4.
As both issues raised by the Commonwealth challenge the trial court’s
order granting Merritt’s motion in limine, we apply the following principles in
our review of those claims:
A motion in limine is used before trial to obtain a ruling on the
admissibility of evidence. Northeast Fence & Iron Works,
Inc. v. Murphy Quigley Co., Inc., 933 A.2d 664 (Pa. Super.
2007). “It gives the trial judge the opportunity to weigh
potentially prejudicial and harmful evidence before the trial
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3
The Commonwealth filed a timely notice of appeal on July 30, 2015. That
same day, the trial court directed the Commonwealth to file, within 21 days,
a concise statement of errors complained of on appeal. See Pa.R.A.P.
1925(b). The Commonwealth timely filed its concise statement on August
14, 2015 and the trial court issued its Rule 1925(a) opinion on September
28, 2015. The Commonwealth certified in its notice of appeal that the trial
court’s order terminated or substantially handicapped its prosecution of
Merritt. See Pa.R.A.P. 311(d).
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occurs, thus preventing the evidence from ever reaching the
jury.” Commonwealth v. Reese, 31 A.3d 708, 715 (Pa. Super.
2011) (en banc). A trial court's decision to grant or deny a
motion in limine “is subject to an evidentiary abuse of discretion
standard of review.” Id.
Questions concerning the admissibility of evidence lie within the
sound discretion of the trial court, and we will not reverse the
court's decision absent a clear abuse of discretion.
Commonwealth Financial Systems, Inc. v. Smith, 15 A.3d
492, 496 (Pa. Super. 2011), citing Stumpf v. Nye, 950 A.2d
1032, 1035–1036 (Pa. Super. [2008]). “An abuse of discretion
may not be found merely because an appellate court might have
reached a different conclusion, but requires a manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or
such lack of support so as to be clearly erroneous.” Grady v.
Frito–Lay, Inc., 839 A.2d 1038, 1046 (Pa. 2003).
Parr v. Ford Motor Co., 109 A.3d 682, 690 (Pa. Super. 2014) (en banc)
(parallel citations omitted), appeal denied, 123 A.3d 331 (Pa. 2015), cert.
denied, 136 S. Ct. 557 (2015).
The Commonwealth’s claims on appeal attack the trial court’s
application of the corpus delecti rule. In Pennsylvania, “a confession is not
evidence in the absence of proof of the corpus delicti. ... [W]hen the
Commonwealth [proffers] sufficient evidence of the corpus delicti to entitle
the case to go to the jury, it [may introduce] a confession made by the
prisoner connecting him with the crime.” Commonwealth v. Taylor, 831
A.2d 587, 590 (Pa. 2003), quoting Gray v. Commonwealth, 101 Pa. 380,
386 (Pa. 1882). The rule is not limited to formal confessions; it extends to
admissions and statements of the accused. See Commonwealth v.
Smallwood, 442 A.2d 222, 225 (Pa. 1982).
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The corpus delicti rule begins with the proposition that a criminal
conviction may not be based upon the extra-judicial confession
of the accused unless it is corroborated by independent evidence
establishing the corpus delicti. Commonwealth v. Ware, 329
A.2d 258 (Pa. 1974). The corpus delicti, literally “the body of
the crime,” is defined as a wrong committed by criminal means,
and consists of the occurrence of a loss or injury, and some
person's criminal conduct as the source of that loss or injury.
Id. at 274. The criminal responsibility of a particular,
identifiable person, e.g. the accused, is not a requirement of the
rule. Commonwealth v. Elder, 451 A.2d 236, 237 (Pa. Super.
1982). The purpose of the rule is to prevent the use of hasty
and unguarded confessions to convict an individual when no
crime has been committed. Commonwealth v. Fried, 555 A.2d
119, 120 (Pa. Super. 1989), appeal denied, 564 A.2d 915 (Pa.
1989).
Under Pennsylvania law, the application of the corpus delicti rule
occurs in two distinct phases. The first phase involves the
court's application of a rule of evidence governing the threshold
question of the admissibility of the confession [or statement]. In
this first phase of the rule's application, the court must
determine whether the Commonwealth has proven the corpus
delicti of the crimes charged by a mere preponderance of the
evidence. If the court is satisfied that, on the evidence
presented, it is more likely than not that a wrong has occurred
through criminal agency, then the confession and/or admissions
of the defendant are admissible. Commonwealth v. Tallon,
387 A.2d 77 (Pa. 1978); Commonwealth v. Drexel, 503 A.2d
27 (Pa. Super. 1986), appeal denied, 521 A.2d 931 (Pa. 1987).
The second phase of the rule's application occurs after a
confession has already been admitted into evidence. After the
court has made its initial determination that the Commonwealth
has proved the corpus delicti by a preponderance of the evidence
and has ruled the confession to be admissible, the corpus delicti
rule additionally requires that the Commonwealth prove to the
jury's satisfaction beyond a reasonable doubt, the corpus delicti
of the crimes charged.
Commonwealth v. Ahlborn, 657 A.2d 518, 520-521 (Pa. Super. 1995),
appeal denied, 688 A.2d 170 (Pa. 1997).
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In its first claim, the Commonwealth argues that the trial court inflated
the applicable burden of proof, and thereby misapplied the corpus delecti
rule, in requiring the prosecution to demonstrate Merritt’s constructive
possession of the shotgun beyond a reasonable doubt, instead of by a mere
preponderance of the evidence. In advancing this claim, the Commonwealth
relies on the record developed at the preliminary hearing, which showed that
officers with the JPD recovered a loaded shotgun from underneath a couch
on which Merritt, a convicted felon, was sitting. These facts, in the
Commonwealth’s view, constitute a sufficient showing, for purposes of the
corpus delecti rule, that Merritt had constructive possession of the firearm
and that, as a result, his statement regarding the weapon was admissible.
To further support its position, the Commonwealth asserts that it only
needed to show that the firearm was possessed criminally to prove the
corpus delecti for possession of a firearm by a prohibited person under
§ 6105(a)(1). Here, the presence of the shotgun in a residence under
surveillance by JPD, where 68 stamp bags of heroin were recovered, where
three prior controlled drug buys were made, and where drug packaging
materials were discarded, made clear that “the gun was possessed by people
in the active distribution of heroin” and, hence, illegally held.
Commonwealth’s Brief at 13.
To introduce Merritt’s statement consistent with the corpus delecti
rule, the Commonwealth must establish by a preponderance of evidence
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(exclusive of Merritt’s admission that he touched the shotgun) that a
criminal agency caused a violation of § 6105(a)(1). Section 6105(a)(1)
provides, “[a] person who has been convicted of an [enumerated] offense ...
shall not possess, use, control, sell, transfer or manufacture or obtain a
license to possess, use, control, sell, transfer or manufacture a firearm in
this Commonwealth.” 18 Pa.C.S.A. § 6105(a)(1). The elements of the
offense proscribed by § 6105(a)(1) include proof that the defendant
possessed a firearm and that he was convicted of an enumerated offense.
Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa. Super. 2009), appeal
denied, 4 A.3d 1054 (Pa. 2010). Neither Snyder nor Urbassik has
disqualifying convictions that bar their possession of a firearm under
§ 6105(a)(1). Moreover, no one disputes that Officer Kanuch’s testimony
established that felony convictions in Merritt’s criminal history rendered him
ineligible to possess a firearm. Consequently, we, like the trial court, shall
confine our analysis to whether the Commonwealth proved Merritt’s
possession of the shotgun by a preponderance of the evidence.4
Since Merritt was not in physical custody of the shotgun at the time of
arrest, the Commonwealth needed to prove that he had constructive
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4
The Commonwealth does not dispute that Merritt is the only individual in
the present scenario whose possession of a firearm is precluded by
§ 6105(a)(1). Therefore, his alleged unlawful possession is the only conduct
that gives rise to the type of criminal agency-related “loss” required by the
corpus delecti rule.
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possession of the weapon to satisfy the corpus delecti rule. In
Commonwealth v. Murdick, 507 A.2d 1212 (Pa. 1986), our Supreme
Court addressed the issue of constructive possession where contraband is
recovered from an area accessible to more than one individual and
potentially subject to the control of more than one person. In that case, the
defendant, Murdick, answered the door when local officers and narcotics
agents from the Attorney General’s office arrived to serve a New Jersey
fugitive warrant on Murdick’s paramour, Sandra Dietz. Murdick directed the
officers to the bedroom where Dietz was asleep. While some of the officers
placed Dietz under arrest, Murdick explained that he lived with Dietz and
that the couple planned to marry. He also stated that he owned one of the
dogs at the home. During this time, officers observed suspected marijuana
on the living room coffee table. Upon seeing the drugs in plain view, some
of the officers left to obtain a search warrant. While waiting for their return,
Murdick walked into the kitchen of the home and retrieved a beverage from
the refrigerator. After the officers returned with the search warrant, they
seized the marijuana from the living room coffee table and recovered
cocaine from the bedroom and the study. Following his arrest, Murdick
retrieved his clothing from the bedroom he shared with Dietz. A jury
convicted Murdick of simple possession and possession of contraband with
intent to distribute.
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On appeal, Murdick challenged the sufficiency of the evidence of
constructive possession. This Court vacated Murdick’s conviction. Upon
further review, the Supreme Court reinstated his judgments of sentence,
explaining:
Constructive possession is a legal fiction, a pragmatic construct
to deal with the realities of criminal law enforcement.
Constructive possession is an inference arising from a set of
facts that possession of the contraband was more likely than not.
[The Supreme Court] ha[s] defined constructive possession as
“conscious dominion.” Commonwealth v. Davis, 280 A.2d
119, 121 (Pa. 1971). [The Supreme Court] subsequently
defined “conscious dominion” as “the power to control the
contraband and the intent to exercise that control.”
Commonwealth v. Macolino, 469 A.2d 132, 134 (Pa. 1983).
Though these tests may be helpful and logical in the abstract,
application to actual factual situations, particularly when multiple
actors are involved, has proven difficult for our lower courts in
cases involving controlled substances located on premises in
joint possession but not on the actual person of any of the
parties entitled to occupy those premises.
To aid application, [our Supreme Court] ha[s] held that
constructive possession may be established by the totality of the
circumstances. Commonwealth v. Fortune, 318 A.2d 327 (Pa.
1974). [Our Supreme Court] took a further step toward
resolving these problems in Commonwealth v. Macolino,
supra. In Macolino, contraband and otherwise legal items used
in the drug trade were found in the common bedroom of the
Macolinos, a married couple. [The Supreme Court] held that
“constructive possession can be found in one defendant when
both the husband and wife have equal access to an area where
the illegal substance or contraband is found.” [Macolino,] 469
A.2d at 135. See also Commonwealth v. Carroll, 507 A.2d
819 (Pa. 1986).
Though the facts here do not precisely mirror those in Macolino,
they are similar and the issue again concerns constructive
possession in an area of joint control. [The Supreme Court held]
that even absent a marital relationship constructive possession
may be found in either or both actors if contraband is found in
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an area of joint control and equal access. The marital
relationship per se was not critical to the Macolino analysis;
shared access to and control of the area where the contraband
was found was critical.
Here there was evidence that [Murdick] lived in the residence
and shared the bedroom with [] Dietz. From this evidence, the
factfinder could find joint control over and equal access to the
area where the cocaine was found, the bedroom. Given the
totality of the circumstances, i.e., joint control and equal access
and evidence that the cocaine was found in plain view, the jury
could have found constructive possession. [Moreover, the joint
control and access enjoyed by Murdick and Dietz in the bedroom
extended to the living room and supported the jury’s finding that
Murdick constructively possessed the marijuana recovered from
the coffee table.]
Murdick, 507 A.2d at 1213-1214.
Murdick permits a finding of constructive possession when officers
recover contraband from an area subject to joint access and control of
multiple persons. Our review of the relevant case law confirms, however,
that the decision in Murdick represents somewhat of a departure from
conventional formulations of the constructive possession doctrine.
Traditionally, constructive possession allows the prosecution to rely on proof
of “conscious dominion” over an object rather than requiring evidence of
direct physical control. As we noted above, courts define “conscious
dominion” as “the power to control the contraband and the intent to
exercise that control.” Macolino, supra. The Court in Murdick, however,
allowed evidence pertaining only to the defendant’s power to control the
premises to support an inference that he had the power and intent to control
the contraband and that he therefore exercised conscious dominion over the
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drugs. In dissent, Justice Zappala picked up on this concept, noting that:
“No evidence is cited, for none is present in the record, which is relevant to
proving [Murdick’s] intent to control the contraband.” Murdick, 507 A.2d at
1215 (Zappala, J., dissenting). More recently, this Court recognized the
modified standard applied in Murdick, which appears to obviate the need to
prove intent to exercise control over the contraband. See Commonwealth
v. Koch, 39 A.3d 996, 1007 (Pa. Super. 2011).
Regardless of whether we apply the conventional test for constructive
possession (requiring both power and intent to control contraband), or the
modified formulation espoused in Murdick (inferring constructive possession
from joint control and shared access of the premises), we discern no abuse
of discretion in the trial court’s refusal to find constructive possession here.
In contrast to the facts before the Supreme Court in Murdick, the record in
this case contains no proof that Merritt lived in Snyder’s residence (or
regularly shared accommodations there), possessed joint control of the
premises, or harbored the intent to control the shotgun. The trial court
made the following findings, which are supported by the record.
Here, the Commonwealth’s evidence establishes only that Merritt
was present in the residence and seated on the couch under
which the shotgun was found. [Officer] Kanuch testified that
when he entered the residence he observed Merritt sitting on the
couch with his hands raised, that Merritt made no movements,
and was immediately taken to the ground and handcuffed. N.T.,
10/22/14, at 15-16. The Commonwealth has not established
how long Merritt was staying in the house, i.e. was he an
overnight guest or there on a long term basis, the only evidence
offered in this regard was [Officer] Kanuch’s statement that the
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officers had information that a black male had been staying in
the house for a couple of weeks. Id. This evidence is
insufficient to establish that Merritt was the [individual] alleged
to be staying there, particularly in light of [Officer Kanuch’s]
testimony that during the periods of surveillance leading up to
July 31st[, Merritt] was not observed at the house.
Further, the evidence presented does not establish that Merritt
had any right of joint control over the house or its contents.
[Officer Kanuch did not know whether Merritt stored clothing or
other personal items in the household.] The house is in Snyder’s
name, as is the shotgun, and there was no evidence presented
that Merritt was anything other than a guest with no rights to
control Snyder’s property. In total[,] the Commonwealth’s
evidence has failed to show that Merritt had the right of joint
access and control over either the shotgun or the house.
Trial Court Opinion, 7/29/15, at 11-12.
We agree with the trial court that Merritt’s mere presence in Snyder’s
residence in close proximity to the shotgun is legally insufficient to show
constructive possession by a preponderance of the evidence. See
Commonwealth v. Valette, 613 A.2d 548, 551 (Pa. 1992) (mere presence
in apartment where drugs are found does not demonstrate constructive
possession); Koch, 39 A.3d at 1007 (constructive possession of contraband
recovered from shared spaces and common areas of home requires proof of
both power and intent to control contraband). Because the Commonwealth
presented no evidence showing that Merritt regularly stayed at Snyder’s
residence or enjoyed joint control over the house or its contents, there is
insufficient support for the Commonwealth’s claim that the trial court
improperly applied a higher burden of proof for establishing constructive
possession.
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We also reject the Commonwealth’s supplemental position that the
shotgun was possessed “criminally” because police recovered it from a house
occupied by individuals involved in the distribution of narcotics. In this case,
the Commonwealth filed a single firearms charge under § 6105(a)(1) against
Merritt, presumably because he was the only individual at the scene who
was subject to prosecution under that statute. No firearms-related offenses
were filed against either Snyder or Urbassik because they were not ineligible
to possess a firearm under § 6105(a)(1). Hence, our corpus delecti analysis
necessarily focuses on whether the Commonwealth proved, by a
preponderance of the evidence, a loss or a wrong resulting from Merritt’s
alleged criminal violation of § 6105(a)(1). We cannot abandon this
traditional approach to legal analysis simply because a criminal episode
occurred at a location known for drug-related activity. See
Commonwealth v. Grahame, 7 A.3d 810, 815-816 (Pa. 2010) (rejecting
preconceived, generalized justifications such as “guns follow drugs” offered
in support of protective searches and permitting such measures only where
officers articulate facts establishing individualized, objective grounds for
perceiving threats of armed violence).
The Commonwealth’s second claim asserts that the trial court erred in
requiring the prosecution to link Merritt to the criminal loss. This contention
is meritless. As we stated above, the trial court needed to determine
whether the Commonwealth proved the corpus delicti of an offense under
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§ 6105(a)(1) by a preponderance of the evidence. This assessment required
the trial court to consider whether some individual with a disqualifying
conviction possessed a firearm in violation of § 6105(a)(1). Snyder and
Urbassik could not be prosecuted under § 6105(a)(1), as neither of them
had disqualifying convictions. No charge against them under § 6105(a)(1)
could get to a jury. Logically, this confined the court’s consideration to
Merritt since he is the only individual in this case subject to prosecution
under § 6105(a)(1). Because the nature of the charged offense limited the
trial court’s analysis to whether a viable charge was filed against Merritt, the
trial court did not err in its application of the corpus delecti rule.
Order granting motion in limine affirmed. Case remanded.
Jurisdiction relinquished.
Shogan, J. joins this memorandum.
Strassburger, J. files a dissenting statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2016
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