Com. v. Brown, A. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
AARON REED BROWN,
Appellant No. 1533 MDA 2014
Appeal from the Judgment of Sentence entered August 4, 2014,
in the Court of Common Pleas of Luzerne County,
Criminal Division, at No(s): CP-40-CR-0001380-2012
BEFORE: ALLEN, LAZARUS, and PLATT*, JJ.
MEMORANDUM BY ALLEN, J.: FILED JULY 09, 2015
Aaron Reed Brown (“Appellant”) appeals from the judgment of
sentence imposed following his conviction for possession of a firearm by a
prohibited person.1 We affirm.
The trial court summarized the pertinent facts and procedural history
as follows:
On or about April 6, 2012, at approximately 6:12 p.m.,
[Appellant] was the subject of a traffic stop by members of the
Pennsylvania State Police (PSP) conducting speed enforcement
on Interstate 81 south of mile marker 150 in Butler Township,
Luzerne County. ... [Appellant] was operating a Chrysler 200
when he entered the radar zone of influence wherein it was
determined the vehicle was travelling at a speed of
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1
18 Pa.C.S.A § 6105(a)(1).
*Retired Senior Judge assigned to the Superior Court.
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approximately 92 miles per hour in a 65 mile per hour speed
zone. The PSP gave chase with activated lights and intermittent
siren to accomplish the traffic stop. Notwithstanding,
[Appellant] continued to travel for approximately 4/10 of a mile
before electing to stop on a narrow berm of the road, which PSP
felt placed him in danger due to the proximity of the vehicles to
traffic. [FN 1 The PSP further observed he was concerned
because the area where [Appellant] stopped was located by an
overpass which placed him at a disadvantage should the
occupant choose to flee up the embankment thereby precluding
the use of the cruiser to give chase.] The PSP testified that the
delay in stopping and failure to do so in a safer location where
the berm was wider aroused suspicion.
[The officer exited his vehicle and approached Appellant’s
vehicle, and when the occupants rolled down the windows, the
officer detected the strong odor of marijuana]. The PSP
determined the vehicle was a rental leased to the passenger
identified as Barbara Rita Tullis (Tullis). Additionally, [Appellant]
informed the PSP that he was operating the vehicle with a
suspended license.
Ultimately, the PSP obtained consent from both [Appellant]
and Tullis (as Lessor) to conduct a vehicle search. [FN 2 Tullis
executed a standard PSP written consent form authorizing the
search]. As a result of the search, the PSP discovered a purse
on the passenger side floor. When unzipped, the purse revealed
a pistol with the barrel pointing in the Trooper’s direction. The
gun was eventually seized and identified as a semi-automatic .40
caliber Springfield Armory pistol. A magazine contained therein
was located with 10 rounds of ammunition. Neither party
possessed a concealed carry permit.
[Appellant] acknowledged the gun did not belong to Tullis
and noted it was acquired by him in the weeks prior to the stop.
Additionally, [Appellant] conceded it had taken a period of time
to pull over because he was secreting the gun in Tullis’ purse.
In addition to the verbal exchange at the scene, [FN3
[T]he traffic stop was video recorded and the same was admitted
into evidence.] [Appellant] spoke to the PSP while transported to
the Hazelton PSP Barracks. Upon arrival, he received Miranda
warnings and thereafter provided a written statement. The
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document reveals [Appellant] admitted the gun was acquired by
and belonged to him.
Trial Court Opinion, 11/25/14, at 1-2 (one footnote omitted).
Appellant was subsequently charged with possession of a firearm by a
prohibited person. On January 16, 2013, Appellant filed a suppression
motion, and the trial court conducted a hearing on April 5, 2013. By opinion
and order dated July 19, 2013, the trial court denied Appellant’s suppression
motion.
A jury trial commenced on April 22, 2014, after which the jury
rendered its guilty verdict. On August 4, 2014, the trial court sentenced
Appellant to a term of imprisonment of 3 to 6 years. Appellant filed a notice
of appeal on August 28, 2014.
Appellant raises three issues for our review:
Whether the trial court erred by denying Appellant’s
motion to suppress where the Appellant had a reasonable
expectation of privacy in the vehicle, and neither the Appellant
nor his passenger, knowingly, voluntarily, or intelligently
consented to the search of the vehicle? All evidence resulting
from such statements should have been suppressed as fruit of
the poisonous tree.
Whether the trial court erred by denying the Appellant’s
motion to suppress where the Appellant’s statements at the
scene were the result of a custodial interrogation and given in
the absence of Miranda warnings? All evidence resulting from
such statements should have been suppressed as fruit of the
poisonous tree.
Whether the Commonwealth failed to present evidence
sufficient to establish beyond a reasonable doubt that Appellant
knowingly possessed, used, controlled, sold, transferred or
manufactured a firearm in this Commonwealth in violation of 18
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Pa.C.S.A. § 6105(a)(1)? A conviction cannot be sustained on
the Appellant’s statements alone where the Commonwealth
failed to independently establish the corpus delicti of the crime
charged.
Appellant’s Brief at 2.
Our scope and standard of review 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).
Here, Appellant argues that the trial court erred in concluding that he
had no expectation of privacy in the car or in the contents of the bag found
underneath the passenger seat, and therefore the trial court erred in
denying his suppression motion. Appellant’s Brief at 13-15. Before we
address Appellant’s claim that the denial of suppression was improper, we
must determine whether Appellant had standing to suppress the search, and
a reasonable expectation of privacy in the vehicle. Commonwealth v.
Caban, 60 A.3d 120, 126 (Pa. Super. 2012).
“[U]nder Pennsylvania law, a defendant charged with a possessory
offense has standing to challenge a search.” Id. quoting Commonwealth
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v. Perea, 791 A.2d 427, 429 (Pa. Super. 2002). Thus, Appellant, who was
charged with a possessory crime, had standing to raise a suppression
challenge. However, “[a] defendant must separately establish a legitimate
expectation of privacy in the area searched or thing seized.”
Commonwealth v. Burton, 973 A.2d 428, 435 (Pa. Super. 2009).
“[U]nder both our state and the federal constitutions, a defendant cannot
prevail upon a suppression motion unless he demonstrates that the
challenged police conduct violated his own, personal privacy interests.”
Commonwealth v. Powell, 994 A.2d 1096, 1108 (Pa. Super. 2010)
quoting Commonwealth v. Millner, 888 A.2d 680, 692 (Pa. 2005). “The
constitutional legitimacy of an expectation of privacy is not dependent on the
subjective intent of the individual asserting the right but on whether the
expectation is reasonable in light of all of the surrounding circumstances.”
Caban, 60 A.3d at 126. In order to succeed on his suppression challenge,
Appellant was required to demonstrate that he had a reasonable expectation
of privacy in the vehicle and/or an expectation of privacy in the bag found
under the passenger seat.
The trial court concluded that Appellant lacked an expectation of
privacy in the vehicle, explaining:
Corporal Donnini identified the female passenger as
Barbara Tullis (Tullis) and the male passenger as Aaron Brown,
[Appellant].
After processing information through the computer in his
cruiser, Corporal Donnini learned that [Appellant’s] operating
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privileges were suspended and that he had prior arrests relating
to possession of marijuana.
...
During the stop, Corporal Donnini learned that the Chrysler
was a rental vehicle through Enterprise rental car company
(Enterprise), which was the registered owner.
Tullis was the renter of the Chrysler and presented the
rental agreement to Corporal Donnini.
The rental agreement provided for no authorized drivers
but Tullis.
Corporal Donnini requested that [Appellant] and [Tullis]
exit the Chrysler. Each was “patted down” but not cuffed nor
arrested.
Corporal Donnini asked [Appellant] and Tullis about the
odor of marijuana.
[Appellant] denied smoking marijuana and attributed any
odor to being in the company of others smoking it during a
previous stop in Wilkes-Barre while travelling to Harrisburg
currently.
Corporal Donnini was suspicious of [Appellant’s]
explanation particularly in light of the delay in stopping the
Chrysler.
Corporal Donnini asked [Appellant] for consent to search
the vehicle. [Appellant] gave consent.
Corporal Donnini then requested consent to search the
Chrysler from Tullis, who rented the car, and explained the
reasons for his request.
Corporal Donnini explained to Tullis that, as his other
option, he would apply for a search warrant and take them back
to the PSP barracks.
Based on all the facts and circumstances, Corporal Donnini
believed that he would be able to secure a search warrant.
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Tullis gave verbal consent to search the Chrysler and
signed a State Police Waiver of Rights and Consent to Search
standardized form consenting to the search in writing.
Corporal Donnini partially explained the form to Tullis.
Corporal Donnini told Tullis to read the form before signing
it.
Corporal Donnini verified with Tullis that she read and
understood the consent form, and explained that the consent was
voluntary and that she could stop the search at any time.
...
The operator of a vehicle does not have a legitimate
expectation of privacy in said vehicle where it is not registered in
his name and there is no evidence that the vehicle is being
operated with the consent of the registered owner.
Commonwealth v. Burton, 973 A.2d 428 (Pa. Super 2009).
The operator of a rental car does not have a legitimate
expectation of privacy in said vehicle where he is not an
authorized driver and the rental agreement has expired.
Commonwealth v. Jones, 874 A.2d 108 (Pa. Super. 2005).
Instantly, [Appellant] has failed to demonstrate a legitimate
expectation of privacy in the Chrysler where: 1. he was operating
the vehicle unlawfully with a suspended licensed; 2. he did not
own the vehicle; 3. he was not authorized to operate the vehicle
by the registered owner (Enterprise); 4. the rental agreement
was breached when he began operating the vehicle as an
unauthorized operator; and 5. the nature of the connection
between [Appellant], the vehicle, and Tullis – the authorized
operator and renter of the vehicle – is unclear and undeveloped
in the record.
Accordingly, [Appellant] has failed to establish standing to
challenge the search of the Chrysler.
Furthermore, [Appellant] has failed to demonstrate a
legitimate expectation of privacy in the purse found in the
Chrysler.
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Accordingly, [Appellant] has failed to establish standing to
challenge the search of the purse.
The consent by Tullis to search the Chrysler was knowingly,
voluntarily, and intelligently given and therefore valid.
Trial Court Findings of Fact and Conclusions of Law, 7/19/13, at 2-5.
We agree with the trial court that Appellant failed to establish a
constitutional expectation of privacy in the rental automobile given that,
although Appellant was the operator of the vehicle, he was not the named
lessee, and he was not an authorized driver. See Jones, 874 A.2d at 112(2005). At the suppression hearing, Appellant did not present any evidence
about his relationship with Ms. Tullis, or that he occupied and drove the
vehicle with the authorization or permission of Enterprise, the registered
owner. Nor did Appellant demonstrate that he had any other ownership
interest in the vehicle. “A defendant moving to suppress evidence has the
preliminary burden of establishing standing and a legitimate expectation of
privacy. … The determination [as to] whether [a] defendant has met this
burden is made upon evaluation of the evidence presented by the
Commonwealth and the defendant.” Powell, 994 A.2d at 1103-1104
quoting Burton, 973 A.2d at 435 (Pa. Super.2009) (en banc). Here, given
the deficit of evidence that Appellant had a legitimate expectation of privacy
in the vehicle or the contents of the bag containing the firearm, we find no
abuse of discretion in the trial court’s denial of his suppression motion.
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Furthermore, even if Appellant did establish a reasonable expectation
of privacy in the bag, the search was permissible based on the consent of
Ms. Tullis, who authorized the search of the vehicle.
[T]he Commonwealth bears the burden of establishing that
a consent is the product of an essentially free and unconstrained
choice—not the result of duress or coercion, express or implied,
or a will overborne—under the totality of the circumstances. The
inquiry is ultimately objective, and employs a reasonable person
test presupposing an innocent person. The test for the validity
of a consent to search is the same for both the Fourth
Amendment and Article I, Section 8, i.e., that the consent is
given voluntarily.
In reviewing the totality of the circumstances,
Pennsylvania courts have considered a variety of factors to
assess the voluntariness of the consent, including the length and
location of the detention; whether there were any police abuses,
physical contact, or use of physical restraints; any aggressive
behavior or any use of language or tone by the officer that were
not commensurate with the circumstances; whether the
questioning was repetitive and prolonged; whether the person
was advised that he or she was free to leave; and whether the
person was advised of his or her right to refuse to consent. No
one factor in the voluntariness inquiry is controlling.
Commonwealth v. Caban, 60 A.3d 120, 130-31 (Pa. Super. 2012)
(citations and internal quotations omitted).
Here, the record contains no evidence that Corporal Donnini coerced
Ms. Tullis’s consent. The investigatory detention took place in an open
location, on an exit ramp of a public highway, during the evening, at 6:12
p.m. Ms. Tullis testified that she was not detained, and there is nothing to
indicate that the officer engaged in any aggressive or threatening behavior,
made physical contact with Ms. Tullis other than to pat her down for his
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safety, or used any physical restraints. While Appellant maintains that Ms.
Tullis’s consent was not voluntary and knowing, Ms. Tullis was informed that
she had the right to refuse consent, and she testified that she understood
the language in the “Waiver of Rights and Consent to Search” form which
stated that she had a right to refuse consent. N.T., 4/5/13, at 58-59.
Accordingly, having weighed all of the relevant factors, we find no error in
the trial court’s determination that Ms. Tullis’ consent to search was
voluntary and that Corporal Donnino’s search of the vehicle was
constitutionally permissible.2
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2
We additionally note that Corporal Donnini’s search of the interior of Ms.
Tullis’ purse located on the floor on passenger side of the vehicle was lawful.
In Commonwealth v. Yedinak, 676 A.2d 1217, 1220 (Pa. Super. 1996),
we explained:
It is well established that the government may search a vehicle
without a warrant or probable cause if the owner of the vehicle
voluntarily consents to the search. Furthermore, the scope of a
search is generally limited to the areas where the object of the
search may be found, but the party consenting to a search may
restrict authorization to defined areas. The standard for
measuring the scope of a suspect's consent under the Fourth
Amendment is that of objective reasonableness-what would the
typical reasonable person have understood by the exchange
between the officer and the suspect?
In Yedinak, the officer, during a traffic stop, suspected the driver to
be under the influence of a controlled substance and smelled the strong odor
of marijuana emanating from the vehicle. We reasoned that given the
officer’s suspicions that the suspect was under the influence, after the
suspect provided general consent to a search of his vehicle, “the officers
were free to search any containers within the vehicle that could reasonably
contain narcotics.” Yedinak, 676 A.2d at 1220.
(Footnote Continued Next Page)
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In his second issue, Appellant argues that his statement to Corporal
Donnino that the gun belonged to him should have been suppressed because
he was in custody at the time the statement was made, and had not been
provided with Miranda warnings. Appellant’s Brief at 16-19.
“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).
The standard for determining whether an encounter with the
police is deemed custodial is an objective one based on a totality of
the circumstances with due consideration given to the reasonable
impression conveyed to the person interrogated.
***
_______________________
(Footnote Continued)
Similarly, in the present case, given that Corporal Donnino detected
the strong smell of marijuana when he approached the vehicle, he was free
to search the purse after Ms. Tullis provided consent to search the vehicle,
and such search was reasonable under the circumstances.
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Indeed, 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.
Among the factors the court utilizes in determining, under the
totality of the circumstances, whether the detention became so
coercive as to constitute the functional equivalent of a formal arrest
are: the basis for the detention; the duration; the location; whether
the suspect was transferred against his will, how far, and why;
whether restraints were used; the show, threat or use of force; and
the methods of investigation used to confirm or dispel suspicions.
In re B.T., 82 A.3d 431, 441-442 (Pa. Super. 2013) (citations omitted).
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).
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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”).
Here, Corporal Donnini testified that when he initiated the traffic stop,
he illuminated his emergency lights and siren. N.T., 4/5/13, at 6-7. Upon
stopping the vehicle, the police officer approached the vehicle and detected
a strong odor of marijuana. Id. at 9. The officer described his interaction
with Appellant and Ms. Tullis as “a very nonchalant encounter, [they] didn’t
appear nervous, very laid back, fairly cordial.” Id. at 10. Appellant
informed the officer that his license had been suspended, and the officer
verified Appellant’s and Ms. Tullis’s identification information using the
computer in his police cruiser, which revealed that Appellant had previous
convictions for possession of marijuana. Id. at 9-10. Corporal Donnini then
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asked Appellant and Ms. Tullis to exit the vehicle, and obtained their consent
to search the vehicle. Id. at 14-15. Corporal Donnini testified that he did
not restrain or handcuff either Appellant or Ms. Tullis, although he did
conduct a pat-down for his own safety. Id. at 20-21. Corporal Donnini then
conducted a search of the vehicle, during which he located the firearm in a
purse on the floor. Id. at 23. Corporal Donnini then returned to Appellant
and Ms. Tullis and testified as follows regarding their exchange:
Corporal Donnini: I ... walked back to [Appellant] and Ms.
Tullis and asked them if either of them
had a ... concealed weapons permit ... to
have the weapon. At this time, I didn’t
know it was ... an illegal firearm. If Ms.
Tullis would have had a concealed
weapon permit, then there would have
been no problem. Neither of them had a
concealed weapons permit.
***
I handcuffed [Appellant]. He stated that,
you know, the gun wasn’t Barbara’s and
he owned up and took ownership for it.
Then I went back and secured the pistol.
Assistant District Attorney: To the best of your recollection, what
exactly did he say to you with regard to
his ownership of the gun?
Corporal Donnino: I asked whose is it – or do either of you
have a permit? They both indicated that
they hadn’t. He was kind of hymning
[sic] and hawing, saying no, that’s not
hers. It’s not hers. I said, you know,
are you taking the blame for it? He
indicated yes, that it was his.
N.T., 4/5/13, at 23.
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Based on the foregoing, Appellant argues that he was subjected to a
custodial interrogation when Corporal Donnino asked him if he owned the
gun, after he was handcuffed, and without first providing him with Miranda
warnings. We conclude, however, that even if Appellant was subjected to a
custodial interrogation when he was handcuffed by Corporal Donnino and
asked whether he was admitting to ownership of the handgun, Appellant is
not entitled to suppression.
In Commonwealth v. DeJesus, 787 A.2d 394 (Pa. 2001) abrogated
on other grounds, Commonwealth v. Cousar, 593 Pa. 204, 928 A.2d 1025(2007), without administering Miranda warnings, police officers subjected
the appellant to a custodial interrogation, during which the appellant made
incriminating statements. However, our Supreme Court concluded that even
if the defendant was subjected to a custodial interrogation without having
been provided with Miranda warnings, this error was cured by the fact that
the defendant was subsequently given Miranda warnings and signed a
Miranda waiver form, after which the defendant permitted the police to
record his confession. Accordingly, the Court concluded in DeJesus that,
although the police officer’s initial interrogation violated Miranda, that did
not invalidate the defendant’s subsequent waiver of his rights and ensuing
confession. DeJesus, 787 A.2d at 405-407. See also Commonwealth v.
Schwing, 964 A.2d 8, 13 (Pa. Super. 2008) (even if the facts in DeJesus
would initially afford the defendant relief, he failed to prove that the police
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officer’s conduct tainted and invalidated his subsequent waiver of rights and
statement since after the administration of Miranda warnings was
completed, the officer then reviewed with the defendant his prior
statements, which again were conducted and carried out upon videotaped
interview); Commonwealth v. Charleston, 16 A.3d 505 (Pa. Super.
2011) (failure to deliver Miranda warnings prior to interrogation did not
invalidate incriminating statements made by the defendant after subsequent
receipt of Miranda warnings and waiver thereof).
Similarly, in this case, the record reflects that following Appellant’s
arrest at the scene, he was transported to the State Police barracks where
he was provided with Miranda warnings, after which Appellant informed the
police that the reason it had taken him so long to pull over was because he
was trying to secrete the gun in Ms. Tullis’ purse. N.T., 4/5/13, at 24.
Moreover, Appellant was provided with written Miranda warnings, at the
bottom of which Appellant handwrote “it’s mine, the gun in [the] vehicle.”
Id. at 35-37. In reliance on DeJesus, we conclude that Appellant’s
subsequent confession at the police station after he was provided with
Miranda warnings effectively cured any illegality that may have occurred
when Corporal Donnino initially asked Appellant if he was admitting to
ownership of the gun at the time of his arrest. Appellant’s second
suppression challenge thus fails.
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In his third issue, Appellant argues that the Commonwealth failed to
present evidence sufficient to establish beyond a reasonable doubt that
Appellant knowingly possessed a firearm, because a conviction cannot be
sustained on the Appellant’s statements alone where the Commonwealth
failed to independently establish the corpus delicti of the crime charged.
Appellant’s Brief at 19-21. We find however, that Appellant’s corpus delicti
claim is waived.
“The well-established corpus delicti rule provides that a criminal
conviction may not stand merely on the out[-]of[-]court confession of one
accused, and thus a case may not go to the fact[-]finder where independent
evidence does not suggest that a crime has occurred. This rule is rooted in
the hesitancy to convict a person of a crime solely on the basis of that
person’s statements.” Commonwealth v. Cuevas, 61 A.3d 292, 295 (Pa.
Super. 2013) (citations and internal quotations omitted). “The corpus delicti
rule is two-tiered; it must first be considered as a rule of evidentiary
admissibility using a prima facie standard, and later, under a beyond a
reasonable doubt standard, as one of proof for the fact-finder’s consideration
at the close of the case.” Id. citing Commonwealth v. Reyes, 381-82,
681 A.2d 724, 727 (Pa. 1996).
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. In
this first phase of the rule's application, the court must
determine whether the Commonwealth has proven the corpus
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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.
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 proven 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....
[T]he law of Pennsylvania continues to require that the
Commonwealth prove the existence of the corpus delicti beyond
a reasonable doubt before the jury may consider the defendant’s
confession.
Commonwealth v. Chambliss, 847 A.2d 115, 119-120 (Pa. Super. 2004)
(citations omitted)
In Chambliss, this Court explained, however, that with regard to the
first prong of a corpus delicti challenge as to the evidentiary admissibility of
the challenged confession, where the defendant does not object to the
Commonwealth’s admission of the challenged confession during the
Commonwealth’s presentation of the evidence, the defendant waives such a
challenge to the admissibility of the confession for purposes of appeal.
Chambliss, 847 A.2d at 120. Here, as the trial court observed: “A review
of the trial record demonstrates [that Appellant] did not object to or
otherwise raise any issue with respect to a violation of the corpus delicti
rule, thereby resulting in waiver.” Trial Court Opinion, 11/25/14, at 5. Our
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review of the record supports the trial court’s determination that Appellant
failed to raise a challenge to the evidentiary admissibility of his confession
during the Commonwealth’s presentation of the evidence at trial, and
therefore this claim is waived.
Appellant counters that he has preserved his claim pertaining to the
second phase of the corpus delicti rule, which provides that after a
confession has already been admitted into evidence, 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.
However, Appellant fails to direct this Court, nor are we able to discern,
where in the record he raised a corpus delicti challenge prior to jury
deliberation, in order to preserve such a claim.
We recognize that in Chambliss, we explained that counsel’s failure to
raise a timely, first-phase corpus delicti challenge to the admissibility of the
confession did not prevent counsel from invoking the second-phase of the
rule, prior to the factfinder’s deliberation. Here, however, the record does
not reflect that Appellant’s counsel, any time during trial, identified a corpus
delicti challenge for the trial court’s consideration.3 Accordingly, Appellant’s
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3
Compare with Chambliss, supra, where the appellant failed to raise a
corpus delicti claim at the time the Commonwealth presented the challenged
evidence to the jury, but subsequently raised a corpus delicti claim prior to
the case being submitted to the factfinder for deliberations, thereby
preserving his claim for appeal.
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J-S41007-15
corpus delicti claim is waived for purposes of appeal. See Pa.R.A.P. 302(a)
(Issues not raised to the trial court are waived and cannot be raised for the
first time on appeal); Commonwealth v. Brown, 701 A.2d 252, 254 (Pa.
Super. 1997) (“In order to preserve an issue for review, a party must make
a timely and specific objection.”).
For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/9/2015
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