Com. v. Harper, D. ( 2020 )


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  • J-S03020-20
    
    2020 PA Super 77
    COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                         :
    :
    :
    DAWIAN HARPER                         :
    :
    Appellant             :   No. 711 WDA 2019
    Appeal from the PCRA Order Entered April 29, 2019
    In the Court of Common Pleas of Allegheny County Criminal Division
    at No(s): CP-02-CR-0009765-2016
    BEFORE:      McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
    OPINION BY McCAFFERY, J.:                            FILED MARCH 30, 2020
    Dawian Harper (Appellant) appeals from the order entered in the
    Allegheny County Court of Common Pleas, denying his timely petition for
    relief under the Post Conviction Relief Act1 (PCRA).       Appellant avers the
    court erred in denying his claims that trial counsel was ineffective for: failing
    to seek suppression of Appellant’s inculpatory statements on both Miranda2
    and corpus delicti grounds; and failing to object to a police officer’s lay
    testimony that Appellant’s gunshot wound was self-inflicted.       After careful
    review, we reverse the order and remand for a new trial.
    Appellant was charged with persons not to possess firearms and
    *   Retired Senior Judge assigned to the Superior Court.
    1   42 Pa.C.S.§§ 9541-9546.
    2   Miranda v. Arizona, 
    384 U.S. 436
     (1966).
    J-S03020-20
    firearms not to be carried without a license 3 after he made incriminating
    statements, on May 5, 2016, to City of Pittsburgh Police Officer Patrick
    Moffatt.    We note that Appellant’s attorney, Assistant Public Defender Lisa
    Caulfield (Trial Counsel),4 did not seek to suppress the statements.
    This matter proceeded to a non-jury trial on February 8, 2017.    The
    Commonwealth presented the testimony of Officer Moffatt, which we review
    in detail as follows. Around 2:30 a.m. on May 5, 2016, Officer Moffatt and
    his partner, Detective Klaczak,5 responded to a report of a shooting in the
    Hill District section of Pittsburgh. N.T. Trial, 2/8/17, at 10-11. When they
    arrived, there was no shooting in progress and no one present was involved
    in the shooting. Id. at 21. However, the police recovered three .40-caliber
    Smith & Wesson casings and nine 9-millimeter casings from the scene. Id.
    at 11.
    Officer Moffatt was contacted by Sergeant Brian Schmitt, who was at
    the hospital, to go to the hospital to speak with Appellant. N.T. Trial at 13.
    We note Officer Moffatt was in uniform. N.T. Preliminary H’rg, 8/10/16, at 6.
    When Officer Moffatt arrived, Appellant was in a hospital bed and “had
    received some [medical] treatment.”          Id. at 14, 25.     Officer Moffatt
    observed Appellant had a “gunshot wound” in his knee area. Id. at 14.
    3   18 Pa.C.S. §§ 6105(c)(7), 6106(a)(1).
    4 At the time of the 2017 trial, Trial Counsel was named Lisa Phillips, but by
    the time of 2019 PCRA hearing, she was known as Lisa Caulfield.
    5   Detective Klaczak’s first name is not apparent from the record.
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    At trial, Officer Moffatt relayed that Sergeant Schmitt told him how
    Appellant was injured. N.T. Trial at 15. However, the trial court struck this
    testimony on hearsay grounds, and thereafter the Commonwealth asked
    Officer Moffatt what he observed.        Id.   The officer responded that he
    believed, based on his experience and his observation of “the angle and
    location” of the wound, that Appellant had “a self-inflicted gunshot wound.”
    Id. at 15. Officer Moffatt further stated the wound was “[f]rom the top of
    the knee down towards the foot.” Id. at 16. Trial Counsel failed to object to
    this testimony. See id.
    Officer Moffatt further testified: “Upon my arrival . . . I told [Appellant]
    that I was going to be performing a gunshot test on his hands to see if he
    had recently fired a gun.”6 N.T. Trial at 14. Appellant initially stated he had
    never fired a gun. Id. at 16. Officer Moffatt did not, in fact, have a gunshot
    residue test kit, but instead performed a “fake test” by swabbing Appellant’s
    hand with a Q-tip and saline. Id. at 19, 25-26. Appellant then stated he
    fired a handgun two days earlier at a gun range. Id. at 16. After Officer
    Moffatt performed the “test” on Appellant’s hands, he told Appellant he
    would also test his pants for “any residual gunshot residue,” and if his
    “story” about firing a gun two days earlier were true, “it would not be
    consistent with also finding gunshot residue on his pants.” Id. at 17, 27. At
    6 Detective Moffatt further confirmed he had told Appellant he would perform
    the test, rather than ask for permission to do so: “[W]hen I was preparing to
    perform the test, [Appellant] asked what I was doing. I told him it was a
    gunshot residue test[.]” N.T. Trial at 16.
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    that point, Appellant stated “he may have shot himself” when he was
    producing his gun because two men were shooting. Id.
    At that time, Sergeant Schmitt, who was also present, advised
    Appellant of his Miranda rights. N.T. Trial at 17. Following the Miranda
    warnings, Appellant admitted to having a .40-caliber pistol on his person
    that night.    Id. at 18.    He stated he heard shooting and saw “two guys
    shooting,” brandished his gun out of fear for his safety, fired more than
    once, and may have shot himself. Id. at 18, 27-28, 30. Appellant then told
    the officers he fled on foot and discarded his gun before getting a ride to the
    hospital. Id. at 30.
    At trial, City of Pittsburgh Police Detective Michael Flynn also testified
    for the Commonwealth. He stated that on June 17, 2016, approximately a
    month and a half after the shooting, he and Detective Fallert7 interviewed
    Appellant at the police station. N.T. Trial at 33, 35. The detectives “briefed”
    Appellant on what he had previously told Sergeant Schmitt, but Appellant
    stated Sergeant Schmitt was lying, denied having a gun on the night of the
    shooting, and stated that any positive gunshot residue test may have been
    due to his firing a gun at a firing range. Id. at 33-34.
    No firearm was recovered. There was no evidence at trial that anyone
    observed the shooting or that Appellant was in possession of a handgun.
    The parties stipulated that Appellant had a prior conviction that rendered
    7   Detective Fallert’s first name is not apparent from the record.
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    him ineligible to possess a firearm. Id. at 20. Appellant did not testify or
    present any evidence.
    The trial court found Appellant guilty of both firearm possession
    offenses. On June 12, 2017, the court imposed a sentence of three to six
    years’ imprisonment, to be followed by three years’ probation.      Appellant
    filed a post-sentence motion, which was denied. Appellant appealed to this
    Court, but discontinued the appeal on March 1, 2018. Commonwealth v.
    Harper, 1718 WDA 2017 (Notice of Discontinuance of Action) (Pa. Super.
    Mar. 1, 2018).
    On July 31, 2018, Appellant filed the underlying PCRA petition, pro se.
    The PCRA court appointed present counsel to represent him. Counsel filed
    an amended PCRA petition, averring Trial Counsel was ineffective for: not
    seeking suppression of the statements Appellant made at the hospital, on
    both Miranda and corpus delicti grounds; and not objecting to Officer
    Moffatt’s testimony that Appellant’s gunshot wound was self-inflicted.
    The PCRA court conducted a hearing on April 25, 2019. Officer Moffatt
    testified that his purpose for conducting the fake gunpowder “test” was to
    “see if [he] could get a reaction from [Appellant] about his saying that he
    hadn’t shot a gun.” N.T. PCRA H’rg, 4/25/19, at 10. Trial Counsel testified,
    without further explanation, that she never considered filing a suppression
    motion and she believed there was no basis for a corpus delicti challenge to
    the admission of Appellant’s statement.      Id. at 22.   Trial Counsel also
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    testified she did not remember whether she considered objecting to Officer
    Moffatt’s trial testimony that Appellant’s wound was self-inflicted. Id.
    The PCRA court denied Appellant’s petition on April 29, 2019.
    Pertinently, the court found: (1) Appellant was not in custody when he made
    his initial statements to Officer Moffatt at the hospital, and thus any
    suppression motion based on Miranda would have been meritless; (2)
    Officer Moffatt properly testified as to his observation that Appellant’s
    gunshot wound was self-inflicted; and (3) there would have been no merit to
    a corpus delicti objection, because the report to police of shots fired,
    recovery of ballistic evidence, and Appellant’s gunshot wound together
    formed “substantial evidence” that a crime was committed. PCRA Ct. Op.,
    7/3/19, at 10-12, 14.
    Appellant timely appealed and complied with the PCRA court’s order to
    file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
    Appellant presents three issues for our review:8
    1. Was trial counsel ineffective in failing to file a motion to
    suppress inculpatory oral statements made by Appellant as he
    was questioned, without Miranda warnings, in his hospital bed
    after receiving treatment for a gunshot wound where police had
    formed the belief that Appellant’s gunshot wound was self-
    inflicted and where the police officers engaged in a ruse
    designed to elicit an incriminating response?
    2. Was trial counsel ineffective in failing to object to the
    admission of Appellant’s inculpatory statements on the basis of
    the Corpus Delicti Rule where, absent Appellant’s inculpatory
    statement, the corpus delicti for weapon possession offenses
    8   We have reordered Appellant’s issues for ease of disposition.
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    could not be made and where the only evidence that Appellant’s
    wound was a self-inflicted gunshot wound was the detective’s
    conclusory, unqualified lay opinion testimony?
    3. Was trial counsel ineffective in failing to object to the opinion
    testimony of a police detective that Appellant’s wound was a
    self-inflicted gunshot wound where such opinion is within the
    realm of a medical/forensic expert and where the detective was
    not qualified to render such an opinion?
    Appellant’s Brief at 3.
    We first note the relevant standard of review:
    [O]ur scope of review “is limited to the findings of the PCRA
    court and the evidence on the record of the PCRA court’s
    hearing, viewed in the light most favorable to the prevailing
    party.” . . . We defer to the PCRA court’s factual findings and
    credibility determinations supported by the record. In contrast,
    we review the PCRA court’s legal conclusions de novo.
    Commonwealth v. Becker, 
    192 A.3d 106
    , 112 (Pa. Super. 2018) (citation
    omitted), appeal denied, 
    200 A.3d 11
     (Pa. 2019).
    With respect to a claim of ineffective assistance of counsel,
    [c]ounsel is presumed effective, and in order to
    overcome that presumption a PCRA petitioner must
    plead and prove that: (1) the legal claim underlying the
    ineffectiveness claim has arguable merit; (2) counsel’s
    action or inaction lacked any reasonable basis designed
    to effectuate petitioner’s interest; and (3) counsel’s
    action or inaction resulted in prejudice to petitioner.
    The petitioner must plead and prove all three prongs, and the
    failure to establish any one prong warrants denial of an
    [ineffectiveness] claim.
    
    Id. at 112-13
     (citations omitted).
    In his first issue, Appellant avers the PCRA court erroneously
    concluded he was not subjected to a custodial interrogation when he made
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    his initial statements, and thus further erred in denying his claim that Trial
    Counsel was ineffective for not seeking suppression of the statements.
    Appellant maintains: (1) he was in a hospital room; (2) he was questioned
    by two police officers in uniform9 who had already formed the belief his
    wound was self-inflicted; (3) he was subjected to “a ruse clearly designed to
    pressure [him] into incriminating himself,” Appellant’s Brief at 10, 14, (4)
    the “custodial nature of the encounter was strengthened by” Officer Moffatt’s
    directive — rather than a request — to perform a gunshot residue test, id. at
    13-14; and (5) no reasonable person in his situation would feel he was free
    to leave or refuse the gunshot residue test. Finally, Appellant asserts there
    was no basis for, and he was prejudiced by, Trial Counsel’s failure to seek
    suppression of his statements. We agree.
    A petitioner claiming that counsel was ineffective for failing to move
    for suppression of evidence “must establish that there was no reasonable
    basis for not pursuing the suppression claim and that if the evidence had
    been suppressed, there is a reasonable probability the verdict would have
    been more favorable.” Commonwealth v. Arch, 
    654 A.2d 1141
    , 1143 (Pa.
    Super. 1995) (citation omitted). This Court has stated:
    If an individual is not advised of his Miranda rights prior to
    custodial interrogation by law enforcement officials, evidence
    obtained through the interrogation cannot be used against him.
    9While the preliminary hearing transcript showed that Officer Moffatt was in
    uniform, N.T. Preliminary H’rg at 6, it is not apparent from the record
    whether Sergeant Schmitt was likewise in uniform.        Nevertheless, the
    Commonwealth does not refute Appellant’s claim that he was.
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    “[I]n order to trigger the safeguards of Miranda, there must be
    both custody and interrogation.[“] . . .
    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.”
    Commonwealth v. Cruz, 
    71 A.3d 998
    , 1003 (Pa. Super. 2013) (citations
    omitted).
    The standard is an objective one, with due consideration given to
    the reasonable impression conveyed to the person being
    interrogated. A person is considered to be in custody for the
    purposes of Miranda when the officer’s show of authority leads
    the person to believe that [he] was not free to decline the
    officer’s request, or otherwise terminate the encounter.
    Commonwealth v. McCarthy, 
    820 A.2d 757
    , 760 (Pa. Super. 2003)
    (citations omitted).
    The court must consider the totality of circumstances, including
    factors such as “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.”
    Cruz, 
    71 A.3d at 1004
     (citation omitted).
    Appellant relies on this Court’s 1993 decision in Commonwealth v.
    Whitehead, 
    629 A.2d 142
     (Pa. Super. 1993), in which we stated:
    [T]he Miranda safeguards come into play whenever a person in
    custody is subjected to either express questioning or its
    functional equivalent. That is to say, the term “interrogation”
    under Miranda refers not only to express questioning, but also
    to any words or actions on the part of 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. The latter portion of this definition focuses
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    primarily upon the perceptions of the suspect, rather than the
    intent of the police.   This focus reflects the fact that the
    Miranda safeguards were designed to vest a suspect in custody
    with an added measure of protection against coercive police
    practices, without regard to objective proof of the underlying
    intent of the police. A practice that the police should know is
    reasonably likely to evoke an incriminating response from a
    suspect thus amounts to interrogation.
    
    Id. at 145
     (citation omitted).
    Appellant also relies on our Supreme Court’s 1972 decision in
    Commonwealth v. D’Nicuola, 
    292 A.2d 333
     (Pa. 1972). In that case, the
    defendant was found in his car following a drug overdose. Id. at 334. The
    police also found, in the car, a revolver that was recently fired.        Id.   The
    following day, the defendant was questioned by police at the hospital. Id.
    “Allegedly, the interview was conducted as a routine follow-up to the
    [defendant’s] apparent suicide attempt,” but at that time, the police knew
    the murder victim — an associate of the defendant — was missing. Id. at
    334-35. The police showed the defendant the revolver and asked whether it
    was his and if so, where he obtained it.            Id. at 335.     Upon further
    questioning, the defendant made incriminating statements concerning the
    victim.    Id.    Subsequently, the defendant sought to suppress the
    incriminating statements, arguing that Miranda warnings were required
    under the circumstances, but not given.       Id.    The trial court denied the
    suppression motion, and a jury found the defendant guilty of first-degree
    murder. Id.
    On   appeal,   our   Supreme   Court    reversed,   holding   the    police’s
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    questioning amounted to a custodial interrogation under Miranda:
    Although at the time of the hospital interview the police were
    unaware of [the victim’s] death, they definitely knew [the
    victim] was missing and that he and [the defendant] had not
    kept a previously scheduled appointment. Being aware of these
    circumstances and having found a recently fired revolver in [the
    defendant’s] automobile, it is naive to assume that when the
    police came to the hospital to question the [defendant]
    they were merely following up on an attempted suicide.
    This point is further substantiated by the fact that the
    first specific questions asked by the police concerned the
    ownership of the weapon.           If the police were merely
    investigating the attempted suicide, it would not have been
    necessary to produce the revolver which clearly was not involved
    in the attempt and question [the defendant] concerning its
    ownership. . . .
    *     *      *
    Here the police had definitely begun to focus on [the
    defendant’s] criminal behavior. This is evidenced by the fact
    that they came to the hospital uninvited, initiated the general
    discussion, specifically inquired about the revolver and followed
    up on [the defendant’s] statements about [the victim] with
    questions designed to elicit further information.            It is
    highly probable that the police were not only focusing on him
    with respect to [the victim’s] disappearance, but also
    investigating other crimes in which [the defendant] would have
    been a principal suspect[, f]or example, . . . a possible
    unauthorized use and possession of a dangerous drug[, or] a
    violation of the Uniform Firearms Act[.] In both situations, as
    well as in [the victim’s] disappearance, a suspicion of
    criminality was attached to [the defendant’s] behavior.
    D’Nicuola, 292 A.2d at 335-36 (emphases added).         The Supreme Court
    thus reversed the judgment of sentence and granted a new trial. Id. at 337.
    In finding Appellant was not subjected to any custodial interrogation,
    the PCRA court reasoned Officer Moffatt “was not questioning [Appellant,]
    but rather, he was attempting to obtain information from a gunshot victim
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    as part of his investigation as to a shooting.” PCRA Ct. Op. at 10. The court
    also emphasized Officer Moffatt’s PCRA hearing testimony that at no time did
    he tell Appellant he was in custody, and that Appellant was free to leave at
    any time, even after the officer performed the gunshot residue “test.” Id. at
    5, 6. The court thus concluded that if Trial Counsel had filed a suppression
    motion, the motion would have been denied. Id.
    Upon careful review, we conclude the PCRA court erred in finding
    Appellant was not subjected to a custodial interrogation necessitating
    Miranda warnings. First, the court did not address Appellant’s arguments,
    under D’Nicuola and Whitehead, that Officer Moffatt’s conduct was
    intended to elicit an incriminating response, rather than to impartially
    investigate Appellant’s connection, if any, to the shooting.        The court
    overlooks Officer Moffatt’s belief — evidenced by his testimony that
    Appellant suffered a self-inflicted gunshot wound — at the start of
    questioning that Appellant somehow participated in the shooting. Thus, like
    the police in D’Nicuola, Officer Moffatt initiated the interview to confirm his
    suspicion that Appellant engaged in criminal behavior. See D’Nicuola, 292
    A.2d at 335-36. Furthermore, the entire line of questioning was a ruse to
    elicit an incriminating response. At no point did Officer Moffatt ask Appellant
    whether he observed any shooting, how he was injured, or whether he was a
    victim. Instead, the officer began the meeting by commanding — and not,
    as Appellant points out, requesting — him to submit to a gunshot powder
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    residue test, ostensibly to determine whether Appellant fired a gun. When
    Appellant denied firing a gun, Officer Moffatt responded he would further test
    Appellant’s pants in order to verify Appellant’s “story”.    N.T. Trial at 17.
    Officer Moffatt knew these directives were “reasonably likely to evoke an
    incriminating response.” See Whitehead, 
    629 A.2d at 145
    . In fact, those
    directives were designed to elicit an incriminating response. Any contention
    to the contrary is not supported by the record.        Indeed, Officer Moffatt
    plainly acknowledged at the PCRA hearing that he performed a fake gunshot
    powder residue “test” “to see if [he] could get a reaction from [Appellant]
    about his saying that he hadn’t shot a gun,” and “to get [Appellant] to
    possibly incriminate himself.” N.T. PCRA H’rg at 10.
    Next, the PCRA court did not consider whether Appellant believed —
    nor whether a reasonable person in his situation would have believed — he
    was free to leave.   Instead, the court solely relied upon Officer Moffatt’s
    opinion that Appellant was free to leave.    See Cruz, 
    71 A.3d at 1003-04
    ;
    McCarthy, 
    820 A.2d at 760
    ; PCRA Ct. Op. at 5. We agree with Appellant
    that a reasonable person in this situation would feel neither free to leave or
    to refuse the gunshot residue test. See McCarthy, 
    820 A.2d at 760
    . We
    find pertinent Justice Wecht’s recent discussion, in a concurring opinion in
    Commonwealth v. Cost, 39 EAP 2018, ___ A.3d ___ (Pa. Sept. 11, 2019)
    (Wecht, J., concurring), of the practical application of our search and seizure
    jurisprudence:
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    [I]n identifying as “reasonable” a belief that few if any people
    actually hold, the governing standard protects police from the
    strictures that would apply were courts to embody the reality of
    citizen-police interactions in constitutional doctrine. This may be
    desirable as a practical matter, but we must proceed with a
    caution informed by lived experience if we are to honor the
    Fourth Amendment’s protections in the breach; constitutional
    protections cannot yield to convenient fictions. A reasonable-
    person test that seeks to balance real world experience with the
    practical need to “allocat[e] very modest weight to the possibility
    for psychological coercion arising from a fairly wide range of
    police conduct,” [Commonwealth v. Au, 
    42 A.3d 1002
    , 1008
    (Pa. 2012),] is not unwarranted, undesirable, or unattainable.
    Cost, 39 EAP 2018 at 4, ___ A.3d at ___ (Wecht, J., concurring).
    For the foregoing reasons, we conclude that under the particular facts
    presented in this matter, Appellant established his underlying claim had
    arguable merit — that, where Miranda warnings were not initially given, a
    motion to suppress his statements would have been meritorious.              See
    Becker, 192 A.3d at 112-13; Arch, 
    654 A.2d at 1143
    .          We further agree
    Trial Counsel’s failure to seek suppression of Appellant’s statements lacked a
    reasonable basis; at the PCRA hearing, she testified she never considered
    filing a suppression motion, but offered no reason why. N.T. PCRA H’rg at
    22. See Becker, 192 A.3d at 112-13; Arch, 
    654 A.2d at 1143
    . Finally, we
    agree with Appellant that he was prejudiced by Trial Counsel’s inaction,
    where the only evidence that he committed the offenses charged — gun
    possession — was Officer Moffatt’s trial testimony that Appellant admitted to
    possessing a gun on the night in question. See N.T. Trial at 17. In support,
    we reiterate there was no eyewitness testimony about the shooting. No gun
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    was recovered, and there was no evidence linking Appellant to the 12
    casings found at the scene.     Moreover, there was no testimony from any
    witness that Appellant possessed a firearm. Furthermore, in his subsequent
    June 17, 2016 statement to police, Appellant denied ever shooting a gun.
    Therefore, we reverse the PCRA court’s denial of relief on this issue, and
    remand for a new trial.
    In Appellant’s second issue, he avers the PCRA court erred in denying
    his claim that Trial Counsel was ineffective for not making a corpus delicti
    challenge to the admission of the statement made to Officer Moffatt. 10
    Appellant maintains there was no “clear evidence” of any illegal gun
    possession independent of his inculpatory statement.     Appellant’s Brief at
    24. We agree.
    We note:
    The corpus delicti rule involves the admissibility of evidence,
    which we review for an abuse of discretion. “The corpus [delicti]
    . . . rule places the burden on the prosecution to establish that a
    crime has actually occurred before a confession or admission of
    the accused connecting him to the crime can be admitted.” “The
    Commonwealth need not prove the existence of a crime beyond
    a reasonable doubt as an element in establishing the corpus
    delicti of a crime, but the evidence must be more consistent with
    a crime than with [an] accident.” The corpus delicti, or “body of
    the crime,” may be proven by circumstantial evidence.
    Our Court has explained:
    10 The corpus delicti “rule places the burden on the prosecution to establish
    that a crime has actually occurred before a confession or admission of the
    accused connecting him to the crime can be admitted.” Becker, 192 A.3d
    at 118.
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    Establishing the corpus delicti in Pennsylvania is a
    two-step process. The first step concerns the trial
    judge’s admission of the accused’s statements and
    the second step concerns the fact finder’s
    consideration of those statements. In order for the
    statement to be admitted, the Commonwealth must
    prove the corpus delicti by a preponderance of the
    evidence.     In order for the statement to be
    considered by the fact finder, the Commonwealth
    must establish the corpus delicti beyond a
    reasonable doubt.
    Commonwealth v. Murray, 
    174 A.3d 1147
    , 1153-54 (Pa. Super. 2017)
    (citations omitted).
    Appellant was charged with only firearm possession offenses; thus, the
    Commonwealth’s burden was to establish he possessed a firearm.           See
    Murray, 174 A.3d at 1153.      The PCRA court denied Appellant’s claim as
    follows:
    In the instant case, there was substantial evidence that a crime
    was committed without the confession of [Appellant]. There was
    a call reporting shots were fired, ballistic evidence was
    recovered, and [Appellant], as well as another man, were
    admitted to the hospital for gunshot wounds. All that corpus
    delicti requires is that the Commonwealth have evidence that a
    crime occurred other than the confession, before introducing any
    statements made by [Appellant]. The purpose and policy of
    corpus delicti was not aggrieved by the outcome in this case.
    PCRA Ct. Op. at 14.
    We disagree with the PCRA court’s conclusions.    We emphasize that
    none of the evidence cited by the court, alone, supported a finding that
    Appellant himself possessed a gun. There was no evidence anyone observed
    Appellant possessing a gun, no evidence linked him to the casings found at
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    the scene, and no gun was recovered. Moreover, there was not a scintilla of
    evidence connecting Appellant to the scene of the underlying shooting, the
    casings found, or the particular shooting itself.       A gunshot wound alone
    cannot substitute for evidence of an illegal shooting. There was simply no
    nexus established connecting Appellant to the “evidence” cited by the PCRA
    court and the body of the crime.           Instead, the only evidence of gun
    possession was, as discussed above, Officer Moffatt’s testimony that
    Appellant admitted to carrying a gun on the night in question. Accordingly,
    there    was   arguable   merit   to   Appellant’s   underlying   claim—that   the
    Commonwealth did not establish the corpus delicti beyond a reasonable
    doubt, and thus evidence of Appellant’s statement should been precluded.
    See Becker, 192 A.3d at 102; Murray, 174 A.3d at 1153.
    Furthermore, Appellant established there was no reasonable basis for
    Trial Counsel’s failure to make a corpus delicti challenge.         At the PCRA
    hearing, Trial Counsel testified she “didn’t believe there was a basis for” a
    corpus delicti claim, but provided no explanation for her conclusion.          See
    Becker, 192 A.3d at 102; N.T. PCRA H’rg at 22. Additionally, for the same
    reasons discussed in his Miranda-based claim, Appellant has shown he was
    prejudiced by the admission of Officer Moffatt’s testimony; but for this
    testimony, there was no evidence Appellant possessed a firearm.                See
    Becker, 192 A.3d at 102
    In Appellant’s final issue, he avers the PCRA court erred in finding Trial
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    J-S03020-20
    Counsel not ineffective for failing to object to Officer Moffatt’s testimony that
    Appellant’s gunshot wound was self-inflicted. Appellant reasons that Officer
    Moffatt could have testified, as a lay witness, about his observation that
    Appellant had a wound in his knee. However, Appellant claims, an opinion
    that Appellant sustained a self-inflicted gunshot wound would encompass not
    only a medical diagnosis, but also forensic science. Appellant emphasizes no
    foundation was laid for this testimony and Officer Moffatt was not qualified
    as an expert. He further avers he was prejudiced by Trial Counsel’s failure
    to object, where the only evidence implicating him in possessing a firearm
    was Officer Moffatt’s testimony that Appellant admitted to possessing one,
    and that Officer Moffatt believed Appellant’s wound was self-inflicted.
    Finally, Appellant asserts there was no apparent basis for Trial Counsel’s
    failure to object.
    Although we remand for a new trial based on Appellant’s Miranda-
    related claim, we address this issue because it may arise at a new trial. We
    note:
    “The admissibility of evidence is a matter for the discretion of
    the trial court and a ruling thereon will be reversed on appeal
    only upon a showing that the trial court committed an abuse of
    discretion.”
    Pursuant Pennsylvania Rule of Evidence 701, Opinion
    Testimony by Lay Witness, lay witness testimony in the form of
    an opinion is limited to one that is:
    (a) rationally based on the witness’s perception
    (b) helpful to clearly understanding the witness’s testimony
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    J-S03020-20
    or to determining a fact in issue; and
    (c) not based on scientific, technical, or other specialized
    knowledge within the scope of Rule 702.[11]
    Pa.R.E. 701 (emphasis added). Our cases further hold that lay
    witnesses may testify to someone’s readily observable physical
    condition or appearance that does not require medical training.
    Commonwealth v. Gause, 164 A.3d at 532, 537-38 (Pa. Super. 2017) (en
    banc) (some citations omitted and paragraph break added).
    “Generally, lay witnesses may express personal opinions related to
    their observations on a range of subject areas based on their personal
    experiences that are helpful to the factfinder.” Commonwealth v. Berry,
    
    172 A.3d 1
    , 3-4 (Pa. Super. 2017).         Lay testimony has been defined as
    testimony “intended to describe something that jurors otherwise had not
    been able to experience for themselves, by drawing upon the sensory and
    experiential    observations    that      the   witness   made    firsthand.”
    Commonwealth v. Rose, 
    172 A.3d 1121
    , 1131 (Pa. Super. 2017).
    In denying relief on Appellant’s claim, the PCRA court found Officer
    Moffat’s testimony was properly admitted as lay testimony; it reasoned, in
    sum:
    In the instant case, [Officer] Moffatt was not testifying as an
    expert on gunshot wounds, he was merely stating what he
    observed while at the hospital. This testimony was rationally
    based on [Officer] Moffatt’s perception and it aided the fact
    finder in understanding why [he] interviewed [Appellant] in the
    11Rule 702 addresses testimony by expert witnesses. Pa.R.E. 702. It is
    undisputed that in this case, Officer Moffatt was not offered or qualified as
    an expert witness.
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    J-S03020-20
    manner in which he did. This clearly falls under [Pa.R.E. 701(a)
    and (b)], making [Officer] Moffatt’s opinion testimony
    permissible under the Pennsylvania Rules of Evidence.
    PCRA Ct. Op. at 12.
    After careful review, we agree with Appellant that the pertinent portion
    of Officer Moffatt’s testimony was beyond the scope of lay testimony
    permitted by Rule of Evidence 701(c). An opinion that a gunshot wound was
    self-inflicted would require specialized expert medical and forensic training.
    See Pa.R.E. 702(c). Aside from a vague reference to his “experience” and
    “the angle and location” of Appellant’s wound, as well as his uncorroborated
    opinion that the wound was “[f]rom the top of the knee down towards the
    foot,” Officer Moffatt offered no medical or forensic observations of the
    wound, nor any medical or forensic theories supporting his opinion.        See
    N.T. Trial at 15. Indeed, the officer did not even explain whether Appellant’s
    wound was bandaged or undressed.             See id. at 14 (“[Appellant] had
    [already] received some treatment.”).        Thus, Appellant’s underlying claim
    had arguable merit.
    Furthermore, Appellant established Trial Counsel had no rational basis
    for not objecting to the testimony at trial.       At the PCRA hearing, Trial
    Counsel simply testified she did not remember whether she considered
    objecting to Officer Moffatt’s testimony; she did not offer any explanation
    why she failed to object. N.T. PCRA H’rg at 22.
    Finally, the failure to object was prejudicial to Appellant, where, as
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    J-S03020-20
    stated above, the only evidence of Appellant’s possession of a gun was
    Officer Moffatt’s testimony that Appellant stated he had a gun that night and
    may have shot himself.      Accordingly, we reverse the portion of the order
    denying relief on this issue and remand for a new trial.
    In sum, we conclude the trial court erred in finding Trial Counsel not
    ineffective for failing to seek suppression, under Miranda and our corpus
    delicti rule, of Appellant’s inculpatory statement and for not objecting to
    Officer Moffatt’s lay testimony that Appellant’s gunshot wound was self-
    inflicted.   Accordingly, we reverse the order of the PCRA court denying
    Appellant’s PCRA petition and remand for a new trial, consistent with this
    opinion.
    Order     reversed.   Case   remanded    for   new   trial.   Jurisdiction
    relinquished.
    Judge Pellegrini joins this opinion.
    Judge McLaughlin files a concurring and dissenting opinion.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 3/30/2020
    - 21 -
    

Document Info

Docket Number: 711 WDA 2019

Filed Date: 3/30/2020

Precedential Status: Precedential

Modified Date: 3/30/2020