Com. v. Reese, B.

J-S11016-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRUCE M. REESE
Appellant No. 52 EDA 2013
Appeal from the Judgment of Sentence of November 20, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0013539-2011
BEFORE: BENDER, P.J.E., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY WECHT, J.: FILED AUGUST 06, 2014
Bruce M. Reese appeals his November 20, 2012 judgment of sentence.
we remand for a new trial consistent with this memorandum.
The underlying incident in this case occurred late in the evening on
November 11, 2011. On that date, the three complainants in this case
Darren Harrison, Ian White, and Bryan Shoecraft were robbed at the
intersection of 57th and Belmar Streets in Philadelphia, Pennsylvania.
car, which was parked at the aforementioned intersection and outside of the
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S11016-14
7/31/2013, at 5-
wireless Internet signal to watch a video in the vehicle. Id. At
some items left there by anot Id. at 8. Shoecraft and Nazario
exited the residence, and engaged Harrison and White in conversation, when
they noticed the men sitting in the vehicle. Id. at 5, 7-8.
Ha Id. at 8. Reese accosted Nazario
Id. Reese proceeded to pat
Id.
Id. at 6, 9.
earlier demand. Id. at 5-
Id. at 9. After
his unidentified accomplice arrived at the car, Reese collected $90.00 in cash
from Harrison and White, and gave it over to his accomplice. Id. at 6, 9.
and emptied it of valuables and $2.00. Id. at 9. The accomplice also
Id. at
7, 9.
-2-
J-S11016-14
s related to a person
named Kyle. Id. at 6. Reese acknowledged that he knew Kyle, id. at 6, and
asked how much money he and his accomplice had taken from Harrison and
his friends. Id. at 7. Reese then asked his accomplice to return the money,
but the s
1
Reese and
Id. at 6.
[Upon] returning home, [Shoecraft] immediately called the
police to report the theft. Police officers came to his home, took
him to the scene [of the robbery] and then to the Southwest
Detectives [D]ivision of the Philadelphia Police Department
where he was interviewed by Detective [Frank] Mullen. At
approximately 2:32 a.m. [on November 12, 2011], after giving
his statement, [Shoecraft] viewed a line-up of potential suspects
without any results.
[Harrison] did not contact the police until 9:00 a.m. the following morning,
Id. at 6.
statement, including a description of [Reese], Detective Mullen generated a
photo array on his computer screen. [Harrison] immediately identified
____________________________________________
1
Ap
putative phone number. T.C.O. at 6 n.3.
-3-
J-S11016-14
Id. at 6-7. Specifically, Harrison
testified at trial that he immediately recognized Reese and told Detective
Mu
10/2/2012, at 72. White similarly identified Reese in a separate interview:
[White] testified that [early in the morning on November 13,
2011,] Harrison called him and took him to the police station
where he was interviewed by a detective other than Detective
Mullen. After signing his statement at 3:25 a.m.[, White]
positively identified [Reese] from a previously prepared photo
e of
Id. at 11.
Based on these identifications, a search warrant was prepared by
[D]etective
executing the warrant at 7:05 a.m. on the morning of November
sic] on a sofa-like piece of
-
automatic] handgun
been lying on. Although it appeared to be real, it was later
[2]
Detective
Mullen testified that, in addition to the gun, several pieces of
mail addressed to [Reese] at that address were also recovered.
Id. Thereafter, Reese was arrested:
On November 14, 2011, [Reese] was arrested and charged with
numerous offenses, including[,] inter alia[:] (1) [f]our counts of
robbery threatens serious bodily injury pursuant to 18 Pa.C.S.
____________________________________________
2
-4-
J-S11016-14
§ 3701(a)(1)(ii); (2) [o]ne count of criminal conspiracy pursuant
to 18 Pa.C.S. § 903(C); and (3) [o]ne count of possession of an
instrument of crime with intent pursuant to 18 Pa.C.S. § 907(a).
Id. at 1-2 (citations modified).
suppress the evidence against [Reese] obtained as a result of the search
warrant, arguing that there was insufficient evidence in the affidavit of
Id. at 13. Reese
Id.
motion, and trial commenced on October 2, 2012. N.T. Trial I at 30.
On October 5, 2012, at the conclusion of his jury trial, [Reese]
was found guilty on all counts of robbery, one count of [criminal]
conspiracy[,] and one count of possession of an instrument of
crime. For the purposes of sentencing, the [trial court] broke
the robbery charges into two separate groups. On the first two
robbery counts[, Reese] was sentenced on each charge to
concurrent periods of confinement in a state correctional facility
of [five] to [ten] years. On the second [set of] robbery counts[,
Reese] was also sentenced on each charge to concurrent periods
of confinement in a state correctional facility of [five] to [ten]
years, to run consecutively to the first two [robbery] sentences,
for a total period of incarceration on [all of] the robbery charges
of ten to twenty years. [Reese] was also sentenced to two
consecutive periods of confinement in a state correctional facility
of [two and one-half] to [five] years each on the counts of
conspiracy and possession of an instrument of crime, for a total
period of incarceration of [five] to [ten] years on these two
charges. These sentences [were set] to run consecutively to the
sentences on the robbery charges. Thus, [Reese] was sentenced
to a total period of confinement of [fifteen] to [thirty] years.
[Reese] was also ordered to pay restitution to two of his victims
in the total amount of $108.
-5-
J-S11016-14
On December 10, 2012, [Reese] timely filed the instant appeal
to the Superior Court of Pennsylvania.[3] [On] December 13,
2012, [a]ppellate [c]ounsel was appointed to represent [Reese]
for the purposes of this appeal. On January 3, 2013, [the trial
court] filed and served on [Reese] an Order pursuant to
[Pa.R.A.P. 1925(b)], directing [Reese] to file and serve a
Statement of Errors Complained of on Appeal, within [twenty-
Statement of [Errors U]pon Receipt of All Notes of Tes
[and directed Reese] to file and serve a [Rule 1925(b)
statement] within 21 days of the receipt of all notes of
testimony.
* * *
On May 14, 2013, [Reese] timely filed his [Rule 1925(b)
statement].
T.C.O. at 2-3 (citations and capitalization modified, parentheses added). On
July 31, 2013, the trial court filed its Rule 1925(a) opinion.
Reese raises the following issues for our consideration:
1. Did the [trial] court err by den -trial
motion to suppress evidence based on a lack of probable cause
where the affidavit of probable cause for the issuance of the
warrant did not provide sufficient information for the issuing
court to make a determination of probable cause?
____________________________________________
3
cing order was entered by the trial court that same day. See
December 10, 2012 notice of appeal was filed timely. See Pa.R.A.P. 903(a)
0 days after the entry of
-6-
J-S11016-14
2. Was the evidence insuf[f]icient to establish a reliable
identification of [Reese] as being involved in the commission of
the crimes he was convicted of committing?
Brief for Reese at 2.
hich
challenges the sufficiency of the evidence adduced by the Commonwealth.
Specifically, Reese contends that this evidence was insufficient to establish
matter is clear that no complaining witness . . . claimed to have previously
known [Reese], or [to] have interacted with him. . . . [A]t no time during
the robbery did any witness state that [Reese] had been identified by
-13. Thus, Reese argues that the evidence was
insufficient positively to identify him. We disagree.
Our standard of review in this context is well-established:
The standard we apply in reviewing the sufficiency of evidence is
whether, viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the factfinder to find every element of the crime
beyond a reasonable doubt. Commonwealth v. Heberling,
678 A.2d 794, 795 (Pa. Super. 1996) (citing Commonwealth v.
Williams, 650 A.2d 420, 424 (Pa. 1994)). In applying [the
above] test, we may not weigh the evidence and substitute our
judgment for that of the fact-finder. In addition, we note that
the facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. Any doubts
-finder
unless the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the combined
circumstances. Commonwealth v. Cassidy, 668 A.2d 1143,
1144 (Pa. Super. 1995). The Commonwealth may sustain its
burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial evidence.
-7-
J-S11016-14
Moreover, in applying the above test, the entire record must be
evaluated and all evidence actually received must be considered.
Finally, the trier of fact while passing upon the credibility of
witnesses and the weight of the evidence produced, is free to
believe all, part or none of the evidence. Commonwealth v.
Valette, 388, 613 A.2d 548, 549 (Pa. 1992).
Commonwealth v. Vetrini, 734 A.2d 404, 406 07 (Pa. Super. 1999)
(citations modified). This Court specifically has discussed the sufficiency
standards, in the context of identity, as follows:
Proof beyond a reasonable doubt of the identity of the accused
as the person who committed the crime is essential to a
positive and certain in order to convict, although any
indefiniteness and uncertainty in the identification testimony
goes to its weight. Direct evidence of identity is, of course, not
necessary and a defendant may be convicted solely on
circumstantial evidence.
Commonwealth v. Hickman, 309 A.2d 564, 566 (Pa. 1973) (citations
witnesses and the circumstances surrounding their opportunities to see their
Id.
Instantly, Reese was positively identified by Harrison, White, and
Shoecraft during their initial interactions with the Philadelphia Police
Department. T.C.O. at 5-8, 10-11. Furthermore, all three men testified at
trial that Reese was one of the perpetrators of the robbery. See N.T. Trial I
at 50 (Harrison identifying Reese in the courtroom); Notes of Testimony
-8-
J-S11016-14
respectively, identifying Reese in the courtroom). These identifications
clearly constituted sufficient evidence to
Reese argues that inconsistencies in the respective descriptions of
identification. See
[Reese] was either wearing a hoodie, a vest, a jacket, or a white Muslim
arguendo
identifications differed somewhat in describing Reese, such questions of
credibility are committed to the jury for resolution. Vetrini, supra. In
convicting Reese, the jury clearly found the identifications of Harrison,
Shoecraft, and White to be credible. See Hickman, supra. Thus, we
We turn now to Ree
waived his remaining issue for failure specifically to enumerate his claim in
his Rule 1925(b) statement.
In relevant part, the trial court asserts that Reese has waived his first
information was lacking rendering the search warra
The trial court has cited numerous cases in support of its argument that
Id. at 4-5 (citing
-9-
J-S11016-14
Commonwealth v. Gibbs, 981 A.2d
challenging the sufficiency of the evidence [to sustain a conviction] on
elements upon which the evidence was insufficient in order to preserve the
Commonwealth v. Williams, 959 A.2d 1252, 1257
evidence was insufficient [to sustain a conviction], then the 1925(b)
statement needs to specify the element or elements upon which the
Commonwealth v.
McCree
requests a statement of matters complained of on appeal . . ., that
statement must indicate, with specificity, the error to be addressed on
Gibbs, in the context of a challenge to
in cases where, as here, the [a]ppellant was convicted of multiple crimes
each of which contains numerous elements that the Commonwealth must
This precedent is inapposite to the instant circumstances, because
not a challenge to the sufficiency of the evidence. Rather,
Reese asserts that the search warrant issued in this case was not supported
by probable cause. The potential pitfalls enumerated in Gibbs and
Williams are not implicated by this case because Reese has not challenged
- 10 -
J-S11016-14
the sufficie
-trial motion to suppress evidence based on a lack of probable
cause where the affidavit of probable cause for the issuance of the warrant
did not provide sufficient information for the issuing court to make a
Appeal, 5/14/2013, at 1 (unnumbered). Absent any case law to the
contrary, we believe that this assertion of error adequately informed the trial
litigated at length by the parties before trial. See N.T. Trial I at 9-30.
See T.C.O. at
11-15. Thus, we conclude that Reese has preserved his remaining claim.
sufficient probable cause for an issuing magistrate to issue a warrant for the
Reese at 9-10. The legal standards governing our review of this issue are
well-established:
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
- 11 -
J-S11016-14
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record
supported by the record, we are bound by these findings and
Commonwealth v. Bomar, 826 A.2d 831, 842 (Pa. 2003).
Where . . . the appeal of the determination of the suppression
duty it is to determine if the suppression court properly applied
Commonwealth v. Mistler, 912 A.2d
1265, 1269 (Pa. 2006) (quoting Commonwealth v. Nester,
709 A.2d 879, 881 (Pa. 1998)). Thus, the conclusions of law of
the courts below are subject to our plenary review.
* * *
Article I, Section 8 [of the Pennsylvania Constitution] and the
Fourth Amendment [to the United States Constitution] each
require that search warrants be supported by probable cause.
-pin that has been developed to determine whether it
is appropriate to issue a search warrant is the test of probable
Commonwealth v. Edmunds, 586 A.2d 887, 899 (Pa.
1991) (quoting Commonwealth v. Miller, 518 A.2d 1187, 1191
circumstan
has reasonably trustworthy information[,] are sufficient in
themselves to warrant a man of reasonable caution in the belief
Commonwealth v.
Thomas, 292 A.2d 352, 357 (Pa. 1972).
In Illinois v. Gates, 462 U.S. 213 (1983), the United States
test for determining whether a request for a search warrant
under the Fourth Amendment is supported by probable cause.
In Commonwealth v. Gray, 503 A.2d 921 (Pa. 1986), [the
Pennsylvania Supreme Court] adopted the totality of the
circumstances test for purposes of making and reviewing
probable cause determinations under Article I, Section 8. In
describing this test, we stated:
forth by the United States Supreme Court in Gates, the
task of an issuing authority is simply to make a practical,
- 12 -
J-S11016-14
common-sense decision whether, given all of the
circumstances set forth in the affidavit before him,
including the veracity and basis of knowledge of persons
who supply hearsay information, there is a fair
probability that contraband or evidence of a crime
will be found in a particular place. . . . It is the duty of
a court revie
determination to ensure that the magistrate had a
substantial basis for concluding that probable cause
existed. In so doing, the reviewing court must accord
determination, and must view the information offered to
establish probable cause in a common-sense, non-
technical manner.
* * *
Commonwealth v. Torres, 764 A.2d 532, 537-38 (Pa. 2001)
(emphasis added).
Commonwealth v. Jones, 988 A.2d 649, 654-55 (Pa. 2010) (internal
citations modified).
Reese has devoted the majority of his argument to the claim that
Detective Mullen ignored evidence that Reese actually resided on the 5700
block of Belmar Terrace in Philadelphia, and not at 413 North Edgewood.
Specifically, Reese asserts that Detective Mullen misinformed the issuing
-known address was located on
address, and insertion of the Edgewood residence[,] is a misstatement of
Commonwealth v. Tucker, 384 A.2d 938, 941 (Pa. Super. 1978)
- 13 -
J-S11016-14
suppression of the fruits of the search only if the misstatements of fact are
hints at and implicates the larger deficiency undergirding the search warrant
in this case. Even assuming, arguendo
Edgewood did not constitute material and deliberate misrepresentations, the
search warrant issued in this case was not supported by probable cause.
The precedent of this Court requires the Commonwealth to establish
probable cause for the premises to be searched, and not only for the person
suspected of criminal activity:
Probable cause to believe that a man has committed a crime on
the street does not necessarily give rise to probable cause to
search his home. . . . [A]n allegation based on an assumption or
supposition not supported by the facts is insufficient to support
(an inference of) criminal activity in a premises, in spite of the
fact that there are plenty of allegations alleged to relate to
criminal activity of the individual who is alleged to have lived in
the premises.
Commonwealth v. Kline, 335 A.2d 361, 364 (Pa. Super. 1975); see
Commonwealth v. Way, 492 A.2d 1151, 1154 (Pa. Super. 19
lack of a substantial nexus between the street crime and the premises to
[up]on facts described w
Commonwealth v. Dukeman, 917 A.2d 338, 341 (Pa. Super. 2007) (citing
Commonwealth v. Smith, 784 A.2d 182, 184 (Pa. Super. 2001)).
- 14 -
J-S11016-14
The November 14, 2011 affidavit of probable cause in this case
primaril
respective identifications of Reese. There is only one paragraph discussing
the premises to be searched, which reads as follows:
[Reese] has [eight] prior arrest[s] in Philadelphia and list[s] 413
N Edgewood for [six] of the arrest[s]. While being interviewed .
. . [Harrison] informed [Detective] Mullen that during the
afternoon hours of 11/13/11 he encountered the cousin of
[Reese], a male he knows as Kyle Bentley, outside of 5700
Belmar. [Harrison] stated [that Bentley] informed him that
[Reese] is residing in West Philly. The address of 413 N
Edgewood is in the West Philadelphia area. On 4/27/11[, Reese]
was released from prison. The prison release information list[s
s as 1413 N Edgewood. This address listing
appears to be a typographical error. There are no connections
for [Reese] to 1413 N Edgewood at all.
Continuation of Probable Cause for Search Warrant #161856, 11/14/2011,
at 1. Stated simply, there is no in
address and the instant robbery. Way, surpa. There are ample facts in the
at 413
North Edgewood Street.4 However, the affidavit offers no factual basis for
____________________________________________
4
-trial suppression
hearing confirms that the above-mentioned information formed the basis for
the warrant application in this case
totality, his criminal history, his prison release information, and that one of
the victims talked to a relative that said [Reese] lived in West Philadelphia, I
firmly believed that 413 North Edgewood was the
- 15 -
J-S11016-14
any way. Although the affidavit offered significant factual bases for
concluding that Reese was
man has committed a crime does not necessarily give rise to probable cause
Way, 492 A.2d at 1154.
Kline and Way is highly instructive.5 In
Kline, the police obtained a search warrant for an apartment after
eyewitness complainants identified the defendant as a drug dealer and
____________________________________________
5
Subsequent decisions have distinguished somewhat our holding in
Kline and, by extension, Way. Specifically, this Court has enumerated
e to be searched and the evidence to be seized.
See Commonwealth v. Davis, 595 A.2d 1216, 1220-22 (Pa. Super. 1991)
sales
Commonwealth v. Macolino, 485
A.2d 1134, 1136-38 (Pa. Super. 1984) (holding that police established
probable cause to search a home, when the affidavit of probable cause
contained information wiretapped conversations emanating from the house
discussing narcotics trafficking, and police surveillance of the property,
wherein the defendant was observed coming and going from that house
while meeting with a known narcotics supplier); Commonwealth v. Frye,
admission may form the basis for establishing probable cause to search a
evidence to be seized
We read these cases as standing for the general proposition that, while the
Commonwealth must establish a nexus between the place to be searched
and the items to be seized, that burden is not meant to be harshly
interpreted. However, the central holding of Kline and Way that mere
of his residence
does not establish probable cause to search that residence remains in
force.
- 16 -
J-S11016-14
indicated that the defendant lived in that particular apartment. Specifically,
three different informants stated that they had purchased drugs from the
defendant in the preceding week. Although the complainants stated that the
defendant kept the drugs that he sold in his apartment, there was no factual
basis in the affidavit to support that claim:
[The suppression court] suppressed the evidence seized
pursuant to the warrant because [the suppression court]
concluded that although the affidavit contained facts sufficient to
establish that [the defendant] was indeed dealing in drugs and
lived in the apartment described, it did not contain facts
sufficient to establish the basis [up]on which the several
informants . . . had concluded that [the defendant] had gone to
his apartment to get the drugs.
Kline, 335 A.2d at 362-63. On appeal, this Court upheld the suppression
, stating that assumptions regarding the premises to be
searched are insufficient to establish probable cause:
Here, as far as appears from the affidavit, none of the
informants said where the [drugs were.] The [informants]
apparently concluded that [the
apartment. However, an affidavit must set forth how
information leading to such a conclusion was obtained.
Commonwealth v. Ambers, 310 A.2d 347, 350 (Pa. Super.
1973); Commonwealth v. Soychak, 289 A.2d 119, 124 (Pa.
Super. 1972). There is no indication of where the transaction
took place, how long it took, how long [the defendant] was
gone, or what led the [informants] to conclude that [the
defendant] had gone to his apartment. The information from the
confidential informant does not corroborate their conclusion that
[the defendant] kept drugs in his apartment, even though it
does tend to establish that [the defendant] was a drug dealer.
Id. at 364 (internal citations modified). Thus, the mere fact that an affidavit
of probable cause tends to establish the criminal activity of a defendant, and
- 17 -
J-S11016-14
the location of his home, does not provide probable cause to support the
issuance of a search warrant for that home.
In Way, this Court relied upon Kline to suppress evidence seized
pursuant to a search warrant in another narcotics case:
The facts fairly summarized are that the informant arranged a
drug transaction by phone. The alleged transaction occurred in a
blue van along a country road. After the alleged transaction,
police followed the blue van to a driveway of a property at the
corner of Douglas Dr. and Glendale Rd. The informant identified
appellant as the driver of the blue van. A police source told the
affiant that appellant lived at the intersection of Douglas Dr. and
Glendale Rd.
Way, 492 A.2d at 1154. The trial court concluded that the search warrant
was supported by probable cause. On appeal, this Court reversed,
sufficient facts to permit an issuing authority reasonably to conclude that
Id.
Turning to the instant case, examining the totality of the
circumstances, and considering only the evidence adduced by the
Commonwealth and the uncontradicted evidence of the defense, there are
establishes only probable cause to believe that Reese committed the robbery
and lived at the subject residence.. Consequently, Kline and Way are
- 18 -
J-S11016-14
the street crime and the premises to be searched renders the warrant
Way, 492 A.2d at 1154; see Kline, 335 A.2d at 364.
Consequently, we conclude that the trial court erred in denying
6 7
, Because the search in the instant case was
____________________________________________
6
Based upon the transcript of the suppression hearing, it appears that
motion upo
requires that a warrant be supported by probable cause. See N.T. Trial I at
basis to say that he was at that address on E
Constitution. See U.S. v. Leon, 468 U.S. 897, 922-26 (1984). However,
the Supreme Court of Pennsylvania specifically has declined to adopt such an
exception pursuant to Article I, Section 8, of the Pennsylvania Constitution.
Commonwealth v. Edmunds, 586 A.2d 887, 905-
Section 8 of the Pennsylvania Constitution does
see Commonwealth v. Johnson, 86
A.3d 182, 188-89 (Pa. 2014) (stating that Edmunds
Constitution,
7
Despite concluding that the trial court erred in failing to suppress the
evidence seized at 413 North Edgewood, we also must assess whether the
tri
Once a reviewing court has decided that admitted evidence
should have been suppressed, it must determine beyond a
reasonable doubt whether the error was harmless. When the
error is harmless, a new trial is not warranted. Harmless error
exists if the reviewing court is convinced from the record that (1)
the error did not prejudice the defendant or the prejudice was de
minimis, (2) the erroneously admitted evidence was merely
cumulative of other untainted evidence, or (3) the properly
admitted and uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error was so
(Footnote Continued Next Page)
- 19 -
J-S11016-14
conducted pursuant to an invalid warrant, the evidence seized as a result of
the search must be suppr
and we remand for further proceedings consistent with this memorandum.
Judgment of sentence vacated. Case remanded for further
proceedings. Jurisdiction relinquished.
Strassburger, J. files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/6/2014
_______________________
(Footnote Continued)
insignificant by comparison that the error could not have
contributed to the guilty verdict.
Commonwealth v. Petroll, 738 A.2d 993, 1005 (Pa. 1999) (citing
Commonwealth v. Hawkins, 701 A.2d 492, 507 (Pa. 1997)); see
Commonwealth v. Story, 383 A.2d 155, 164-
the harmless error analysis in a particular case, it is imperative that the
burden of establishing that the error is harmless beyond a reasonable doubt
Commonwealth v. West, 834 A.2d 625,
635 (Pa. Super. 2003) (citing Commonwealth v. Drummond, 775 A.2d
849, 853 (Pa. Super. 2001)); see Commonwealth v. Story, 383 A.2d 155,
162 n.11 (Pa. 1978). Instantly, the Commonwealth has not offered a
discussion of harmless error in its brief before this Court. In the absence of
cogent argument, the Commonwealth cannot fulfill its burden of establishing
that the error in this case was harmless. Thus, we conclude that the error in
this case was not harmless.
- 20 -