Com. v. Harper, D.

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2020 PA Super 77COMMONWEALTH 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).
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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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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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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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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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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
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