J-A22029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

BRANDON JUNE WILSON

                             Appellant                No. 3217 EDA 2016


           Appeal from the Judgment of Sentence September 6, 2016
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0000597-2014


BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                         FILED JANUARY 19, 2018

        Brandon June Wilson appeals from his judgment of sentence, entered

in the Court of Common Pleas of Monroe County, following his conviction for

third-degree murder (F-1),1 conspiracy (F-1)2 and three counts of recklessly

endangering another person (REAP) (M-2).3 After careful review, we reverse

and remand for a new trial.

        The trial court summarized the facts underlying this appeal as follows:

        On January 13, 2014, Kaylynn Bunnell and her boyfriend, Matt
        Flores, sought to buy drugs from Brandon Kravchenko. A deal
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.

1
    18 Pa.C.S. § 2502(c).

2
    18 Pa.C.S. § 903.

3
    18 Pa.C.S. § 2705.
J-A22029-17


       was set up and Kravchenko put Flores in contact with a man
       named “Jordan” in the parking lot of the Big Star to buy Percocet
       30s. During this deal, “Jordan” took Flores and Bunnell's money
       and gave them fake drugs in return. Bunnell then called her best
       friend, Jacqueline Harrigan, to complain about the bad drug deal.
       Bruce Murray, Harrigan's boyfriend, answered the phone and
       listened to Bunnell's complaints. Murray then asked if Bunnell
       wanted to do anything about the drug deal and Bunnell said she
       did.

       Murray, a member of the Black P-Stone street gang, contacted
       Sirvonn Taylor,4 an “amnir” in the gang, for direction on how to
       handle the situation. Taylor gave the go-ahead for a
       confrontation, instructing Murray to take Dyqunn Mitchell,
       another Black P-Stone, with him, Murray, Harrigan, and Bunnell
       drove to pick up Mitchell. [Wilson], also a Black P-Stone, was
       with Mitchell and overheard the conversation. [Wilson] was
       subsequently asked if he also wanted to go. [Wilson] agreed
       and a loaded gun was placed in the trunk of the car.

       Upon arrival at the Kra[]vchenko residence, Bunnell and
       Harrigan knocked on the door and spoke to a man inside. The
       man was later identified as “Jordan,” the man who sold Bunnell
       the fake drugs. At that point, Murray called Taylor again. As a
       result of the conversation with Taylor, the men retrieved the gun
       from the trunk and the entire group got back in the car.
       [Wilson] instructed Bunnell to “creep” by the house and while
       she did that, [Wilson] and Mitchell shot at the Kravchenko
       residence. One of the bullets entered the bedroom window and
       hit Darcy Kravchenko in the head, causing his death shortly
       thereafter.

       The above evidence was presented to a jury, which convicted
       [Wilson] of Murder in the Third Degree, Conspiracy, and three
       counts of Recklessly Endangering Another Person. After a pre-
       sentence investigation, we sentenced [Wilson] as follows: for
       the conviction of Murder in the Third Degree, a period of
       incarceration of not less than 16 years, nor more than 40 years;
       for the conviction of Conspiracy, a period of incarceration of not
       less than 16 years, nor more than 40 years to run concurrent
____________________________________________


4
 The trial court granted the Commonwealth’s motion to join Wilson’s case
with that of co-defendant Taylor.



                                           -2-
J-A22029-17


       with the sentence imposed to Murder in the Third Degree; and
       for the convictions of Recklessly Endangering Another, a period
       of incarceration for each Count of not less than 7 months, nor
       more than 18 months, with each sentence running consecutive
       to the other sentences. [Wilson]’s aggregate sentence is a
       period of incarceration of not less than 213 months, nor more
       than 534 months. [Wilson] was entitled to a time credit of 380
       days.

       On September 16, 2016, [Wilson] filed a [m]otion for
       [m]odification of [s]entence, alleging his sentence was excessive
       in light of several mitigating factors. [The trial court] denied this
       motion by [o]rder on September 20, 2016.

Trial Court Opinion, 11/14/16, at 1-3.

       Wilson filed a timely notice of appeal and court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. He raises the

following issues for our consideration:

       (1)    Did the trial court err in failing to grant [Wilson] a new trial
              in light of its numerous erroneous evidentiary rulings,
              including most notably its decision to allow the
              Commonwealth to use a statement made by [Wilson]
              during plea negotiations in its case-in-chief?

       (2)    Did the trial court err in failing to conclude that the verdict
              was against the sufficiency of the evidence?

       (3)    Did the trial court err in refusing [Wilson’s] requested jury
              instructions on (a) involuntary manslaughter[;] (b) the
              voluntariness of his statement under Miranda[5;] and (c)
              the “missing evidence” jury instruction?

       (4)    Did the trial court abuse its discretion by sentencing Wilson
              to an aggregate state prison sentence of 17.75 years to
              44.5 years in state prison?

Appellant’s Brief, at 5.
____________________________________________


5
    Miranda v. Arizona, 384 U.S. 436 (1966).



                                           -3-
J-A22029-17



      Wilson first contends that the trial court impermissibly permitted the

Commonwealth, in its case-in-chief, to use a statement he made during plea

negotiations at trial.   The statement detailed Wilson’s involvement in the

homicide and his connection to the Black P-Stone Gang.      Wilson contends

the court’s admission of his statement was a direct violation of Pa.R.E.

410(a)(4) and is reversible error.

      Pursuant to Rule 410:

      (a) Prohibited Uses. In a civil or criminal case, evidence of the
      following is not admissible against the defendant who made the
      plea or participated in the plea discussions:

         (1) a guilty plea that was later withdrawn;

         (2) a nolo contendere plea;

         (3) a statement made in the course of any proceedings
         under Rules 311, 313, 409, 414, 424, 550 or 590 of the
         Pennsylvania Rules of Criminal Procedure, Rule 11 of the
         Federal Rules of Criminal Procedure, or a comparable rule
         or procedure of another state; or

         (4) a statement made during plea discussions with
         an attorney for the prosecuting authority if the
         discussions did not result in a guilty plea or they
         resulted in a later withdrawn guilty plea.

      (b) Exceptions. The court may admit a statement described in
      Rule 410(a)(3) or (4):

         (1) in any proceeding in which another statement made
         during the same plea or plea discussions has been
         introduced, if in fairness the statements ought to be
         considered together; or

         (2) in a criminal proceeding for perjury, false swearing or
         unsworn falsification to authorities, if the defendant made
         the statement under oath, on the record, and with counsel
         present.


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J-A22029-17



Pa.R.E. 410 (emphasis added).            The purpose behind Rule 410 is that “if

negotiations fail or the plea is withdrawn,” admissions arising out of and

inherent in the plea discussion are protected from admission into evidence at

trial. Commonwealth v. Calloway, 459 A.2d 795, 800 (Pa. Super. 1983).6

       In Commonwealth v. Widmer, 120 A.3d 1023 (Pa. Super. 2015),

our Court concluded that the trial court properly admitted at trial the

defendant’s statements made during plea negotiations, finding that:           the
____________________________________________


6
  To the extent that the Commonwealth claims that Wilson waived this issue
on appeal for his failure to “then, or at any time thereafter raise the claim
that his plea agreement was entered into involuntarily or unknowingly,” we
disagree. On June 3, 2016, Wilson filed a petition for reconsideration of the
denial of his motion in limine asserting therein that:

       The rationale for the admission of the proffer in
       Commonwealth v. Widmer [] relied upon by the
       Commonwealth is wholly distinguishable from the instant matter
       in that Mr. Widmer expressly agreed, on the record at the time
       of making the proffer, that the Commonwealth would be
       permitted to use the proffer at trial in the event he reneged upon
       the plea agreement. No such agreement was made with Mr.
       Wilson.”

Petition for Reconsideration, 6/3/16, at       ¶6 (emphasis added). Additionally,
at a May 24, 2016 proceeding, defense          counsel raised the precise Rule 410
waiver issue, stating “it’s our position       that the Commonwealth never did
carry its burden of proof to prove that        there was a knowing and voluntary
waiver at the time that the proffer was        given.” N.T. Proceedings, 5/24/16,
at 7.

From the above facts, it is clear that Wilson was alleging that he never
expressly or impliedly waived his rights under Rule 410 by agreeing to
permit the Commonwealth to use his statement at trial if he chose to
proceed to trial. Accordingly, we decline to find waiver. See Pa.R.A.P.
302(a) (issues not raised in lower court are waived and cannot be raised for
first time on appeal).



                                           -5-
J-A22029-17



rights at issue were waivable; the defendant’s waiver was knowing and

voluntary; the assistant district attorney unequivocally indicated that the

defendant’s statements would be used at trial if his plea was not entered;

there was no indication using the defendant’s statements would depend

upon whether he testified; and, the defendant’s chances of acquittal were

relatively slim. Id.

      Wilson distinguishes Widmer by arguing that his statement was not

unsolicited or voluntary, and that he exhibited a subjective expectation that

his statement was for plea purposes only and could not be used at trial.

Appellant’s Brief, at 18-19. We agree.

      In the instant case, on May 21, 2014, Wilson and his attorney met

with state police investigators and members of the District Attorney’s Office

at which time Wilson ultimately gave a statement detailing his involvement

in the homicide and his connections to the Black P-Stone Gang in exchange

for an open guilty plea to third-degree murder (accomplice), with no

agreement as to sentencing. Prior to giving his statement, Assistant District

Attorney Michael Mancuso (“ADA”) asked Wilson “to give a truthful proffer

and otherwise cooperate with the investigators in that case.”     Statement

under Oath (“the Agreement”), 5/21/14, at 4.        However, the ADA told

Wilson that “whatever you give will be subject to use and derivative use

immunity [and that the Commonwealth] will not be using your statements

against you or evidence derived from your statements against you in any

court proceeding.” Id. The ADA later qualified this agreement by stating,

                                    -6-
J-A22029-17



“But [the statement] has to be truthful . . . [o]r everything goes

away.” Id. (emphasis added).

       Several months later, Wilson met with his attorney to prepare his

testimony for co-defendant Taylor’s omnibus pretrial motion hearing, in

conformity with the Agreement. During that meeting, Wilson contradicted a

detail he had given in his May 2014 statement.7 When Wilson later refused

to testify at Taylor’s omnibus hearing, the Commonwealth filed a motion

seeking imposition of sentence claiming that Wilson had breached the

Agreement.

       Wilson later withdrew his guilty plea to third-degree murder, as an

accomplice, and the matter was scheduled for trial. Citing Rule 410, defense

counsel filed a motion to preclude the Commonwealth from using his

statement, made during plea negotiations, at trial.   The trial judge denied

the motion, concluding that Wilson had waived the inadmissibility of his

statement under Rule 410 by breaching the agreement when he refused to

testify against Taylor. At trial, the Commonwealth used Wilson’s statement

under oath during its opening and closing arguments as well as referencing

it during its case-in-chief.

       Although a plea agreement occurs in a criminal context, it
       remains contractual in nature and is to be analyzed under
____________________________________________


7
  Specifically, Wilson stated that the co-defendant had never offered to take
him to Maine to hide him from authorities after the homicide. Cf. Statement
under Oath of Brandon E. Wilson, 5/21/14, at 43-44.



                                           -7-
J-A22029-17


      contract-law standards.     Furthermore, disputes over any
      particular term of a plea agreement must be resolved by
      objective standards. A determination of exactly what promises
      constitute the plea bargain must be based upon the totality of
      the surrounding circumstances and involves a case-by-case
      adjudication.

Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa. Super. 1995)

(citations omitted).   Moreover, we must resolve any dispute in the terms by

objective standards and any ambiguities are to be construed against the

Commonwealth. Id.

      The Commonwealth admits that Wilson’s statement was made during

plea negotiations in the underlying homicide case.     See Commonwealth’s

Brief, at 15. See also Commonwealth v. Miller, 568 A.2d 228 (Pa. Super.

1990); Calloway, supra.       We must, however, properly characterize the

statement to determine whether it is admissible. In Calloway, supra, our

Court set forth a test to determine the appropriate characterization of

statements made during plea negotiations:

      [F]irst, whether the accused exhibited an actual subjective
      expectation to negotiate a plea at the time of the discussion, and
      second, whether the accused's expectation was reasonable given
      the totality of the objective circumstances. Of primary
      importance      in  assessing      an    accused’s     subjective
      expectation of negotiating a plea is whether the
      Commonwealth showed an interest in participating in
      such discussions. In line with this reasoning, voluntary,
      unsolicited statements uttered by an accused to authorities
      cannot be said to be made in furtherance of striking a plea
      bargain.

Id. at 800-801 (emphasis in original).




                                     -8-
J-A22029-17



     Instantly, the Commonwealth approached defense counsel and offered

Wilson a plea deal in exchange for his proffer. In fact, the Commonwealth

admits that Rule 410 is applicable in the instant case. See Appellee’s Brief,

at 21; see also Burno, supra (where under totality of circumstances

defendant exhibited subjective expectation to negotiate plea and expectation

was objectively reasonable, confession is type of statement protected under

Rule 410).    While the trial court concluded that Wilson’s statement was

admissible because he ultimately failed to uphold his end of the bargain by

not testifying at Taylor’s pretrial hearing, the court incorrectly determined

that Wilson effectuated a knowing and intelligent Rule 410 waiver. In order

to overcome the prohibition against admitting statements made during plea

negotiations under Rule 410, a defendant must knowingly and voluntarily

waive the inadmissibility of his statements as part of the bargain he strikes

with the Commonwealth during plea negotiations. See Widmer, supra.

     In concluding that Wilson’s statement was admissible, the trial court

stated:

     In the conversation with ADA Man[c]u[s]o, [Wilson] stated that
     he understood that “everything else goes away” if [he] failed to
     uphold his end of the agreement. Reading this statement in
     context, “everything” refers to ADA Mancuso’s immediately
     preceding comment regarding use immunity of [Wilson’s]
     statements. See id. We find that the exchange between ADA
     Mancuso and [Wilson] falls within the standard set by the
     Superior Court for waiver of [Wilson’s] rights under Rule 410.
     [Wilson] was represented by counsel at the proffer. [Wilson]
     has not put forward any evidence that shows an “affirmative
     indication that the agreement was entered into unknowingly or
     involuntarily.”


                                    -9-
J-A22029-17



Trial Court Opinion, 5/5/15, at 9. In its analysis, the trial court asserts that

Wilson failed to prove that he entered into the agreement unknowingly or

involuntarily.8    Keeping in mind the intent behind Rule 410, namely the

sanctity of plea negotiations and the role that bargaining plays in the

administration of justice, we disagree with the trial court and conclude that

the   admission      of   Wilson’s    statement    was   error.   See   generally

Commonwealth v. Jones, 544 A.2d 54 (Pa. Super. 1988).

       Here, the language used by the ADA, during his May 21, 2014 meeting

with Wilson, does not clearly indicate that the Commonwealth predicated its

plea bargain with Wilson upon Wilson waiving his rights under Rule 410.

Contrary to the trial court’s conclusory analysis determining that Wilson

affirmatively waived his rights under 410, we find that any such intention is

equivocal at best where the ADA never specifically informed Wilson on the

record that the Commonwealth would use his statement against him at trial

or ever suggested that it could use the statement in its case-in-chief. Cf.

Widmer, supra (defendant waived Rule 410 rights where Commonwealth

“clearly indicated [its] intent to use [defendant’s] statements regardless of


____________________________________________


8
  Interestingly, in its instruction to the jury, the trial judge acknowledged
that it was the Commonwealth’s burden to prove, by a preponderance of the
evidence, that Wilson’s statement was made voluntarily.         N.T. Jury Trial,
6/15/16, at 129-30. The determination that Wilson made the statement
voluntarily, during the plea negotiation process, is a completely different
question than whether he also voluntarily agreed to waive his Rule 410
rights as part of the plea bargain.



                                          - 10 -
J-A22029-17



whether he testified at trial.”). In fact, the ADA indicated exactly the

opposite when it told Wilson that “[w]e will not be using your statements

against you or evidence derived from your statements against you in any

court proceeding.” N.T. Statement Under Oath, 5/21/14, at 4-5.          Finally, by

choosing      to   use   the   phrase,    “[o]r   everything   goes   away,”   the

Commonwealth did not make the waiver of Wilson’s Rule 410 rights a clear

and explicit condition of his plea agreement. Because we must resolve any

ambiguities against the Commonwealth, Kroh, supra, we find that

admission of the statement was in error.

         Even if we conclude that Wilson did not waive his Rule 410 rights, we

must determine whether the admission of his statement at trial is harmful

error.    A new trial is not required if the trial court’s error is harmless and

could not have contributed to the verdict. Commonwealth v. McCloskey,

656 A.2d 1366 (Pa. Super. 1995).          Where the trial error arises under state

law, the proper standard for determining whether an evidentiary error is

harmless is a question of state law.         Id. An error is harmless only if the

appellate court is convinced beyond a reasonable doubt that the error is

harmless. Commonwealth v. Story, 383 A.2d 155 (Pa. 1978).

         In Commonwealth v. Burno, 154 A.3d 764 (Pa. 2017), our Supreme

Court recently addressed the issue of admission of a defendant’s inculpatory

statements, made during plea negotiations, in violation of Rule 410.

Although the Court concluded that the trial court erred in admitting the

statements, it nonetheless affirmed the defendant’s judgment of sentence

                                         - 11 -
J-A22029-17



finding that the error was harmless where the tainted evidence was

substantially similar to the untainted evidence, the untainted evidence was

indisputable, and the plea statement was merely cumulative of incriminating

tape recorded statements that defendant had made from the jail which were

played to the jury during trial. Id. at 787-88.

      Here, Wilson claims that the admission of his statement was so

prejudicial that it essentially foreclosed his ability to present a meaningful

defense. Specifically, he asserts that the proffer “corroborated statements

by [his] alleged co-conspirators, establish[ed] his presence at the scene,

connect[ed] him with the Black P-Stone gang, and establish[ed] a motive for

the crime.” Appellant’s Brief, at 26.

      It is well-settled that the Commonwealth bears the burden of

establishing that an error was harmless beyond a reasonable doubt.       See

Commonwealth v. Story, 383 A.2d 155, 162 n.11 (Pa. 1978). This Court

has explained:

      This burden is satisfied when the Commonwealth is able to show
      that: (1) the error did not prejudice the defendant or the
      prejudice was di minimis; or (2) the erroneously admitted
      evidence was merely cumulative of other untainted evidence
      which was substantially similar to the erroneously admitted
      evidence; or (3) the properly admitted and uncontradicted
      evidence of guilt was so overwhelming and the prejudicial effect
      of the error was so insignificant by comparison that the error
      could not have contributed to the verdict.

Commonwealth v. Levanduski, 907 A.2d 3, 21 (Pa. Super. 2006) (en

banc).



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J-A22029-17



       The following requirements must be met before a court may conclude

that improperly admitted evidence is merely cumulative of other evidence

presented and, therefore, did not affect the jury verdict:

       (1) There should be substantial similarity, in type of evidence
       and incriminating factual details, between the tainted evidence
       and the untainted evidence of which it is ‘cumulative’[;] (2) the
       untainted evidence should be indisputable, either because the
       facts are in some way affirmatively accepted by the defendant or
       for other reasons[; and] (3) care should be taken that the
       ‘untainted’ evidence in no way derives from the tainted evidence.

Bruno, 154 A.3d at 787 (citing Story, supra at 165).

       After a careful review of the record, we are not convinced, beyond a

reasonable doubt, that the error in admitting Wilson’s statement was

harmless. Story, supra. Evidence of a reduced verdict (here, third-degree

rather than first degree murder)9 to show an error was harmless has been

rejected by our Supreme Court. See Commonwealth v. Turner, 454 A.2d

537 (Pa. 1982).

       In addition, here Jacqueline Harrigan was the only eyewitness to

testify for the Commonwealth. She, herself, was an accomplice to the same

crime and, admittedly, an unreliable source. In its brief, the Commonwealth




____________________________________________


9
  The Commonwealth charged Wilson with and the court charged the jury on
first-degree murder, third-degree murder, criminal conspiracy to commit
criminal homicide, tampering with evidence, and three counts of REAP. The
criminal homicide charges were also charged separately as direct liability and
accomplice liability. N.T. Jury Trial, 6/15/16, at 138.



                                          - 13 -
J-A22029-17



relegates a portion of a footnote10 to analyze whether it was harmless error

to admit Wilson’s statement under Rule 410, stating:

       Assuming arguendo that it was error to utilize the statement or
       any portion thereof the evidence was harmless in light of the
       Pennsylvania Supreme Court’s analysis in Burno[,] [s]upra[,]
       where the statement was corroborated by the testimony of an
       eyewitness, i.e., the co-defendant Jacqueline Harrigan who
       clearly witnessed the appellant committing the drive[-]by
       shooting along with the co-defendant Daygunn Mitchell [or, Buy
       Buy] and also heard the appellant’s statements following the
       drive by as he instructed the driver on how to leave the scene.
       Additional corroboration included appellant’s texts to his co-
       defendant Mitchell later in the day. Additionally, the strong
       sentimental connection the appellant felt with the Black P-
       Stone gang and its leaders Sirvonn Taylor was greatly
       emphasized in several recorded inmate telephone conversations
       the appellant had with Taylor in which he wanted “status” for his
       work on behalf of the gang and continued loyalty to its leader.
       Further, [Wilson’s] flight to avoid apprehension was properly
       utilized in trial against him as further consciousness of guilt. As
       a result of the foregoing and in light of the Burno analysis, any
       error was harmless.

Commonwealth’s Brief, at 26 n.6 (emphasis added).

       We first note that Harrigan’s testimony hardly amounted to her

“clearly witness[ing Wilson] commit[] the drive by shooting.” Id. At trial,

Harrigan, testifying for the Commonwealth, gave the following testimony

regarding the shooting:

       It was in my right ear, and I was turned like this to ash out my
       window, so it was directly behind me.

____________________________________________


10
  We note that the trial court never addressed harmless error, finding that
Wilson had waived his rights under Rule 410, and, thus, his statement was
admissible.



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J-A22029-17



                                   *    *   *
      Because I was ashing out my cigarette, I could see in the side-
      view mirror Shoota hanging out the window.

                                    *    *     *
      Yeah, he was like leaning, but his full upper body was out of the
      window.

                                    *    *    *

      The first shot went off in my ear, and then I saw the second shot
      in the side-view mirror, and I saw it light him up.

                                    *    *    *

      The flare from the gun. I could see his hair, and like I could see
      that his whole upper body was out of the window, and then by
      the time the third shot went off I put my head down.

                                    *    *    *

      Shoota tells [the driver] to go, to continue driving, because I
      think when she got scared she stopped and he starts yelling at
      her to go, go, go, and she takes off down the road. And then he
      tells her “Drive slow, I’m not trying to get pulled over.”

N.T. Jury Trial, 6/13/16, at 52-54. Not only was Harrigan in the process of

putting out her cigarette and facing the front of the car when she heard the

first shot ring out, but she never definitely stated that she saw Wilson with

the gun in his hand or saw him shoot it. Rather, Harrigan testified that she

saw Wilson hanging out of the car and that the fired shot “lit him up.”

      By contrast, Wilson stated that he told Day Day and the group that if

he knew they were going to try to do something “[he] wouldn’t [have] even

came [sic] . . . [he] would have been with my shorty in my brother[’s]

crib[,]” that he had never touched the gun and never shot the gun that



                                    - 15 -
J-A22029-17



day.11 Statement under Oath of Brandon E. Wilson, 5/21/14, at 33, 44, 71.

Then he stated that he tried to dissuade Day Day from using the gun, that

he told him “no,” and was about to reach for Day Day’s arm when the first

shot went off. Id. Wilson then stated that he grabbed Day Day’s hand, Day

Day told the driver to slow down, but Day Day continued to shoot, firing

three more shots and hitting the window of the room where the victim was

sleeping. Id. at 34. Finally, Wilson stated that he told the driver of the car,

immediately following the shooting, to slow down because he did not want to

get in an accident. Id.

       Under these facts, one can hardly say that Harrigan’s testimony was

cumulative of Wilson’s; it was not substantially similar to Wilson’s statement,

nor was her testimony indisputable.                Story, supra; Burno, supra.

Moreover, we cannot conclude the admission of Wilson’s statement resulted

in little to no prejudice or that the admitted and uncontradicted evidence of

guilt was so overwhelming.          Levanduski, supra.    Accordingly, we do not

find, beyond a reasonable doubt, that admission of Wilson’s statement could

not have contributed to the verdict. McCloskey, supra.

       Here, where Wilson did not waive his Rule 410 rights, the court

admitted his statement made during plea negotiations, and where admission


____________________________________________


11
  Wilson qualified this by stating that he had only touched the gun earlier in
the day at Day Day’s house. Statement under Oath of Brandon E. Wilson,
5/21/14, at 44.



                                          - 16 -
J-A22029-17



of the statement was not harmless error, we must reverse and remand for a

new trial.

       Judgment of sentence reversed. Case remanded for new trial.12

       Judge Platt joins the Memorandum.

       Judge Bowes files a Concurring Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/19/2018




____________________________________________


12
   Having concluded that Wilson is entitled to a new trial, we need not review
his remaining claims of trial and sentencing court error.



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