J-S41007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

AARON REED BROWN,

                            Appellant               No. 1533 MDA 2014


        Appeal from the Judgment of Sentence entered August 4, 2014,
               in the Court of Common Pleas of Luzerne County,
            Criminal Division, at No(s): CP-40-CR-0001380-2012



BEFORE: ALLEN, LAZARUS, and PLATT*, JJ.

MEMORANDUM BY ALLEN, J.:                                FILED JULY 09, 2015

        Aaron Reed Brown (“Appellant”) appeals from the judgment of

sentence imposed following his conviction for possession of a firearm by a

prohibited person.1 We affirm.

        The trial court summarized the pertinent facts and procedural history

as follows:

              On or about April 6, 2012, at approximately 6:12 p.m.,
        [Appellant] was the subject of a traffic stop by members of the
        Pennsylvania State Police (PSP) conducting speed enforcement
        on Interstate 81 south of mile marker 150 in Butler Township,
        Luzerne County. ... [Appellant] was operating a Chrysler 200
        when he entered the radar zone of influence wherein it was
        determined the vehicle was travelling at a speed of
____________________________________________


1
    18 Pa.C.S.A § 6105(a)(1).


*Retired Senior Judge assigned to the Superior Court.
J-S41007-15


     approximately 92 miles per hour in a 65 mile per hour speed
     zone. The PSP gave chase with activated lights and intermittent
     siren to accomplish the traffic stop.           Notwithstanding,
     [Appellant] continued to travel for approximately 4/10 of a mile
     before electing to stop on a narrow berm of the road, which PSP
     felt placed him in danger due to the proximity of the vehicles to
     traffic. [FN 1 The PSP further observed he was concerned
     because the area where [Appellant] stopped was located by an
     overpass which placed him at a disadvantage should the
     occupant choose to flee up the embankment thereby precluding
     the use of the cruiser to give chase.] The PSP testified that the
     delay in stopping and failure to do so in a safer location where
     the berm was wider aroused suspicion.

            [The officer exited his vehicle and approached Appellant’s
     vehicle, and when the occupants rolled down the windows, the
     officer detected the strong odor of marijuana].             The PSP
     determined the vehicle was a rental leased to the passenger
     identified as Barbara Rita Tullis (Tullis). Additionally, [Appellant]
     informed the PSP that he was operating the vehicle with a
     suspended license.

           Ultimately, the PSP obtained consent from both [Appellant]
     and Tullis (as Lessor) to conduct a vehicle search. [FN 2 Tullis
     executed a standard PSP written consent form authorizing the
     search]. As a result of the search, the PSP discovered a purse
     on the passenger side floor. When unzipped, the purse revealed
     a pistol with the barrel pointing in the Trooper’s direction. The
     gun was eventually seized and identified as a semi-automatic .40
     caliber Springfield Armory pistol. A magazine contained therein
     was located with 10 rounds of ammunition.           Neither party
     possessed a concealed carry permit.

           [Appellant] acknowledged the gun did not belong to Tullis
     and noted it was acquired by him in the weeks prior to the stop.
     Additionally, [Appellant] conceded it had taken a period of time
     to pull over because he was secreting the gun in Tullis’ purse.

           In addition to the verbal exchange at the scene, [FN3
     [T]he traffic stop was video recorded and the same was admitted
     into evidence.] [Appellant] spoke to the PSP while transported to
     the Hazelton PSP Barracks. Upon arrival, he received Miranda
     warnings and thereafter provided a written statement. The


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      document reveals [Appellant] admitted the gun was acquired by
      and belonged to him.

Trial Court Opinion, 11/25/14, at 1-2 (one footnote omitted).

      Appellant was subsequently charged with possession of a firearm by a

prohibited person.   On January 16, 2013, Appellant filed a suppression

motion, and the trial court conducted a hearing on April 5, 2013. By opinion

and order dated July 19, 2013, the trial court denied Appellant’s suppression

motion.

      A jury trial commenced on April 22, 2014, after which the jury

rendered its guilty verdict.   On August 4, 2014, the trial court sentenced

Appellant to a term of imprisonment of 3 to 6 years. Appellant filed a notice

of appeal on August 28, 2014.

      Appellant raises three issues for our review:


            Whether the trial court erred by denying Appellant’s
      motion to suppress where the Appellant had a reasonable
      expectation of privacy in the vehicle, and neither the Appellant
      nor his passenger, knowingly, voluntarily, or intelligently
      consented to the search of the vehicle? All evidence resulting
      from such statements should have been suppressed as fruit of
      the poisonous tree.

            Whether the trial court erred by denying the Appellant’s
      motion to suppress where the Appellant’s statements at the
      scene were the result of a custodial interrogation and given in
      the absence of Miranda warnings? All evidence resulting from
      such statements should have been suppressed as fruit of the
      poisonous tree.

             Whether the Commonwealth failed to present evidence
      sufficient to establish beyond a reasonable doubt that Appellant
      knowingly possessed, used, controlled, sold, transferred or
      manufactured a firearm in this Commonwealth in violation of 18

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      Pa.C.S.A. § 6105(a)(1)? A conviction cannot be sustained on
      the Appellant’s statements alone where the Commonwealth
      failed to independently establish the corpus delicti of the crime
      charged.

Appellant’s Brief at 2.

      Our scope and standard of review is well-settled:

             An appellate court's standard of review in addressing a
      challenge to a trial court's denial of a suppression motion is
      limited to determining whether the factual findings are supported
      by the record and whether the legal conclusions drawn from
      those facts are correct. [Because] the prosecution prevailed in
      the suppression court, we may consider only the evidence of the
      prosecution and so much of the evidence for the defense as
      remains uncontradicted when read in the context of the record
      as a whole. Where the record supports the factual findings of
      the trial court, we are bound by those facts and may reverse
      only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Reese, 31 A.3d 708, 721 (Pa. Super. 2011) (citations

omitted).

      Here, Appellant argues that the trial court erred in concluding that he

had no expectation of privacy in the car or in the contents of the bag found

underneath the passenger seat, and therefore the trial court erred in

denying his suppression motion.     Appellant’s Brief at 13-15.   Before we

address Appellant’s claim that the denial of suppression was improper, we

must determine whether Appellant had standing to suppress the search, and

a reasonable expectation of privacy in the vehicle.       Commonwealth v.

Caban, 60 A.3d 120, 126 (Pa. Super. 2012).

      “[U]nder Pennsylvania law, a defendant charged with a possessory

offense has standing to challenge a search.” Id. quoting Commonwealth


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v. Perea, 791 A.2d 427, 429 (Pa. Super. 2002). Thus, Appellant, who was

charged with a possessory crime, had standing to raise a suppression

challenge. However, “[a] defendant must separately establish a legitimate

expectation   of   privacy   in   the    area   searched   or   thing   seized.”

Commonwealth v. Burton, 973 A.2d 428, 435 (Pa. Super. 2009).

“[U]nder both our state and the federal constitutions, a defendant cannot

prevail upon a suppression motion unless he demonstrates that the

challenged police conduct violated his own, personal privacy interests.”

Commonwealth v. Powell, 994 A.2d 1096, 1108 (Pa. Super. 2010)

quoting Commonwealth v. Millner, 888 A.2d 680, 692 (Pa. 2005). “The

constitutional legitimacy of an expectation of privacy is not dependent on the

subjective intent of the individual asserting the right but on whether the

expectation is reasonable in light of all of the surrounding circumstances.”

Caban, 60 A.3d at 126. In order to succeed on his suppression challenge,

Appellant was required to demonstrate that he had a reasonable expectation

of privacy in the vehicle and/or an expectation of privacy in the bag found

under the passenger seat.

      The trial court concluded that Appellant lacked an expectation of

privacy in the vehicle, explaining:

          Corporal Donnini identified the female passenger as
     Barbara Tullis (Tullis) and the male passenger as Aaron Brown,
     [Appellant].

           After processing information through the computer in his
     cruiser, Corporal Donnini learned that [Appellant’s] operating

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    privileges were suspended and that he had prior arrests relating
    to possession of marijuana.

                                      ...

          During the stop, Corporal Donnini learned that the Chrysler
    was a rental vehicle through Enterprise rental car company
    (Enterprise), which was the registered owner.

          Tullis was the renter of the Chrysler and presented the
    rental agreement to Corporal Donnini.

          The rental agreement provided for no authorized drivers
    but Tullis.

          Corporal Donnini requested that [Appellant] and [Tullis]
    exit the Chrysler. Each was “patted down” but not cuffed nor
    arrested.

          Corporal Donnini asked [Appellant] and Tullis about the
    odor of marijuana.

          [Appellant] denied smoking marijuana and attributed any
    odor to being in the company of others smoking it during a
    previous stop in Wilkes-Barre while travelling to Harrisburg
    currently.

          Corporal   Donnini   was    suspicious  of  [Appellant’s]
    explanation particularly in light of the delay in stopping the
    Chrysler.

          Corporal Donnini asked [Appellant] for consent to search
    the vehicle. [Appellant] gave consent.

         Corporal Donnini then requested consent to search the
    Chrysler from Tullis, who rented the car, and explained the
    reasons for his request.

          Corporal Donnini explained to Tullis that, as his other
    option, he would apply for a search warrant and take them back
    to the PSP barracks.

          Based on all the facts and circumstances, Corporal Donnini
    believed that he would be able to secure a search warrant.

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          Tullis gave verbal consent to search the Chrysler and
    signed a State Police Waiver of Rights and Consent to Search
    standardized form consenting to the search in writing.

          Corporal Donnini partially explained the form to Tullis.

          Corporal Donnini told Tullis to read the form before signing
    it.

          Corporal Donnini verified with Tullis that she read and
    understood the consent form, and explained that the consent was
    voluntary and that she could stop the search at any time.
                                       ...

         The operator of a vehicle does not have a legitimate
    expectation of privacy in said vehicle where it is not registered in
    his name and there is no evidence that the vehicle is being
    operated with the consent of the registered owner.
    Commonwealth v. Burton, 973 A.2d 428 (Pa. Super 2009).

         The operator of a rental car does not have a legitimate
    expectation of privacy in said vehicle where he is not an
    authorized driver and the rental agreement has expired.
    Commonwealth v. Jones, 874 A.2d 108 (Pa. Super. 2005).

          Instantly, [Appellant] has failed to demonstrate a legitimate
    expectation of privacy in the Chrysler where: 1. he was operating
    the vehicle unlawfully with a suspended licensed; 2. he did not
    own the vehicle; 3. he was not authorized to operate the vehicle
    by the registered owner (Enterprise); 4. the rental agreement
    was breached when he began operating the vehicle as an
    unauthorized operator; and 5. the nature of the connection
    between [Appellant], the vehicle, and Tullis – the authorized
    operator and renter of the vehicle – is unclear and undeveloped
    in the record.

          Accordingly, [Appellant] has failed to establish standing to
    challenge the search of the Chrysler.

           Furthermore, [Appellant] has failed to demonstrate a
    legitimate expectation of privacy in the purse found in the
    Chrysler.


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           Accordingly, [Appellant] has failed to establish standing to
     challenge the search of the purse.

           The consent by Tullis to search the Chrysler was knowingly,
     voluntarily, and intelligently given and therefore valid.

Trial Court Findings of Fact and Conclusions of Law, 7/19/13, at 2-5.

      We agree with the trial court that Appellant failed to establish a

constitutional expectation of privacy in the rental automobile given that,

although Appellant was the operator of the vehicle, he was not the named

lessee, and he was not an authorized driver. See Jones, 874 A.2d at 112

(2005). At the suppression hearing, Appellant did not present any evidence

about his relationship with Ms. Tullis, or that he occupied and drove the

vehicle with the authorization or permission of Enterprise, the registered

owner.   Nor did Appellant demonstrate that he had any other ownership

interest in the vehicle. “A defendant moving to suppress evidence has the

preliminary burden of establishing standing and a legitimate expectation of

privacy. … The determination [as to] whether [a] defendant has met this

burden is made upon evaluation of the evidence presented by the

Commonwealth and the defendant.”            Powell, 994 A.2d at 1103-1104

quoting Burton, 973 A.2d at 435 (Pa. Super.2009) (en banc). Here, given

the deficit of evidence that Appellant had a legitimate expectation of privacy

in the vehicle or the contents of the bag containing the firearm, we find no

abuse of discretion in the trial court’s denial of his suppression motion.




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      Furthermore, even if Appellant did establish a reasonable expectation

of privacy in the bag, the search was permissible based on the consent of

Ms. Tullis, who authorized the search of the vehicle.


            [T]he Commonwealth bears the burden of establishing that
      a consent is the product of an essentially free and unconstrained
      choice—not the result of duress or coercion, express or implied,
      or a will overborne—under the totality of the circumstances. The
      inquiry is ultimately objective, and employs a reasonable person
      test presupposing an innocent person. The test for the validity
      of a consent to search is the same for both the Fourth
      Amendment and Article I, Section 8, i.e., that the consent is
      given voluntarily.

             In reviewing the totality of the circumstances,
      Pennsylvania courts have considered a variety of factors to
      assess the voluntariness of the consent, including the length and
      location of the detention; whether there were any police abuses,
      physical contact, or use of physical restraints; any aggressive
      behavior or any use of language or tone by the officer that were
      not commensurate with the circumstances; whether the
      questioning was repetitive and prolonged; whether the person
      was advised that he or she was free to leave; and whether the
      person was advised of his or her right to refuse to consent. No
      one factor in the voluntariness inquiry is controlling.

Commonwealth v. Caban, 60 A.3d 120, 130-31 (Pa. Super. 2012)

(citations and internal quotations omitted).

      Here, the record contains no evidence that Corporal Donnini coerced

Ms. Tullis’s consent.   The investigatory detention took place in an open

location, on an exit ramp of a public highway, during the evening, at 6:12

p.m. Ms. Tullis testified that she was not detained, and there is nothing to

indicate that the officer engaged in any aggressive or threatening behavior,

made physical contact with Ms. Tullis other than to pat her down for his


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safety, or used any physical restraints. While Appellant maintains that Ms.

Tullis’s consent was not voluntary and knowing, Ms. Tullis was informed that

she had the right to refuse consent, and she testified that she understood

the language in the “Waiver of Rights and Consent to Search” form which

stated that she had a right to refuse consent.           N.T., 4/5/13, at 58-59.

Accordingly, having weighed all of the relevant factors, we find no error in

the trial court’s determination that Ms. Tullis’ consent to search was

voluntary    and    that    Corporal    Donnino’s   search   of   the   vehicle   was

constitutionally permissible.2

____________________________________________


2
  We additionally note that Corporal Donnini’s search of the interior of Ms.
Tullis’ purse located on the floor on passenger side of the vehicle was lawful.
In Commonwealth v. Yedinak, 676 A.2d 1217, 1220 (Pa. Super. 1996),
we explained:

       It is well established that the government may search a vehicle
       without a warrant or probable cause if the owner of the vehicle
       voluntarily consents to the search. Furthermore, the scope of a
       search is generally limited to the areas where the object of the
       search may be found, but the party consenting to a search may
       restrict authorization to defined areas.     The standard for
       measuring the scope of a suspect's consent under the Fourth
       Amendment is that of objective reasonableness-what would the
       typical reasonable person have understood by the exchange
       between the officer and the suspect?

       In Yedinak, the officer, during a traffic stop, suspected the driver to
be under the influence of a controlled substance and smelled the strong odor
of marijuana emanating from the vehicle. We reasoned that given the
officer’s suspicions that the suspect was under the influence, after the
suspect provided general consent to a search of his vehicle, “the officers
were free to search any containers within the vehicle that could reasonably
contain narcotics.” Yedinak, 676 A.2d at 1220.
(Footnote Continued Next Page)


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      In his second issue, Appellant argues that his statement to Corporal

Donnino that the gun belonged to him should have been suppressed because

he was in custody at the time the statement was made, and had not been

provided with Miranda warnings. Appellant’s Brief at 16-19.

       “The law is clear that Miranda is not implicated unless the individual

is in custody and subjected to interrogation.”                Commonwealth v.

Umstead, 916 A.2d 1146, 1149-1152 (Pa. Super. 2007) (citations omitted)

(emphasis added); see Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct.

1682, 64 L.Ed.2d 297 (1980).              “Police detentions only become custodial

when, under the totality of the circumstances, the conditions and/or duration

of the detention become so coercive as to constitute the functional

equivalent of formal arrest … [T]he test focuses on whether the individual

being interrogated reasonably believes his freedom of action is being

restricted.”   Commonwealth v. Baker, 963 A.2d 495, 501 (Pa. Super.

2008) (citations omitted).

            The standard for determining whether an encounter with the
      police is deemed custodial is an objective one based on a totality of
      the circumstances with due consideration given to the reasonable
      impression conveyed to the person interrogated.

                                                    ***
                       _______________________
(Footnote Continued)


      Similarly, in the present case, given that Corporal Donnino detected
the strong smell of marijuana when he approached the vehicle, he was free
to search the purse after Ms. Tullis provided consent to search the vehicle,
and such search was reasonable under the circumstances.



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           Indeed, police detentions only become “custodial” when under
     the totality of the circumstances the conditions and/or duration of the
     detention become so coercive as to constitute the functional equivalent
     of formal arrest.

            Among the factors the court utilizes in determining, under the
     totality of the circumstances, whether the detention became so
     coercive as to constitute the functional equivalent of a formal arrest
     are: the basis for the detention; the duration; the location; whether
     the suspect was transferred against his will, how far, and why;
     whether restraints were used; the show, threat or use of force; and
     the methods of investigation used to confirm or dispel suspicions.


In re B.T., 82 A.3d 431, 441-442 (Pa. Super. 2013) (citations omitted).

     Interrogation is defined as “police conduct calculated to, expected to,

or likely to evoke admission.” Umstead, 916 A.2d at 1152.

     The definition of interrogation includes the “functional
     equivalent” of express questioning as the United States Supreme
     Court explained in Rhode Island v. Innis, 446 U.S. 291, 100
     S.Ct. 1682, 64 L.Ed.2d 297 (1980):

           [T]he term “interrogation” under Miranda refers not
           only to express questioning, but also to any words or
           actions on the part of the police (other than those
           normally attendant to arrest and custody) that the
           police should know are reasonably likely to elicit an
           incriminating response from the suspect ... A
           practice that the police should know is reasonably
           likely to evoke an incriminating response from a
           suspect thus amounts to interrogation. But, since
           the police surely cannot be held accountable for the
           unforeseeable results of their words or actions, the
           definition of interrogation can extend only to words
           or actions on the part of police officers that they
           should have known were reasonably likely to elicit an
           incriminating response.

     Id., at 300–301, 100 S.Ct. 1682 (emphasis omitted).



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Commonwealth v. McAliliey, 919 A.2d 272 (Pa. Super. 2007) (some

citations omitted).

      “In making this determination, Innis requires that we, as a reviewing

court, examine the totality of the circumstances surrounding the police

interaction with an individual in custody and focus on [the individual's]

perceptions and give relevance to the officer’s constructive knowledge.”

Commonwealth v. Briggs, 12 A.3d 291, 323 (Pa. 2011) (citations and

internal quotations omitted); see also Commonwealth v. Cruz, 71 A.3d

998, 1003 (Pa. Super. 2013) (citations omitted) (“In deeming an interaction

to be a custodial interrogation, the police officer’s subjective intent does not

govern the determination, but rather the reasonable belief of the individual

being interrogated”).

      Here, Corporal Donnini testified that when he initiated the traffic stop,

he illuminated his emergency lights and siren. N.T., 4/5/13, at 6-7. Upon

stopping the vehicle, the police officer approached the vehicle and detected

a strong odor of marijuana. Id. at 9. The officer described his interaction

with Appellant and Ms. Tullis as “a very nonchalant encounter, [they] didn’t

appear nervous, very laid back, fairly cordial.”       Id. at 10.     Appellant

informed the officer that his license had been suspended, and the officer

verified Appellant’s and Ms. Tullis’s identification information using the

computer in his police cruiser, which revealed that Appellant had previous

convictions for possession of marijuana. Id. at 9-10. Corporal Donnini then


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asked Appellant and Ms. Tullis to exit the vehicle, and obtained their consent

to search the vehicle. Id. at 14-15. Corporal Donnini testified that he did

not restrain or handcuff either Appellant or Ms. Tullis, although he did

conduct a pat-down for his own safety. Id. at 20-21. Corporal Donnini then

conducted a search of the vehicle, during which he located the firearm in a

purse on the floor. Id. at 23. Corporal Donnini then returned to Appellant

and Ms. Tullis and testified as follows regarding their exchange:

Corporal Donnini:              I ... walked back to [Appellant] and Ms.
                               Tullis and asked them if either of them
                               had a ... concealed weapons permit ... to
                               have the weapon. At this time, I didn’t
                               know it was ... an illegal firearm. If Ms.
                               Tullis would have had a concealed
                               weapon permit, then there would have
                               been no problem. Neither of them had a
                               concealed weapons permit.

                                      ***
                               I handcuffed [Appellant]. He stated that,
                               you know, the gun wasn’t Barbara’s and
                               he owned up and took ownership for it.
                               Then I went back and secured the pistol.

Assistant District Attorney:   To the best of your recollection, what
                               exactly did he say to you with regard to
                               his ownership of the gun?

Corporal Donnino:              I asked whose is it – or do either of you
                               have a permit? They both indicated that
                               they hadn’t. He was kind of hymning
                               [sic] and hawing, saying no, that’s not
                               hers. It’s not hers. I said, you know,
                               are you taking the blame for it? He
                               indicated yes, that it was his.
N.T., 4/5/13, at 23.




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      Based on the foregoing, Appellant argues that he was subjected to a

custodial interrogation when Corporal Donnino asked him if he owned the

gun, after he was handcuffed, and without first providing him with Miranda

warnings. We conclude, however, that even if Appellant was subjected to a

custodial interrogation when he was handcuffed by Corporal Donnino and

asked whether he was admitting to ownership of the handgun, Appellant is

not entitled to suppression.

      In Commonwealth v. DeJesus, 787 A.2d 394 (Pa. 2001) abrogated

on other grounds, Commonwealth v. Cousar, 593 Pa. 204, 928 A.2d 1025

(2007), without administering Miranda warnings, police officers subjected

the appellant to a custodial interrogation, during which the appellant made

incriminating statements. However, our Supreme Court concluded that even

if the defendant was subjected to a custodial interrogation without having

been provided with Miranda warnings, this error was cured by the fact that

the defendant was subsequently given Miranda warnings and signed a

Miranda waiver form, after which the defendant permitted the police to

record his confession.   Accordingly, the Court concluded in DeJesus that,

although the police officer’s initial interrogation violated Miranda, that did

not invalidate the defendant’s subsequent waiver of his rights and ensuing

confession. DeJesus, 787 A.2d at 405-407. See also Commonwealth v.

Schwing, 964 A.2d 8, 13 (Pa. Super. 2008) (even if the facts in DeJesus

would initially afford the defendant relief, he failed to prove that the police


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J-S41007-15


officer’s conduct tainted and invalidated his subsequent waiver of rights and

statement    since    after    the    administration   of   Miranda     warnings    was

completed,    the    officer   then    reviewed    with     the   defendant   his   prior

statements, which again were conducted and carried out upon videotaped

interview); Commonwealth v. Charleston, 16 A.3d 505 (Pa. Super.

2011) (failure to deliver Miranda warnings prior to interrogation did not

invalidate incriminating statements made by the defendant after subsequent

receipt of Miranda warnings and waiver thereof).

      Similarly, in this case, the record reflects that following Appellant’s

arrest at the scene, he was transported to the State Police barracks where

he was provided with Miranda warnings, after which Appellant informed the

police that the reason it had taken him so long to pull over was because he

was trying to secrete the gun in Ms. Tullis’ purse.               N.T., 4/5/13, at 24.

Moreover, Appellant was provided with written Miranda warnings, at the

bottom of which Appellant handwrote “it’s mine, the gun in [the] vehicle.”

Id. at 35-37.        In reliance on DeJesus, we conclude that Appellant’s

subsequent confession at the police station after he was provided with

Miranda warnings effectively cured any illegality that may have occurred

when Corporal Donnino initially asked Appellant if he was admitting to

ownership of the gun at the time of his arrest.                    Appellant’s second

suppression challenge thus fails.




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     In his third issue, Appellant argues that the Commonwealth failed to

present evidence sufficient to establish beyond a reasonable doubt that

Appellant knowingly possessed a firearm, because a conviction cannot be

sustained on the Appellant’s statements alone where the Commonwealth

failed to independently establish the corpus delicti of the crime charged.

Appellant’s Brief at 19-21. We find however, that Appellant’s corpus delicti

claim is waived.

     “The well-established corpus delicti rule provides that a criminal

conviction may not stand merely on the out[-]of[-]court confession of one

accused, and thus a case may not go to the fact[-]finder where independent

evidence does not suggest that a crime has occurred. This rule is rooted in

the hesitancy to convict a person of a crime solely on the basis of that

person’s statements.” Commonwealth v. Cuevas, 61 A.3d 292, 295 (Pa.

Super. 2013) (citations and internal quotations omitted). “The corpus delicti

rule is two-tiered; it must first be considered as a rule of evidentiary

admissibility using a prima facie standard, and later, under a beyond a

reasonable doubt standard, as one of proof for the fact-finder’s consideration

at the close of the case.”   Id. citing Commonwealth v. Reyes, 381-82,

681 A.2d 724, 727 (Pa. 1996).

            Under Pennsylvania law, the application of the corpus
     delicti rule occurs in two distinct phases.      The first phase
     involves the court's application of a rule of evidence governing
     the threshold question of the admissibility of the confession. In
     this first phase of the rule's application, the court must
     determine whether the Commonwealth has proven the corpus

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      delicti of the crimes charged by a mere preponderance of the
      evidence.     If the court is satisfied that, on the evidence
      presented, it is more likely than not that a wrong has occurred
      through criminal agency, then the confession and/or admissions
      of the defendant are admissible.

            The second phase of the rule’s application occurs after a
      confession has already been admitted into evidence. After the
      court has made its initial determination that the Commonwealth
      has proven the corpus delicti by a preponderance of the evidence
      and has ruled the confession to be admissible, the corpus delicti
      rule additionally requires that the Commonwealth prove to the
      jury’s satisfaction beyond a reasonable doubt, the corpus delicti
      of the crimes charged....

            [T]he law of Pennsylvania continues to require that the
      Commonwealth prove the existence of the corpus delicti beyond
      a reasonable doubt before the jury may consider the defendant’s
      confession.

Commonwealth v. Chambliss, 847 A.2d 115, 119-120 (Pa. Super. 2004)

(citations omitted)

      In Chambliss, this Court explained, however, that with regard to the

first prong of a corpus delicti challenge as to the evidentiary admissibility of

the challenged confession, where the defendant does not object to the

Commonwealth’s        admission   of   the   challenged   confession   during   the

Commonwealth’s presentation of the evidence, the defendant waives such a

challenge to the admissibility of the confession for purposes of appeal.

Chambliss, 847 A.2d at 120. Here, as the trial court observed: “A review

of the trial record demonstrates [that Appellant] did not object to or

otherwise raise any issue with respect to a violation of the corpus delicti

rule, thereby resulting in waiver.” Trial Court Opinion, 11/25/14, at 5. Our


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review of the record supports the trial court’s determination that Appellant

failed to raise a challenge to the evidentiary admissibility of his confession

during the Commonwealth’s presentation of the evidence at trial, and

therefore this claim is waived.

       Appellant counters that he has preserved his claim pertaining to the

second phase of the corpus delicti rule, which provides that after a

confession has already been admitted into evidence, the corpus delicti rule

additionally requires that the Commonwealth prove to the jury’s satisfaction

beyond a reasonable doubt, the corpus delicti of the crimes charged.

However, Appellant fails to direct this Court, nor are we able to discern,

where in the record he raised a corpus delicti challenge prior to jury

deliberation, in order to preserve such a claim.

       We recognize that in Chambliss, we explained that counsel’s failure to

raise a timely, first-phase corpus delicti challenge to the admissibility of the

confession did not prevent counsel from invoking the second-phase of the

rule, prior to the factfinder’s deliberation. Here, however, the record does

not reflect that Appellant’s counsel, any time during trial, identified a corpus

delicti challenge for the trial court’s consideration.3 Accordingly, Appellant’s

____________________________________________


3
  Compare with Chambliss, supra, where the appellant failed to raise a
corpus delicti claim at the time the Commonwealth presented the challenged
evidence to the jury, but subsequently raised a corpus delicti claim prior to
the case being submitted to the factfinder for deliberations, thereby
preserving his claim for appeal.



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corpus delicti claim is waived for purposes of appeal. See Pa.R.A.P. 302(a)

(Issues not raised to the trial court are waived and cannot be raised for the

first time on appeal); Commonwealth v. Brown, 701 A.2d 252, 254 (Pa.

Super. 1997) (“In order to preserve an issue for review, a party must make

a timely and specific objection.”).

      For the foregoing reasons, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/9/2015




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