J-S03020-20


                                2020 PA Super 77

    COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
    DAWIAN HARPER                         :
                                          :
                    Appellant             :   No. 711 WDA 2019

             Appeal from the PCRA Order Entered April 29, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division
                      at No(s): CP-02-CR-0009765-2016


BEFORE:      McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*

OPINION BY McCAFFERY, J.:                            FILED MARCH 30, 2020

        Dawian Harper (Appellant) appeals from the order entered in the

Allegheny County Court of Common Pleas, denying his timely petition for

relief under the Post Conviction Relief Act1 (PCRA).       Appellant avers the

court erred in denying his claims that trial counsel was ineffective for: failing

to seek suppression of Appellant’s inculpatory statements on both Miranda2

and corpus delicti grounds; and failing to object to a police officer’s lay

testimony that Appellant’s gunshot wound was self-inflicted.       After careful

review, we reverse the order and remand for a new trial.

        Appellant was charged with persons not to possess firearms and

*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S.§§ 9541-9546.

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