J-S33044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                      v.

JASON ERIC KUHNS

                           Appellant                  No. 1909 WDA 2015


                 Appeal from the PCRA Order December 1, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0005268-2011

BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD, J.*

DISSENTING STATEMENT BY FITZGERALD, J.:                 FILED JULY 29, 2016

        I believe that an evidentiary hearing was necessary to consider

Appellant’s Post Conviction Relief Act1 (“PCRA”) petition. Appellant claimed

trial counsel’s ineffectiveness for failing to seek suppression of his

statements and asserted that he (1) did not receive Miranda2 warnings, (2)

signed a Miranda waiver form without being apprised of his rights, and (3)

requested trial counsel to seek suppression on this basis, but counsel

refused. He noted he did not initial the Miranda waiver form beside each

warning, which was inconsistent with the interrogating detective’s trial

testimony about her general practices. The PCRA court ultimately dismissed

*
    Former Justice specially 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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Appellant’s petition without a hearing.      The court noted the detective

testified at trial that she apprised Appellant of his Miranda rights. The court

found Appellant’s assertion that he did not receive Miranda warnings was

not credible and self-serving when contrasted with the detective’s trial

testimony.

       A review of the record confirms that the interrogating detective

testified that she read Appellant his Miranda rights and transcribed his

answers on the form.      Trial counsel, through cross-examination of the

detective, contested the voluntariness of Appellant’s inculpatory statements.

However, counsel’s cross-examination focused on the detective’s training in

interrogation techniques, the length of the interrogation, and Appellant’s

substance abuse history.3    Counsel did not contest the threshold issue of

Appellant’s waiver of his Miranda rights. Moreover, Appellant elected not to

testify at trial.

       In my view, Appellant’s petition raised genuine issues of fact that

required credibility determinations from the PCRA court.     I further believe

that the court’s attempt at credibility determinations were premature

because the issue of whether Appellant was apprised of and waived his

Miranda rights was not developed at trial.     Therefore, I would remand for

an evidentiary hearing. See Pa.R.Crim.P. 907(1).


3
  The trial court also issued an instruction to the jury to determine the
voluntariness of Appellant’s inculpatory statement.



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     Thus, I respectfully dissent.




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