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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ELIO KEITH TORRES                        :
                                          :
                    Appellant             :   No. 1318 MDA 2019

        Appeal from the Judgment of Sentence Entered July 10, 2019
               In the Court of Common Pleas of Berks County
           Criminal Division at No(s): CP-06-CR-0002225-2018


BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.:            FILED: MARCH 30, 2020

      Elio Keith Torres appeals from the judgment of sentence entered in the

Berks County Court of Common Pleas following a jury verdict finding him guilty

of persons not to possess firearms, see 18 Pa.C.S.A. § 6105(a)(1). For this

offense, the trial court sentenced Torres to five to ten years of incarceration.

On appeal, Torres singularly challenges the trial court’s decision to deny his

request for specific jury instructions. After a thorough review of the record,

we affirm.

      In April 2018, an officer from the Reading Police Department responded

to a report of shots having been discharged from a firearm. At the purported

scene of the gunfire, that officer noticed blood leading into an adjacent

residence. The officer then entered that residence and found a man’s sneaker

with a hole through the toe area, a large pool of blood, a 9mm firearm, a spent
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shell casing, and a live round of ammunition. Subsequent DNA testing

established the existence of Torres’s DNA on the 9mm firearm.

      While the first officer searched the residence, a different officer found

Torres with a gunshot wound to his foot some four blocks away. Immediately

thereafter, Torres received medical treatment at a hospital. While at that

hospital, a third police officer photographed Torres’s injury.

      Torres, in explaining what happened, told him that something went

awry, which resulted in Torres discharging a firearm. However, Torres, a few

moments later, explained that someone else had shot him. After police

reviewed a communication between Torres and his girlfriend, two 9mm clips

were found underneath two porch boards close in proximity to where the

police had found Torres.

      Prior to trial, Torres requested several jury instructions dealing with the

voluntariness of the statement he made at the hospital as well as one jury

instruction addressing the Commonwealth’s burden of establishing the

commission of a crime, otherwise known as corpus delicti. Eventually, after

hearing the entirety of the Commonwealth’s case against Torres, the trial

court granted Torres’s request as to one of his proposed jury instructions, but

denied the other six suggestions. Ultimately, the jury found Torres guilty.

      After sentencing, Torres filed a timely pro se notice of appeal, and

thereafter, the court appointed counsel to represent him in this appeal. The




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appeal is now properly before us as both the trial court and Torres have

complied with the dictates of Pa.R.A.P. 1925.

      Torres raises one issue for our review:

      1. Did the trial court err in denying Torres’s request for six specific
         jury instructions addressing the voluntariness of his hospital
         statement as well as the Commonwealth’s failure to
         demonstrate that a crime was committed?

See Appellant’s Brief, at 4.

      Torres’s issue is a challenge to the instructions given to the jury.

      When reviewing a challenge to part of a jury instruction, we must
      review the jury charge as a whole to determine if it is fair and
      complete. A trial court has wide discretion in phrasing its jury
      instructions, and can choose its own words as long as the law is
      clearly, adequately, and accurately presented to the jury for its
      consideration. The trial court commits an abuse of discretion only
      when there is an inaccurate statement of the law.

Commonwealth v. Jones, 954 A.2d 1194, 1198 (Pa. Super. 2008). Further,

we have held that

      in reviewing a challenge to the trial court's refusal to give a specific
      jury instruction, it is the function of this [C]ourt to determine
      whether the record supports the trial court's decision. In
      examining the propriety of the instructions a trial court presents
      to a jury, our scope of review is to determine whether the trial
      court committed a clear abuse of discretion or an error of law
      which controlled the outcome of the case. A jury charge will be
      deemed erroneous only if the charge as a whole is inadequate, not
      clear or has a tendency to mislead or confuse, rather than clarify,
      a material issue. A charge is considered adequate unless the jury
      was palpably misled by what the trial judge said or there is an
      omission which is tantamount to fundamental error.
      Consequently, the trial court has wide discretion in fashioning jury
      instructions. The trial court is not required to give every charge
      that is requested by the parties and its refusal to give a requested
      charge does not require reversal unless the appellant was
      prejudiced by that refusal.

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Commonwealth v. Brown, 911 A.2d 576, 582-83 (Pa. Super. 2006)

(quotation marks omitted).

      We have further clarified that “[i]nstructions regarding matters which

are not before the court or which are not supported by the evidence serve no

purpose other than to confuse the jury.” Commonwealth v. Patton, 936

A.2d 1170, 1176 (Pa. Super. 2007). Additionally, “[t]he trial court is not

required to give every charge that is requested by the parties and its refusal

to give a requested charge does not require reversal unless the [a]ppellant

was prejudiced by that refusal.” Commonwealth v. Thomas, 904 A.2d 964,

970 (Pa. Super. 2006).

      In his brief, Torres bifurcates his arguments in support of his proposed

jury instructions by first discussing the applicability of corpus delicti. Then, he

discusses the voluntariness of the statement he made while at the hospital

and the attendant instructions he believes should have followed.

      Torres initially suggests that because the Commonwealth failed to

establish the corpus delicti, or the fact that a crime has been committed, in

this case, the trial court committed an error of law by not utilizing

Pennsylvania Suggested Criminal Jury Instruction Section 3.02A in its jury

instructions.

      It is beyond cavil that, in this Commonwealth, a confession is not
      evidence in the absence of proof of the corpus delicti .... [W]hen
      the Commonwealth has given sufficient evidence of the corpus
      delicti to entitle the case to go to the jury, it is competent to show
      a confession made by the prisoner connecting him with the crime.

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Commonwealth v. Taylor, 831 A.2d 587, 590 (Pa. 2003) (quotation marks

and citation omitted). “Corpus delicti” means, literally, “the body of a crime.”

Id. (citation omitted).

      The corpus delicti rule requires the Commonwealth to present
      evidence that: (1) a loss has occurred; and (2) the loss occurred
      as a result of a criminal agency. Only then can the Commonwealth
      ... rely upon statements and declarations of the accused to prove
      that the accused was, in fact, the criminal agent responsible for
      the loss.

Commonwealth v. Hernandez, 39 A.3d 406, 410 (Pa. Super. 2012).

      The rule is intended to prevent the use of confessions occurring in the

heat of the moment to convict a defendant where no crime has actually

occurred. See Commonwealth v. Ahlborn, 657 A.2d 518, 521 (Pa. Super.

1995). “The corpus delicti rule is a rule of evidence. Our standard of review

on appeals challenging an evidentiary ruling of the trial court is limited to a

determination of whether the trial court abused its discretion.” Hernandez,

39 A.3d at 410. (quotation marks and citations omitted).

      “[O]nly inculpatory statements of an accused are subject to the

protection of the corpus delicti rule.” Commonwealth v. Verticelli, 706 A.2d

820, 824 (Pa. 1998), abrogated on other grounds, Commonwealth v.

Taylor, 831 A.2d 587 (Pa. 2003). A statement is inculpatory if it “specifically

connects [the defendant] ... to criminal activity.” Id., at 824. Moreover, the

corpus deliciti can be demonstrated through circumstantial evidence. See

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


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      Torres states that because “there was no witness to the actual gunshot

other than [Torres] and because an inference of an accident at the hands of

another is just as likely as [Torres] holding a gun when it was fired, the

Commonwealth failed to establish through circumstantial evidence [the

possession-based firearms offense.]” Appellant’s Brief, at 12. He argues “the

court should have instructed the jury to at least consider the relevant portions

of the instructions that allowed for them, if they chose to do so, disregard

[Torres’s] statement [admitting to firing a weapon].” Id. When the court did

not issue the requested instruction, “the jury simply made a determination

that [Torres] actually uttered those words.” Id.

      We find that there was ample circumstantial evidence presented by the

Commonwealth establishing the existence of a crime, which, as manifested in

the court’s action, therefore allowed for the admission of Torres’s statement.

“The application of the corpus delicti rule occurs in two distinct phases.”

Ahlborn, 657 A.2d at 521. The corpus delicti rule requires the court to

determine whether, generally, the Commonwealth has established the

commission of a crime by a preponderance of the evidence. See id. Upon

satisfaction of this standard, a confession or admission would be admissible

as evidence. See id.

      After   this initial   admissibility   inquiry, the   Commonwealth must

thereafter prove, beyond a reasonable doubt, the corpus delicti of the crimes

charged. See id. Then, if a crime is proven by the Commonwealth beyond a


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reasonable doubt, the jury may consider an inculpatory statement as

evidence. See Commonwealth v. Fried, 555 A.2d 119, 121 (Pa. Super.

1989).

       Here, Torres stated to a police officer that “shit went off and I shot my

shit.” N.T., 9/12/19, at 110. As an inculpatory statement given that Torres

could not possess a firearm,1 the corpus delicti rule would therefore apply. As

such, the Commonwealth, in order to place Torres’s admission into evidence,

had to demonstrate by a preponderance of the evidence that a crime, in fact,

occurred, e.g., a person prohibited from possessing a firearm in fact did so.

       At trial, the Commonwealth utilized a theory of constructive possession

to demonstrate the possession of a firearm. “Constructive possession is an

inference arising from a set of facts that possession of the contraband was

more likely than not.” Commonwealth v. Walker, 874 A.2d 667, 677-78

(Pa. Super. 2005). “Constructive possession may be established by the totality

of the circumstances.” Id., at 678.

       The totality of the circumstances proffered by the Commonwealth

included: 1) a finding of pooled blood, a shoe with a bullet hole in it, a bullet,

and a spent shell casing; 2) the existence of Torres, a mere four blocks away

from those four items, carrying a wound consistent with the aforementioned


____________________________________________


1 The Commonwealth presented unrebutted evidence that Torres was
prohibited from possessing a firearm due to his prior conviction for robbery.
See N.T., 6/19/19, at 94-95. On appeal, Torres does not raise any challenge
concerning his status as a person not to possess a firearm.

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shoe; 3) the discovery of Torres’s DNA on the firearm; and 4) the retrieval of

a gun clip after reviewing a communication between Torres and his girlfriend.

Clearly, when considered together, the trial court did not abuse its discretion

when it concluded that the Commonwealth had established that a crime had

been committed by a preponderance of the evidence. This decision allowed

for the admission of Torres’s statement wherein he admitted to having fired a

weapon.

      Although the trial court employed the proper standard for admitting

Torres’s extra-judicial statement, there is no evidence that the jury was

charged correctly based on the “dual level of proof application of the [corpus

delicti] rule.” Ahlborn, 657 A.2d at 302. “[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. A jury instruction to that effect is, therefore, crucial[.]” Id.

      However, even if the trial court erroneously charged the jury, if there is

sufficient circumstantial evidence to convict an individual beyond a reasonable

doubt absent the confession, that person would not be entitled to a new trial.

See Reyes, 681 A.2d at 730. Accordingly, “we must determine whether

viewing all of the evidence, in the light most favorable to the Commonwealth

as verdict winner, supports the factfinder’s finding.” Id.

      Wholly excluding Torres’s statement, we are satisfied that there was

overwhelming     evidence    to   support    the   jury’s   conclusion   that   the


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Commonwealth proved Torres’s guilt beyond a reasonable doubt. Of most

importance is the finding of Torres’s DNA on the weapon he was charged with

possessing. See N.T., 9/12/19, at 169-70 (identifying that a swab of the pistol

revealed DNA that “matched the DNA profile obtained from Elio Torres”). From

this piece of evidence, the jury was free to conclude that Torres possessed the

firearm beyond a reasonable doubt. Therefore, Torres is not entitled to any

relief on this issue.2

       As to Torres’s argument that the trial court should have included five

specific instructions that controvert the voluntariness of his statement, this

argument, too, misses the mark. Torres offers approximately four sentences

in his brief to support his involuntariness assertion. See Appellant’s Brief, at

13. In summation, Torres implies that the officer taking photographs of his

injuries that were not life-threatening evinces conduct that could have been

reasonably likely to bring out an admission.




____________________________________________


2 Although we have analyzed this issue in the context of the corpus delicti
rule’s applicability, it is unclear how this rule specifically applies to a case
dealing exclusively with the crime of possessing a firearm while being a person
not to possess a firearm. A firearm, by itself, cannot provide the basis for a
finding that this specific crime has been committed. Obviously, as the name
suggests, this crime requires a specific individual that is not allowed to possess
a firearm to, in fact, possess that instrument. It would be hard, if not
impossible, for the Commonwealth to demonstrate that a persons not to
possess a firearm offense has been committed without necessarily implicating
Torres. In any event, delving into this topic is not inherently important as we
find there to be sufficient evidence for the jury to adjudicate guilt beyond a
reasonable doubt.

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      Torres neither cites to the record nor identifies any authority in support

of his argument. Arguably, Torres has waived this issue as the failure to

support an argument with pertinent authority is a violation of our briefing rules

which results in waiver of the unsupported issue. See Commonwealth v.

Spotz, 18 A.3d 244, 281 n.21 (Pa. 2011) (without a “developed, reasoned,

supported, or even intelligible argument[, t]he matter is waived for lack of

development”).

      However, even if we were to not find waiver, his claim would still fall

short; there is simply no indication that Torres’s statement was not voluntary.

First, the officer at the hospital was the only officer present with Torres, and

he did not ride with Torres in the ambulance that traveled to the hospital. See

N.T., 9/12/19, at 107. That officer acted because, in accordance with his police

department’s standard practice, if an officer believes there to be a “a victim

involved, [a police officer] go[es] over to photograph the victim’s injuries,

injuries sustained during an incident[.]” Id.

      The officer in this case “briefly told [Torres] what [his] duties were and

the reason for [his] presence.” Id., at 115. He also explained to Torres that

he was there “to photograph his injury.” Id. Torres, by his own volition, told

the officer that “he wanted to tell [him] what happened.” Id., at 108, 110.

The officer did not ask for Torres to tell him what happened and did not “in

any way … explicitly or implicitly tell [Torres] or demonstrate to [Torres] that

he needed to tell [the officer Torres’s] story.” Id., at 110. However, after the


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officer radioed to his supervisor with the information Torres provided, Torres’s

demeanor changed, becoming nervous and rigid. See id., at 111-12.

      We conclude that the trial court did not abuse its discretion in denying

several jury instructions related to the voluntariness of Torres’s statement.

Other than mere speculation, Torres has offered nothing to controvert the

officer’s testimony describing the situation at the hospital as being

conversational instead of interrogatory. Furthermore, Torres does not suggest

that the officer’s behavior was equivalent to that of a custodial interrogation.

See Commonwealth v. Garvin, 50 A.3d 694, 698 (Pa. Super. 2012)

(identifying that if a defendant gives a statement without police interrogation,

we consider that statement to be voluntary and not subject to suppression).

      Based on the foregoing, Torres has failed to establish that it was in error

for the trial court to reject his proposed jury instructions. If the trial court had

read the jury instructions suggested by Torres, those instructions would not

have been supported by the record and resultantly only would have confused

the jury. As such, Torres is not entitled to relief, and we affirm his judgment

of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/30/2020

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