J-A11036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                          IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

BERNARD J. TERRELL,

                            Appellant                        No. 236 EDA 2015


             Appeal from the Judgment of Sentence January 12, 2015
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0011246-2014


BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.

DISSENTING MEMORANDUM BY SHOGAN, J.:                          FILED JULY 21, 2016

       Although the learned Majority presents a thoughtful analysis of

Appellant’s first issue, I am compelled to respectfully dissent with regard to

its determination of Appellant’s second issue addressing the admission of

Appellant’s statement without first establishing the corpus delicti of the

crime.

       The    corpus    delicti   rule   requires   proof   that   a   crime   occurred,

independent of self-incriminating statements made by an accused.                    Our

standard of review for a challenge to the corpus delicti rule is well settled.

       The corpus delicti rule is designed to guard against the “hasty
       and unguarded character which is often attached to confessions
       and admissions and the consequent danger of a conviction where
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*
    Former Justice specially assigned to the Superior Court.
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      no crime has in fact been committed.” 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.
      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 corpus delicti is literally the body of the crime; it
      consists of proof that a loss or injury has occurred as a result of
      the criminal conduct of someone. The criminal responsibility of
      the accused for the loss or injury is not a component of the rule.
      The historical purpose of the rule is to prevent a conviction
      based solely upon a confession or admission, where in fact no
      crime has been committed.            The corpus delicti may be
      established by circumstantial evidence. 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. Hernandez, 39 A.3d at 410-411 (emphasis in original)

(quoting Commonwealth v. Young, 904 A.2d 947, 956 (Pa. Super. 2006)).

      With this standard in mind, we must determine the corpus delicti of

the crime charged, i.e., carrying a firearm on public streets or property in

Philadelphia in violation of the Pennsylvania Uniform Firearms Act (“PUFA”).

The   relevant   law   provides   that    the   Commonwealth   had   to   prove,

independent of Appellant’s statement, that (1) an individual carried a firearm

at any time (2) on the public streets or public property in the City of




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Philadelphia.1 Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa. Super.

2000). If the Commonwealth established both prongs by a preponderance

of the evidence, we may find no abuse of discretion in the introduction of

Appellant’s inculpatory statement at trial.

        In addressing this issue, the trial court stated the following:

                In the instant matter, the Commonwealth’s independent
        evidence consisted of Officer Kwiatkowski discovering a gun in
        the first bedroom under the bed. (N.T. 1/12/15 pp. 19, 24).
        Moreover, [Appellant] was located in the kitchen area adjacent
        to the fire escape, moments after a radio call indicated that
        someone was trying to exit the apartment via the fire escape.
        (N.T. 1/12/15 pp. 16-17, 21-22). This evidence adequately
        fulfilled the Commonwealth’s burden of demonstrating the
        corpus delicti for Carrying Firearms on Public Streets or Public
        Property in Philadelphia under § 6108 by a preponderance of the
        evidence. Therefore, the introduction of [Appellant’s] statement
        into evidence was proper.

Trial Court Opinion, 4/27/15, at 11.


____________________________________________


1
    The Pennsylvania Crimes Code defines the crime as follows:

              No person shall carry a firearm, rifle or shotgun at any
        time upon the public streets or upon any public property in a city
        of the first class unless:

              (1) such person is licensed to carry a firearm; or

              (2) such person is exempt from licensing under
              section 6106 of this title (relating to firearms not to
              be carried without a license).

18 Pa.C.S. § 6108. In addition, lack of a license is not an element of this
statutory provision. Commonwealth v. Ford, 461 A.2d 1281, 1287 (Pa.
Super. 1983).



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      I fail to see how the evidence of a gun under a bed in a bedroom of a

private residence and Appellant near a fire escape in the kitchen of a private

residence could possibly establish both prongs of the crime charged by a

preponderance of the evidence. Even if the Commonwealth established that

the gun was under Appellant’s bed in Appellant’s bedroom, absent

Appellant’s statement, the Commonwealth did not prove by a preponderance

of the evidence that Appellant carried the gun on a public street or property

which could satisfy the corpus delicti rule. Therefore, I am constrained to

conclude that the Commonwealth failed to meet its burden necessary for the

admission   of   Appellant’s   inculpatory   statement   regarding   the   gun.

      Accordingly, I respectfully register my dissent.

      Judge Mundy has joined the Dissenting Memorandum.




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