J-S69030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JEFFREY ELDON MILES, SR.                 :
                                          :
                   Appellant              :   No. 181 MDA 2018

        Appeal from the Judgment of Sentence November 20, 2014
   In the Court of Common Pleas of Franklin County Criminal Division at
                     No(s): CP-28-CR-0001892-2012


BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY LAZARUS, J.:               FILED: NOVEMBER 9, 2018

     Jeffrey Eldon Miles, Sr., appeals from the judgment of sentence entered

in the Court of Common Pleas of Franklin County. We affirm.

     The trial court set forth the facts of this matter as follows:

     On August 24, 1995, Angie Daley (“Victim”) returned home from
     a week at the beach with her family. At this time, Tangy Harbaugh
     (now Tangy Johnson) was the [V]ictim’s best friend, and the first
     person she visited upon her return from the beach. During the
     visit, the [V]ictim borrowed clothes from Tangy – a green button[-
     ]up sweater vest and a pair of light[-]blue jeans shorts. A mutual
     friend, Marissa Toney, was also present for this visit.

     After visiting with Tangy, the [V]ictim was not seen by her family
     or friends for a significant period of time, which led to contact
     being made with the National Center for Missing and Exploited
     Children. The [V]ictim’s apparent disappearance also led Tangy
     to begin making contact with individuals to try and ascertain
     where the [V]ictim had gone. Tangy first made contact with
     Marissa Toney, which led her to the Webber residence, and
     eventually to a location on Wayne Avenue, where Tangy believed
     [Miles] lived at the time. [] Tangy knew who [Miles] was, as he
     was her nephew’s father.
J-S69030-18


     Ultimately, the police began an investigation. In August of 2002,
     Officer Mark King (at the time of trial[,] Chief King) was assigned
     to the case. Officer King conducted extensive interviews, and
     searches, but in April 2010[,] the [V]ictim had still not been
     located. As the case was still open after such an extended period
     of time, it was referred to the Pennsylvania State Police.

     On April 6, 2010, [Miles] was standing on an overpass overlooking
     Interstate 81, which was reported by motorists to police. [Miles]
     appeared distraught, repeatedly making comments about suicide.
     [Miles] also requested a notebook that he wanted the police to
     read.

     Trooper [Aaron] Martin (now Corporal Martin) was the lead
     investigator of the instant case. On the morning of April 6, 2010,
     Trooper Martin interviewed Sherry Walters, [Miles’] wife, who
     gave him consent to search her vehicle. In the process of
     searching the vehicle, Trooper Martin discovered a notebook that
     belonged to [Miles]. The notebook included the following writing:

        For those of you who think you know me, you don’t for I am
        a beast. That’s the name that is given to the soul. It is
        bestowed upon those who are chosen. Why we are chosen
        is unknown but we are many. We know who we are and
        you love us. But there are two sides to us, a living side and
        a dying side. We fight amongst ourselves to choose who
        shall live and who shall die. We do what we do and try to
        survive.

        We know there is a God of evil. And we serve him. But
        there is a God of good who serves us. We go to him for the
        person who is chosen for death is doomed. So now we start.
        It comes upon us. We try to fight.

        But we do what we do. We know everything there is to
        know. And still we do wrong for I am not running. This time
        is mine. And we do what needs to be done.

                                     ...

        There’s a part of me that wants to fight, and that is good.
        But here’s of the beast.

                                     ...

        Do not put in our path. But we put in yours to do you justice.
        And that is to die. For our destiny is death. 1995, we are

                                    -2-
J-S69030-18


           served[!] We want peace. Our peace is death. Within us
           we don’t know what makes up. Kill but now it is time for
           death. So for that’s what brings me here today, beast to
           beast.

                                           ...

           I’m at peace. Months ago I prayed to the God of good. And
           I am served. There are those who love the God in evil and
           that is why we survive. When I die is my destiny. Those
           who love the God in evil know no better. [It’s not your
           fault,] it’s who you are. There’s no peace when you fight
           against who you are.

        After discovering the notebook, Trooper Martin went to the
        overpass, and made contact with [Miles]. Trooper Martin informed
        [Miles] that he had obtained the notebook from [Miles’] wife. At
        this point, [Miles] came down off the overpass, was handcuffed,
        and searched. [Miles] was placed in the back of a patrol unit and
        read his Miranda[1] rights. [Miles] was then transported to
        Chambersburg Police Department.

        [Miles] was again read his Miranda rights, and then Trooper
        Martin and Trooper David Rush conducted the first recorded
        interview of [Miles]. In the video recording of the interview,
        [Miles] admitted to killing the [V]ictim with a [two] by [four].
        After admitting this, [Miles] offered to take the police to the
        location of the body. [Miles] led police to the place he left the
        [V]ictim’s body, which is an area called Waynecastle,
        Pennsylvania, located between Greencastle and Waynesboro.

        Trooper Martin then proceeded back to State Police barracks in
        Chambersburg with [Miles] to continue interviewing him. [Miles]
        was again read his Miranda rights, after which he consented
        again to the interview. [Miles] was interviewed three times
        between 3 p.m. and 8 p.m. During that time, [Miles’] Miranda
        warnings were refreshed, and he was provided with food, water,
        and bathroom breaks. During this time, [Miles] explained that he
        used a [two] by [four] to kill the [V]ictim because it was handy.
        [Miles] specified that he struck the [V]ictim twice with the [two]
        by [four], and then put her into the trunk of his car. [Miles] then
        drove to the location he ultimately left the [V]ictim, in
        Waynecastle, Pennsylvania. He explained that once he got there,
____________________________________________


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

                                           -3-
J-S69030-18


        he opened the trunk, and the [V]ictim popped up[,] saying “Please
        don’t kill me.” [Miles] stated that he then struck the [V]ictim a
        third time in the head, and then discarded the [V]ictim’s body at
        that location. [Miles] also indicated that he left the murder
        weapon . . . between shrubs and the garage of his residence, and
        Trooper Mike Dick was able to locate said [two] by [four] precisely
        where [Miles] indicated he had left it. During the interview,
        [Miles] stated that the [V]ictim had not deserved to be murdered.

Trial Court Opinion, 6/18/18/, at 6-10 (internal footnotes and citations to the

record omitted).

        On November 20, 2014, Miles was convicted by a jury of first-degree

murder and was immediately sentenced to life imprisonment without the

possibility of parole. Thereafter, while still represented by counsel, Miles filed

a pro se “Direct Appeal for Denial of Mistrial.”     As Miles’ filing constituted

hybrid representation, the trial court directed that no further action be taken

on the appeal. Rather, the court directed Miles to either file a request to waive

his right to counsel and proceed pro se or discuss the filing of an appeal with

his counsel. He did neither.

        On November 19, 2015, Miles filed a pro se petition under the Post

Conviction Relief Act (“PCRA”),2 seeking reinstatement of his direct appellate

rights.   Counsel was appointed and filed an amended petition.           After an

evidentiary hearing, the PCRA court denied relief.      Miles appealed and, on

November 14, 2017, this Court issued a memorandum order reversing the

PCRA court and remanding for the reinstatement of Miles’ direct appellate

rights. The PCRA court did so by order dated November 20, 2017. In that
____________________________________________


2   42 Pa.C.S.A. §§ 9541-9546.

                                           -4-
J-S69030-18



same order, the court appointed counsel to represent Miles in his appeal and

directed counsel to file a notice of appeal within 30 days.         However, on

December 5, 2017, counsel filed a motion to appoint alternate counsel due to

a conflict. By order dated December 11, 2017, the court granted the motion

and appointed current counsel, Michael Palermo, Esquire, to represent Miles.

      On January 24, 2018, Attorney Palermo filed a motion to file a notice of

appeal nunc pro tunc, as well as a notice of appeal. The trial court never acted

on the motion.    However, on January 25, 2018, the court issued an order

directing Miles to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). After receiving multiple extensions, counsel

finally filed a Rule 1925(b) statement on May 14, 2018. The trial court issued

its Rule 1925(a) opinion on June 18, 2018.

      On appeal, Miles raises the following claims on appeal:

      1. Did the [trial] court err in denying [Miles’] [m]otion in [l]imine,
      where the Commonwealth could not prove the corpus delicti due
      to decomposition, thus the prosecution should have been
      barred[?]

      2. Was the verdict of guilt as to [f]irst[-d]egree [m]urder[] based
      on insufficient evidence, where the Commonwealth could not
      provide the cause of death due to the only physical evidence being
      skeletal remains[?]

Brief of Appellant, at 6.

      Before addressing the merits of Miles’ claims, we must address the

timeliness of this appeal, as it implicates our jurisdiction. Commonwealth

v. Yarris, 731 A.2d 581, 587 (Pa. 1999) (appellate courts may consider issue

of jurisdiction sua sponte). “Jurisdiction is vested in the Superior Court upon

                                      -5-
J-S69030-18



the filing of a timely notice of appeal.” Commonwealth v. Nahavandian,

954 A.2d 625, 629 (Pa. Super. 2008), citing Commonwealth v. Miller, 715

A.2d 1203, 1205 (Pa. Super. 1998). “This Court does not have jurisdiction to

hear an untimely appeal.” Commonwealth v. Wrecks, 931 A.2d 717, 720

(Pa. Super. 2007), citing Commonwealth v. Green, 862 A.2d 613, 615 (Pa.

Super. 2004).

      Here, the trial court ordered court-appointed counsel to file a notice of

appeal within thirty days from November 20, 2017.        Thus, Miles had until

December 20, 2017 to file a timely appeal. When the court appointed new

counsel on December 11, 2017, it did not address the time within which

counsel was required to file a notice of appeal. Counsel finally filed a notice

of appeal on January 24, 2018, along with a motion to file an appeal nunc pro

tunc. As noted above, that motion was never expressly granted. Indeed, the

trial court never even acknowledged that the notice of appeal was untimely

filed. If a trial court does not expressly grant nunc pro tunc relief, the time

for filing an appeal is neither tolled nor extended. See Commonwealth v.

Dreves, 839 A.2d 1122, 1128–29 (Pa. Super. 2003).

      Miles’ notice of appeal was clearly untimely. Nevertheless, we decline

to quash his appeal.    In Commonwealth v. Wright, 846 A.2d 730 (Pa.

Super. 2004), we addressed a similar factual scenario in which the appellant’s

direct appeal rights were reinstated nunc pro tunc following PCRA proceedings.

However, counsel did not file a notice of appeal until nearly two months after

the order granting reinstatement of appellate rights.     Although this Court

                                     -6-
J-S69030-18



determined that the appeal was, in fact, untimely, it declined to quash. In

doing so, the Court noted that “the order restoring Appellant’s direct appeal

rights did not inform Appellant that he had 30 days to file the appeal.

Accordingly, we will not fault Appellant for failing to appeal within 30 days of

the restoration of his direct appeal rights.” Id. at 735.

      Here, by order dated November 20, 2017, the court reinstated Miles’

appellate rights, appointed counsel, and granted counsel 30 days to file a

notice of appeal. As Miles was represented by counsel, the court did not send

a copy of that order to him. When court-appointed counsel was compelled to

withdraw its representation, the order appointing new counsel did not specify

the time period in which new counsel was required to file a notice of appeal.

Miles was not sent a copy of that order. Thus, as in Wright, we decline to

punish Miles for the trial court’s failure to advise new counsel as to the appeal

deadline, or new counsel’s failure to apprise himself of the deadline upon his

appointment. See also Commonwealth v. Hurst, 532 A.2d 865 (Pa. Super.

1987) (trial court required to advise defendant of right to appeal and time

within which that right may be exercised; where court fails to so inform

defendant, otherwise untimely appeal will not be quashed). We now proceed

to address Miles’ appellate claims.

      Miles first alleges that the trial court erred in not granting his motion in

limine, in which he sought an order prohibiting the introduction at trial of any

of his inculpatory statements, as the Commonwealth was “unable to establish

by evidence independent of his statement that the death of [the Victim] is

                                      -7-
J-S69030-18



more consistent with being done by criminal means as opposed to accident or

suicide.”   Motion in Limine, 9/9/14, at [3].        Miles argues that, at the

preliminary hearing, the coroner, Jeff Conner, did not offer his own opinion,

but relied on the expert report of forensic anthropologist Dr. Dennis Dirkmaat.

Miles claims that, while the report identified skull fractures on the Victim, there

was no evidence – other than Miles’ statements to police – as to when or how

those fractures were made. Miles is entitled to no relief.

      It is well-settled that before the Commonwealth may introduce a

confession or admission made by an accused, it must first establish by

independent    evidence    that   a   crime   has   in   fact   been   committed.

Commonwealth v. Fried, 475 A.2d 773, 775 (Pa. Super. 1984) (citations

omitted). “This evidentiary requirement, known as the corpus delicti rule, is

rooted in a hesitancy to convict one of crime on the basis of his own

statements only.    The grounds on which the rule rests are the hasty and

unguarded character which is often attached to confessions and admissions

and the consequent danger of a conviction where no crime has in fact been

committed[.]” Id. (citations and internal quotation marks omitted).

      The threshold requirement that the corpus delicti of the crime be

established is not equivalent to the Commonwealth’s ultimate burden of proof

beyond a reasonable doubt.        Id.    Rather, the rule merely requires the

Commonwealth to preliminarily establish, to the satisfaction of the trial judge,

that the death occurred under circumstances which were more consistent with

criminality than with natural causes or accident.               Id.    “Once the

                                        -8-
J-S69030-18



Commonwealth has sustained this initial and preliminary burden of proof,

which is admittedly slight, the admissions of the accused become admissible.”

Id.

       Here, at the preliminary hearing, the Commonwealth presented,

through the testimony of Coroner Conner, the report of Dr. Dirkmaat, which

concluded that the Victim had suffered perimortem3 blunt force trauma to the

cranium, with a minimum of three impacts. Testimony also indicated that the

Victim was located in a remote area, suggesting an effort to conceal her

remains. The Commonwealth presented evidence linking Miles to the 1995

missing person report filed at the time of the Victim’s disappearance. This

evidence was sufficient to establish that the circumstances of the Victim’s

death were more consistent with criminality than with natural causes or

accident. See id. Accordingly, the trial court did not err in denying Miles’

motion in limine.

       Miles next asserts that the evidence adduced at trial was insufficient to

support a verdict of first-degree murder. Specifically, Miles claims that the

Commonwealth did not prove the cause of death, as the only physical evidence

consisted of skeletal remains. This claim is meritless.

       Our standard of review is well-settled:

       The standard we apply in reviewing the sufficiency of the evidence
       is whether[,] viewing all the evidence admitted at trial in the light
       most favorable to the verdict winner, there is sufficient evidence
____________________________________________


3 “Perimortem” means “taking place at or around the time of death.”
https://www.merriam-webster.com/medical/perimortem (visited 10/30/18).

                                           -9-
J-S69030-18


      to enable the fact-finder to find every element of the crime beyond
      a reasonable doubt. In applying the above test, we may not weigh
      the evidence and substitute our judgment for the fact-finder. In
      addition, we note that the facts and circumstances established by
      the Commonwealth need not preclude every possibility of
      innocence. Any doubts regarding a defendant’s guilt may be
      resolved by the fact-finder unless the evidence is so weak and
      inconclusive that as a matter of law no probability of fact may be
      drawn from the combined circumstances. The Commonwealth
      may sustain its burden of proving every element of the crime
      beyond a reasonable doubt by means of wholly circumstantial
      evidence. Moreover, in applying the above test, the entire record
      must be evaluated and all evidence actually received must be
      considered. Finally, the finder of fact while passing upon the
      credibility of witnesses and the weight of the evidence produced,
      is free to believe all, part or none of the evidence.

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014), quoting

Commonwealth v. Estepp, 17 A.3d 939, 943–44 (Pa. Super. 2011).

      A person is guilty of first-degree murder when the Commonwealth

proves that: (1) a human being was unlawfully killed; (2) the person accused

is responsible for the killing; and (3) the accused acted with specific intent to

kill. Commonwealth v. Baumhammers, 960 A.2d 59, 68 (Pa. 2008). The

Commonwealth may prove that a killing was intentional solely through

circumstantial evidence. Id. The finder of fact may infer that the defendant

had the specific intent to kill the victim based on the defendant’s use of a

deadly weapon upon a vital part of the victim's body. Id. The legislature has

defined a “deadly weapon” as:

      Any firearm, whether loaded or unloaded, or any device designed
      as a weapon and capable of producing death of serious bodily
      injury, or any other device or instrumentality which, in the manner
      in which it is used or intended to be used, is calculated or likely to
      produce death or serious bodily injury.


                                     - 10 -
J-S69030-18



18 Pa.C.S.A. § 2301.

        At trial, the Commonwealth presented Mile’s confession that he had “hit

[the Victim] upside the head with a [two-by-four].” N.T. Trial, 11/18/14, at

117. He stated that he hit her twice and then placed her in the trunk of his

car. Id. at 136. After driving to the wooded area where the Victim’s remains

were eventually recovered, he opened the trunk of the car and the Victim

“popped up” and said “Please don’t kill me.” Id. Miles then hit her a third time

with the two-by-four and discarded the body. Miles stated that he had struck

the Victim “in the head but more along the face area.” Id. at 137. He stated

that he disposed of the two-by-four between the garage and some shrubs at

his residence, where police subsequently recovered it “precisely where Mr.

Miles said he had thrown it.” Id. at 138.

        The Commonwealth also presented the testimony of Dr. Dirkmaat, the

forensic anthropologist, who testified to within a reasonable degree of medical

certainty that the remains to which Miles led police represented a white female

approximately 60 inches in height and about 15 to 20 years of age, which was

consistent with the biological profile of the Victim. See N.T. Trial, 11/19/14,

at 69-70.     He further testified that the Victim had suffered three separate

perimortem blunt-force trauma blows to the skull, injuries not inconsistent

with an attack using a two-by-four, and that death had occurred more than

five, and likely more than ten, years earlier.4 See id. at 70-71.
____________________________________________


4   The Victim disappeared in August 1995 and trial was held in November 2014.


                                          - 11 -
J-S69030-18



       Additionally,    Dr.   William    Black,    an   expert   in   dental   remains

identification, testified that he was called to assist the coroner’s office in

identifying the remains found on April 6, 2010. He did so by examining the

remains available and comparing them with dental records provided by the

Victim’s dentist. Doctor Black concluded that a filled tooth recovered at the

scene5 was consistent with the records provided. See id. at 34.

       In sum, the evidence adduced at trial, if believed by the finder of fact,

was sufficient to prove that Miles unlawfully and intentionally killed the Victim

by using a deadly weapon upon a vital part of the her body. Baumhammers,

supra. Miles confessed to the crime, and the details of that confession were

corroborated by the findings of Dr. Dirkmaat, and by the fact that the police

found both the Victim and the murder weapon exactly where Miles said they

were located. Accordingly, Miles is entitled to no relief.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/9/2018

____________________________________________


5Specifically, a maxillary right central incisor, identified by Dr. Black as “tooth
No. 8,” was recovered from the remains. This tooth had been filled with
composite white filling. Doctor Black examined the tooth and the Victim’s
dental record and concluded that there was “no inconsistency anywhere
between the remains and the dental record.” N.T. Trial, 11/19/14, at 34.

                                          - 12 -
