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.*
CONCURRING/DISSENTING OPINION BY McLAUGHLIN, J.:
FILED MARCH 30, 2020
I agree with the learned Majority, that counsel was ineffective for failing
to file a motion to suppress Dawian Harper’s statements. However, I
respectfully disagree with the Majority’s conclusion that counsel was
ineffective for failing to raise a corpus delicti objection and for failing to object
to the testimony of Officer Patrick Moffatt that Harper’s gunshot wound was
self-inflicted.
Harper first contends counsel was ineffective for failing to file a motion
to suppress. I agree with the Majority that such a motion would have had
arguable merit. Although the questioning of an individual who is in the hospital
does not necessarily equate with custodial interrogation, here, under the
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S03020-20
totality of the circumstances, I believe that the interaction between the police
officers and Harper rose to the level of a custodial interrogation.
Custodial interrogation is “questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of
[his or her] freedom of action in any significant way.” Commonwealth v.
Williams, 941 A.2d 14, 30 (Pa.Super. 2008) (en banc) (quoting Miranda v.
Arizona,
384 U.S. 436, 444 (1966)). “Whether a person is in custody for
Miranda purposes depends on whether the person is physically denied of [his]
freedom of action in any significant way or is placed in a situation in which
[he] reasonably believes that [his] freedom of action or movement is
restricted by the interrogation.”
Id. at 30-31 (quoting Commonwealth v.
Clayton Williams,
650 A.2d 420, 427 (Pa. 1994)). To determine whether a
person is in custody, or the functional equivalent thereto, courts apply a
totality of the circumstances analysis:
Under the totality of the circumstances approach, the
following factors are relevant to whether a detention has
become so coercive as to constitute the functional
equivalent of a formal arrest: “the basis for the detention;
its length; its location; whether the suspect was transported
against his or her will, how far, and why; whether restraints
were used; whether the law enforcement officer showed,
threatened or used force; and the investigative methods
employed to confirm or dispel suspicions.”
Id. at 31 (quoting Commonwealth v. Levanduski,
907 A.2d 3, 24
(Pa.Super.2006) (en banc)). Further, interrogation occurs where “the police
should know that their words or actions are reasonably likely to elicit an
-2-
J-S03020-20
incriminating response from the suspect.” Id. at 30 (Commonwealth v.
Ingram,
814 A.2d 264, 271 (Pa.Super. 2002)).
Here, Officer Moffatt testified that “[u]pon my arrival . . . I went in, and
I told Mr. Harper that I was going to be performing a gunshot test on his hands
to see if he had recently fired a gun.” N.T., 2/8/17, at 14. After Harper initially
stated he shot a gun two days prior, and after Officer Moffatt had performed
the “test” on Harper’s hands, Officer Moffatt “told [Harper] that [he] was going
to examine his clothing to see the angle of the imperfection in the clothing,
and if there was any residual gunshot residue on there – I told him if the story
was correct from the fact he may have gunshot residue on his hand from two
days prior it would not be consistent with also finding gunshot residue on his
pants.” Id. at 17.
That two uniformed officers questioned Harper while Harper was in the
hospital does not, alone, constitute custodial interrogation. See, e.g.,
Commonwealth v. Fento, 526 A.2d 784, 789 (Pa.Super. 1987) (finding no
custodial interrogation where police officers questioned defendant in hospital
emergency room following accident). However, here, considering the totality
of the circumstances I agree that a reasonable person in Harper’s position
would not have felt free to leave.
Officer Moffatt’s questioning was not routine investigation. He testified
that he began his questioning by informing Harper that he would perform a
test, and he did in fact perform a fake test, without asking for consent. When
Harper still claimed he did not shoot a gun that day, Officer Moffatt told Harper
-3-
J-S03020-20
he would perform a second fake test, again without asking for consent. Such
actions negate the Commonwealth’s argument that a reasonable person would
have felt free to leave. Therefore, I agree that Harper was in custody at the
time of the questioning. Compare Commonwealth v. Whitehead, 629 A.2d
142, 145 (Pa.Super. 1993) (affirming trial court’s conclusion that a reasonable
individual would think an interrogation was custodial where officer gathered
information incriminating defendant at the scene, questioned defendant at
hospital where defendant was fearful of not cooperating, and although the
initial questions were general, the statements were made “after prompting
and followed questions designed to obtain incriminating statements”), with
Fento,
526 A.2d at 789 (no custodial interrogation where defendant was
interviewed in hospital after an accident where the interrogation lasted
approximately five minutes, was in the presence of hospital personnel, related
to the investigation of the accident, and there was no apparent police trickery
or deception).
I further would conclude that counsel also should have filed a motion to
suppress inculpatory statements Harper made subsequent to receiving his
Miranda rights. After Harper’s initial inculpatory statements, Sergeant Brian
Schmitt read Harper his Miranda rights, and Harper again made inculpatory
statements. However, according to the testimony available, this occurred
immediately after the initial statements, with no intervening circumstances or
events. I would conclude that these statements were tainted by the
unconstitionally-obtained statements. See Commonwealth v. Burno, 154
-4-
J-S03020-20
A.3d 764, 789 (Pa. 2017) (providing that factors courts should consider “when
determining whether an original taint has been sufficiently purged, including:
‘(1) whether Miranda warnings were given; (2) the ‘temporal proximity’ of
the illegal police conduct to the confession; (3) the presence of intervening
circumstances or events; (4) the ‘purpose and flagrancy of the official
misconduct.’” (quoting Commonwealth v. Green,
581 A.2d 544, 550-51 (Pa.
1990)).
Therefore, I concur with the Majority that a motion to suppress the
statements Harper made to the police would have had arguable merit. I
further agree that counsel did not have a reasonable basis for not filing such
a motion and that Harper suffered prejudice due to the lack of a motion.
Harper also contends that counsel was ineffective for failing to raise a
corpus delicti objection. Because I do not believe such an argument would
have had arguable merit, I respectfully disagree with the Majority’s conclusion
that counsel was ineffective for failing to raise a corpus delicti argument.
“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.” Commonwealth v.
Rivera, 828 A.2d 1094, 1103 (Pa.Super. 2003) (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.”
Commonwealth v. Taylor,
831 A.2d 587, 590 (Pa. 2003) (citing
Commonwealth v. May,
301 A.2d 368, 369 (Pa. 1973)). Only after this two-
-5-
J-S03020-20
prong test is met “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.” Id. (quoting May,
301 A.2d at 369).
The burden placed on the Commonwealth to establish a loss was the
result of a criminal agency is a preponderance of the evidence.
Commonwealth v. Ahlborn, 657 A.2d 518, 521 (Pa.Super. 1995). “[T]he
evidence must be more consistent with a crime than with an accident.”
Commonwealth v. McMullen,
681 A.2d 717, 722 (Pa. 1996). The criminal
responsibility of the accused in particular is not a component of the rule.
Id.
(citing Commonwealth v. Ahlborn,
657 A.2d 518, 521 (Pa.Super. 1995)).
Unlike the Majority, I do not believe that the Commonwealth had to
establish Harper’s possession of the firearm absent his confession. Rather, to
admit the statement regarding possession of a firearm, where no firearm was
recovered, I believe the Commonwealth merely had to establish, at a
preponderance level, that an incident involving a firearm resulted in a loss and
that the loss was more likely the result of criminality than an accident.
Here, as the PCRA court noted, there was evidence of a loss, in that two
people arrived at the hospital with gunshot wounds. Further, there was
evidence that the loss was the result of criminality, as, among other evidence,
a call reported shots fired, the police officers recovered ballistic evidence –
including 12 shell casings – from the scene, and two people were admitted to
the hospital for gunshot wounds. I believe that this evidence proves that a
loss involving a firearm occurred and that the loss was more likely to be the
-6-
J-S03020-20
result of criminality than from an accident. I therefore would conclude that
any objection based on corpus delicti would have lacked merit.
Harper also contends counsel was ineffective for failing to object to
testimony from Officer Moffatt that “[i]t appeared to me through my
experience to be a self-inflicted gunshot wound.” N.T., 2/8/17, at 15. Officer
Moffatt stated the “angle and location” made him think the wound was self-
inflicted. Id. I disagree with the Majority’s conclusion that counsel was
ineffective for failing to object to this testimony.
Pennsylvania Rule of Evidence 701 governs lay opinion testimony and
provides:
Rule 701. Opinion Testimony by Lay Witnesses
If a witness is not testifying as an expert, 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
or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
Pa.R.Evid. 701. “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. 2019).
In Commonwealth v. Kennedy, 151 A.3d 1117, 1122 (Pa.Super.
2016), we determined that lay opinion testimony regarding the trajectory of
a bullet, which was determined by use of metal rods through bullet holes, was
-7-
J-S03020-20
rationally based on the witness’s perception and permissible lay opinion
testimony. Kennedy, 151 A.3d at 1124 . Similarly, in Berry, we concluded
that an officer’s lay opinion testimony that droplets at the crime scene
appeared to be blood. Berry,
172 A.3d at 4.
Here, Detective Moffatt testified that, based on his experience and the
placement of the entrance and exit wounds, he believed the wound was self-
inflicted. As in Kennedy and Berry, this opinion testimony was admissible
under Rule 701, as it was rationally based on his perception, helpful to
understanding the testimony, and not based on scientific, technical, or other
specialized knowledge. See Pa.R.Evid. 701. I would find the testimony was
permissible lay opinion testimony. I would therefore conclude that any
objection to the testimony would have lacked merit and counsel was not
ineffective for failing to object to the testimony.
Accordingly, I concur with the Majority’s conclusion that counsel was
ineffective for failing to file a motion to suppress Harper’s statements.
However, I dissent from the Majority’s conclusions that counsel also was
ineffective for failing to raise a corpus delicti objection and failing to object to
Officer Moffatt’s lay opinion testimony that the gunshot was self-inflicted.
-8-
