J-S25043-24
2024 PA Super 273
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEITH PHILLIPS :
:
Appellant : No. 2988 EDA 2023
Appeal from the Judgment of Sentence Entered May 12, 2023
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002513-2020
BEFORE: DUBOW, J., McLAUGHLIN, J., and BECK, J.
OPINION BY BECK, J.: FILED NOVEMBER 15, 2024
Keith Phillips (“Phillips”) appeals from the judgment of sentence entered
by the Philadelphia County Court of Common Pleas (“trial court”) after a jury
convicted him of first-degree murder, attempted murder, aggravated assault,
possessing an instrument of crime (“PIC”), carrying a firearm on public streets
in Philadelphia, and carrying a firearm without a license. 1 Phillips challenges
the trial court’s denial of his motion to suppress statements he made during
an interview with police on the basis that the interviewing detectives violated
the protections of Miranda v. Arizona, 384 U.S. 436 (1966), after he had
voluntarily waived those rights. Because we conclude that the detectives who
conducted the interrogation violated the protections of Miranda, invalidating
____________________________________________
1 18 Pa.C.S. §§ 2502(a), 901, 2702(a), 907(a), 6108, 6106(a)(1).
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his waiver of those rights, we vacate Phillips’ judgment of sentence and
remand the case to the trial court for a new trial.
We summarize the factual history of this case as follows. I-Dean Fulton
(“Fulton”) was the subject of an FBI investigation involving drug trafficking.
Fulton, suspecting that his cousin, Nasir Sadat (“Sadat”), was cooperating with
the investigation, ordered “a hit” on Sadat.
On July 5, 2019, Jewell Williams, Jr. (“Williams”) was driving around
North Philadelphia at around 4:00 p.m., waiting to go to a haircut
appointment. While passing the time, Williams saw his friend, Sadat, near the
intersection of 16th and Clearfield Streets; he parked his car to greet Sadat.
Sadat was in the process of rehabilitating a nearby property, and he asked
Williams to look at the progress of the project. After viewing the property,
Sadat and Williams walked across the street from the house to one of Sadat’s
work trucks where they conversed with each other and with a passerby. At
this time, surveillance footage showed several individuals on bicycles circling
the area. Shortly thereafter, one of the bicyclists, which surveillance footage
of the incident showed to be wearing a shirt with a distinctive floral pattern,
walked up to Sadat and Williams and opened fire. Sadat sustained gunshot
wounds to his head, neck, and arm; Williams sustained gunshot wounds to his
chest, buttocks, arm, leg, and back. The perpetrator immediately fled the
scene.
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Within one to two minutes, Philadelphia police officers arrived at the
scene and immediately transported both Sadat and Williams to Temple
University Hospital. Williams survived but had to undergo extensive surgery
and spent two weeks in the hospital and several weeks at a rehabilitation
facility. Sadat was pronounced dead at the hospital at 5:47 p.m. Philadelphia
Associate Medical Examiner Dr. Khalil Wardak determined that Sadat’s cause
of death was multiple gunshot wounds, and the manner of death was
homicide.
While investigating the shooting, Philadelphia Police Detective John
Verrecchio received an anonymous tip that the shooter in this case had an
Instagram account with the handle “@broad_day_kay.” When Detective
Verrecchio searched the handle on Instagram, it returned pictures of an
individual he believed to be Phillips wearing floral shirts similar to the shirt
worn by the assailant in the surveillance footage of the shooting. Roughly ten
minutes after the shooting, this Instagram account made posts indicating that
the owner of the account was just involved in a murder for hire.
On November 7, 2019, Detective Verrecchio and Detective Thomas Gaul
conducted an interview of Phillips—who, at that time, was incarcerated on
other charges—at the Philadelphia Police Department’s Homicide Unit. The
detectives sought to question Phillips concerning the shooting of Sadat and
Williams as well as what they believed to be a retaliatory shooting where
Phillips was the victim. After detectives read Phillips his Miranda rights and
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he waived his right to remain silent, Phillips made several incriminating
statements to the detectives, including admitting that he was the owner of the
“@broad_day_kay” Instagram account and that he was involved in the
shooting of Sadat and Williams.
Prior to trial, Phillips filed a motion to suppress his interview with
Detectives Verrecchio and Gaul. See Motion to Suppress Statement,
12/28/2021. Phillips averred that the Detective Gaul violated his Miranda
rights when, shortly after waiving his right to remain silent, he asked the
detectives: “You all going to use this in court on me?” and Detective Gaul
responded: “Nobody’s using anything in court.” Brief in Support of Motion to
Suppress Statement, 3/22/2022, at 1-13. Phillips averred that Detective
Gaul’s statement violated Miranda because the statement was factually
incorrect and directly contradicted Miranda because anything Phillips told
police could, in fact, be used against him in court. Id. On April 25, 2022, the
trial court held a hearing on the suppression motion, at the conclusion of which
the court denied this aspect of the motion.2
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2 We note that the trial court did suppress a portion of Phillips’ statement to
police. Later in the interrogation, Phillips eventually requested a lawyer. N.T.,
4/25/2022, Exhibit C-2 at 109. Although the detectives purported to stop
their interrogation, they engaged in what they referred to as a “recap” of the
interview with Phillips after he requested counsel. Id. The trial court
determined that the “recap” after Phillips requested an attorney violated
Miranda and must be suppressed. N.T., 4/25/2022, at 49-50.
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On May 12, 2023, following trial,3 a jury found Phillips guilty of the
aforementioned crimes. The same day, the trial court sentenced Phillips to
the mandatory term of life in prison without the possibility of parole on the
first-degree murder conviction, and consecutive sentences of ten to twenty
years in prison for attempted murder, two-and-a-half to five years each for
PIC and carrying a firearm on the public streets of Philadelphia, respectively,
and three-and-a-half to seven years for carrying a firearm without a license,
for an aggregate sentence of life plus eighteen-and-a-half to thirty-seven
years of incarceration. Additionally, the trial court found Phillips in contempt
of court twice during the sentencing hearing because of disrespectful
comments he made to the court and sentenced him to an additional three to
six months in prison on each contempt conviction, to run consecutively to each
other and to the other sentences. N.T., 5/12/2023, at 42-46. On May 19,
2023, Phillips filed a post-sentence motion, which the trial court denied on
August 17, 2023.
Phillips timely appealed to this Court. Both the trial court and Phillips
have complied with Pennsylvania Rule of Appellate Procedure 1925. Phillips
presents the following issues for review:
A. Whether the [trial court] erred as a matter of law and abused
[its] discretion in admitting as evidence the testimony of
interrogating officers and video of the interrogation where the
interrogating officers made a promise of confidentiality to the
____________________________________________
3 This was Phillips’ second trial. His first trial ended in a mistrial because of
an outbreak Covid-19 among the jurors. See N.T., 5/4/2022, at 4-8.
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[Phillips], violated the protections of Miranda v. Arizona, and
induced [Phillips] to make an involuntary statement when at
the 38:44 mark into the video interrogation [Phillips] asked the
officers “You all going to use this in court on me?” that was
answered by the officer “Nobody’s using anything in court[]”?
B. Whether after sentencing [Phillips] to a life sentence without
parole, the [trial court] erred in imposing a consecutive
sentence of [eighteen-and-a-half to thirty-seven] years by
declining a [presentence] investigation report requested by
[Phillips], resulting in a record without any background,
evidence of psychological impairments, history of trauma
and/or character of [Phillips]?
Phillips’ Brief at 12.
Phillips’ first issue challenges the trial court’s denial of his motion to
suppress the statements he made during his interview with Detectives
Verrecchio and Gaul. The standard of review for the denial of a suppression
motion is well settled:
Our standard of review in addressing a challenge to the
denial of a suppression motion is limited to determining whether
the suppression court’s factual findings are supported by the
record and whether the legal conclusions drawn from those facts
are correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. The
suppression court's legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the conclusions
of law of the courts below are subject to our plenary review.
Moreover, appellate courts are limited to reviewing only the
evidence presented at the suppression hearing when examining a
ruling on a [pretrial] motion to suppress.
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Commonwealth v. Carey, 249 A.3d 1217, 1223 (Pa. Super. 2021).
Phillips argues that the trial court erred in denying his suppression
motion because Detective Gaul made statements to him that directly
contradicted the Miranda warnings. See Phillips’ Brief at 31-62. Specifically,
Phillips takes issue with the following portion of his interrogation, which
occurred after the detectives had informed him of his rights pursuant to
Miranda and Phillips had signed a card waiving those rights:
[Detective Gaul]: … Now, do you remember the day that you were
shot? As far as [the] date?
[Phillips]: Yeah, um. It was um, I went to Dorney Park that day,
it was July, July 15th.
[Detective Gaul]: [O]kay. And, like I said we’re not asking you to
sign a photograph or circle somebody’s photograph or sign a
statement, but who shot you?
[Phillips]: (points to the camera). You all gonna use this in court
on me?
[Detective Gaul]: Nobody’s using anything in court. Like I said,
we’re not here to try to railroad you or anything like that. What
we’re trying to do is like we talked about in the beginning. And
even though it’s kinda like an age old saying, as you go through
life you can keep on making the same decisions and the same
thing’s going to keep on happening. All right. So at some point,
at different times, you gotta be old enough to realize that you
know what, maybe the same mistakes I’m making are the reason
why I’m in the situation that I’m in ….
[Phillips]: Yeah.
N.T., 4/25/2022, Exhibit C-2 (hereinafter “Interrogation Transcript”) at 14-
15.
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Phillips argues that Detective Gaul’s statement “Nobody’s using
anything in court” was in direct contravention to the Miranda warning that
“anything you say can and will be used against you in a court of law.” Phillips’
Brief at 31. Phillips further asserts that this statement undermined his
voluntary waiver of his Miranda rights, as it was an improper promise of
confidentiality and that consequently, his statements, including his admission
to participating in the shooting of Sadat and Williams, was inadmissible and
subject to suppression. Id.
The law is clear that when an individual is in custody and subject to
interrogation, that individual is entitled to Miranda warnings.
Commonwealth v. Yandamuri, 159 A.3d 503, 520 (Pa. 2017) (citing
Miranda,
384 U.S. at 478-79). Our Supreme Court has explained that under
such circumstances, “before law enforcement officers question an individual”
the officers “must first warn the individual that he has the right to remain
silent, that anything he says can be used against him in a court of law, that
he has the right to the presence of an attorney, and that if he cannot afford
an attorney one will be appointed.”
Id. at 520-21 (citing Miranda,
384 U.S.
at 478-79). The Miranda rights are rooted in the portion of the Fifth
Amendment to the United States Constitution that protects individuals from
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self-incrimination.4 See Miranda, 384 U.S. at 469. Importantly, the rights
set forth in the Miranda warnings persist throughout the entirety of an
interrogation.
Id. at 473-74 (“If the individual indicates in any manner, at
any time prior to or during questioning, that he wishes to remain silent, the
interrogation must cease.”).
With respect to the warning regarding the use of an individual’s
statements in court, the Miranda Court explained that the warning is
necessary to explicitly inform the individual “not only of the privilege [against
compelled self-incrimination], but also of the consequences of foregoing it.”
Miranda, 384 U.S. at 469. The Court reasoned that “[i]t is only through an
awareness of these consequences that there can be any assurance of real
understanding and intelligent exercise of the privilege” and that “this warning
may serve to make the individual more acutely aware that he is faced with a
phase of the adversary system—that is he is not in the presence of persons
acting solely in his interest.”
Id.
Additionally, the United States Supreme Court has stated that review
into the adequacy of the waiver of Miranda rights is a two-part inquiry:
First, the relinquishment of the right must have been voluntary in
the sense that it was the product of a free and deliberate choice
rather than intimidation, coercion, or deception. Second, the
waiver must have been made with a full awareness of both the
nature of the right being abandoned and the consequences of the
____________________________________________
4 We note that Phillps does not raise a separate claim under Article I, § 9 of
the Pennsylvania Constitution, and we therefore limit our discussion to the
suppression decision under the Fifth Amendment.
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decision to abandon it. Only if the totality of the circumstances
surrounding the interrogation reveals both an uncoerced choice
and the requisite level of comprehension may a court properly
conclude that the Miranda rights have been waived.
Moran v. Burbine, 475 U.S. 412, 421 (1986) (citation omitted); see also
Commonwealth v. Smith,
210 A.3d 1050, 1058 (Pa. Super. 2019) (same).
Critically, the United States Supreme Court has recognized that
statements or actions by police officers can undermine protections afforded
by the Miranda warnings. Miranda, 384 U.S. at 476. Where there is
evidence that demonstrates “that the accused was threatened, tricked, or
cajoled into a waiver,” then that “will, of course, show that the defendant did
not voluntarily waive his privilege.” Id.; see also Colorado v. Spring,
479
U.S. 564, 576 n.8 (1987) (observing that the Court had previously “found
affirmative misrepresentations by the police sufficient to invalidate a suspect’s
waiver of the Fifth Amendment privilege”) (citing Lynumn v. Illinois,
372
U.S. 528 (1963); Spano v. New York,
360 U.S. 315 (1959)). As stated by
our Supreme Court:
Promises of benefits or special considerations, however benign in
intent, comprise the sort of persuasion and trickery which easily
can mislead suspects into giving confessions. The process of
rendering Miranda warnings should proceed freely without any
intruding frustration by the police. Only in that fashion can we
trust the validity of subsequent admissions, for if the initial
employment of Miranda is exploited illegally, succeeding
inculpatory declarations are compromised. Misleading statements
and promises by the police choke off the legal process at the very
moment which Miranda was designed to protect.
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Commonwealth v. Gibbs, 553 A.2d 409, 411 (Pa. 1989).5
Additionally, when evaluating “the comprehensibility and efficacy of the
Miranda warnings” we must do from the perspective of “a reasonable person
in the suspect’s shoes.” Commonwealth v. Charleston, 16 A.3d 505, 523
(Pa. Super. 2011) (quoting Missouri v. Seibert,
542 U.S. 600, 602 (2004)
(Souter, J., Opinion Announcing the Judgment of the Court)), abrogated on
other grounds by In re L.J.,
79 A.3d 1073 (Pa. 2013). Regardless of
whether the police officer’s conduct was intentional or inadvertent, the motive
underlying the officer’s conduct “is irrelevant to the question of the intelligence
and voluntariness of [the accused]’s election to abandon his rights.” Burbine,
475 U.S. at 423. “Such conduct” by the interrogating officer “is only relevant
to the constitutional validity of a waiver if it deprives a defendant of knowledge
essential to his ability to understand the nature of his rights and the
consequences of abandoning them.”
Id. at 424.
Moreover, courts “will not pause to inquire in individual cases whether
the defendant was aware of his rights” despite noncompliance with Miranda
because “[a]ssessments of the knowledge the defendant possessed, based on
information as to his age, education, intelligence, or prior contact with
____________________________________________
5 “This pronouncement, applied in Gibbs to the right to counsel, was also
intended by the Gibbs Court to extend to all of the rights elucidated in
Miranda and subsequent derivative case law, including the right to remain
silent.” Commonwealth v. Morgan, 606 A.2d 467, 469 (Pa. Super. 1992),
aff’d,
652 A.2d 295 (Pa. 1994) (per curiam).
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authorities, can never be more than speculation; a warning is a clearcut fact.”
Miranda, 384 U.S. at 468-69 (footnote omitted). Thus, when analyzing the
voluntariness of the waiver of Miranda rights or a confession, we must look
only to the actual words of the interrogating officer and the understanding of
a reasonable person standing in the accused’s shoes, not to the motives or
beliefs underlying the officer’s conduct, nor can we speculate regarding the
knowledge a suspect possessed about their rights. See id.; see also
Burbine,
475 U.S. at 423.
The record in this case reflects that during their interrogation of Phillips,
Detectives Verrecchio and Gaul initially discussed biographical information
with him, asked him questions about his family, and then posed a few
questions about the injuries Phillips sustained during the recent shooting. See
Interrogation Transcript at 1-9. Detective Gaul then informed Phillips that
they were going to be questioning him about the “various shootings that have
been taking place all throughout the area where you were shot and we’re not
sure why you were shot as far as motive, you might have done something,
you might not have done something,” thus making Phillips aware they would
be discussing more than just the incident during which he was shot and that
the detectives believed he may have played a role in one or more of the other
shootings. Id. at 10.
Immediately thereafter, Detective Gaul read Phillips his Miranda rights
and Phillips signed a form waiving those rights. Id. After the detectives asked
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Phillips more questions about his family, Detective Gaul asked Phillips who
shot him. Id. at 10-14. It was at this point that Phillips pointed to the camera
in the room and asked, “You all gonna use this in court on me?” to which
Detective Gaul responded, “Nobody’s using anything in court.” Id. and 14.
With that assurance, Phillips continued to speak with the detectives, and
during the conversation that followed, he expressed his fear of retribution if
he told the detectives who had shot him and ultimately provided critical
information related to his involvement in the shooting of Sadat and Williams.
Id. at 14-16, 92-100.
At the hearing on Phillips’ suppression motion, Detective Gaul testified
regarding Phillips’ response to the question of who shot him:
Q. [Phillips] pointed to the camera and said: “You all gonna use
this in court on me?” When he said “this,” what did you take him
to mean? What did you take that question to mean when he was
asking that?
…
A. Based on my experience with shootings, you know, both
nonfatal and fatal shootings and dealing with witnesses, my
understanding from [Phillips’] response was the way he pointed to
the camera and said “you all gonna use this in court,” was that he
was afraid that it would be -- this video would be getting out if he
did identify who shot him. You know, that was how I took that,
that he was concerned about his information getting out in court,
that we -- everybody in this room, you know, I’m sure has seen
that one of the biggest hurdles to get over is witness -- or actually
victim intimidation. So that’s what I took that as.
Q. And when you said, “Nobody’s using anything in court, bud,
like I said, we’re not here to try to railroad you or anything like
that,” what were you telling [Phillips] was not going to be used in
court at that specific moment?
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A. His identification. Like if he did come out and then say, you
know, look, it was Kevin or whoever that shot him, you know what
I mean, we weren’t going to -- you know, at this point in the
investigation, there was going to be other means that we could
use to further the investigation, either through grand jury,
indicting grand jury. We were trying to -- I was trying to actually
put him at ease so he would keep talking at this point and tell us
who shot him.
N.T., 4/25/2022, at 29-31.
In denying Phillips’ motion to suppress the statements he made during
his interrogation after Detective Gaul assured him his statement would not be
used in court, the trial court explained:
The [c]ourt found the testimony of Detective Gaul to be credible.
[N.T., 4/25/2022,] at 48. The [c]ourt found that [Phillips] was
given Miranda warnings, which he unequivocally waived. Id.
The [c]ourt found that [Phillips] was treated well throughout the
interview, and that no coercion took place. Id. With respect to
Detective Gaul’s statement that “[n]obody’s using anything in
court,” the [c]ourt stated as follows:
I think it’s very clear from the video that when
Detective Gaul said nobody is using anything in court,
he was clearly, unquestionably referring to [Phillips’]
understandable concern about identifying somebody
who shot him in the environment here in Philadelphia,
where, as he eloquently described during the
statement, often involves, including many people he
personally knew, getting shot and killed. And that to
me would not in any way violate the principles of
Miranda. It did not imply that the statement would
not be used against him. It implied that the statement
would not be used against ... whomever it was who
shot him. And that’s an altogether different matter.
Id. at 47. The [c]ourt found that no violation of Miranda occurred
prior to [Phillips’] request for an attorney, and that [Phillips’]
statement was voluntary. Id.
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Trial Court Opinion, 12/12/2023, at 9.
We conclude that the trial court’s decision is not supported by the record
or the relevant law. The trial court’s reasoning overlooks a significant aspect
of Detective Gaul’s answer to Phillips’ direct question “You all going to use this
in court on me?” See Interrogation Transcript at 14 (emphasis added).
Phillips did not ask if the detectives were going to use any portion of his
statement in court in general, he asked if they were going to use his
statements in court against him. See id. Detective Gaul made no attempt
to clarify the question, and instead he explicitly told Phillips that “Nobody’s
using anything in court” without any equivocation or qualification. Id.
(emphasis added). To the contrary, Detective Gaul explained this assurance
by telling Phillips that police were not there “to railroad” him but were
exploring Phillips’ actions that may have led to his own shooting. Id. In other
words, the detectives were not out to get Phillips, they just wanted to know
who shot him and what he did to cause someone to shoot him.
The plain meaning of Detective Gaul’s actual words was that the
detectives would not use anything that Phillips said in court against him. See
id. This was a false, misleading, and empty promise of confidentiality. See
Gibbs, 553 A.2d at 411. This is particularly true considering the detectives’
frequent attempts to convince Phillips that they had his best interests in mind,
referring to him as “bud” throughout the interview, telling him that they were
trying to help him, and repeatedly telling him that they were not trying to
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“railroad” him, including in the context of Detective Gaul’s promise that
nothing Phillips said was going to be used against him in court. See, e.g.,
Interrogation Transcript at 10, 14, 16, 34, 79, 82, 84.
Phillips also did not express any concern about retribution prior to
Detective Gaul assuring him “Nobody’s using anything in court.” See
Interrogation Transcript at 14. Until that point, Phillips had only provided the
detectives with biographical information and details about the injuries he had
sustained when he was shot. See id. at 1-14. Phillips only expressed a fear
of retribution and talked about people he knew getting shot in retaliation for
talking to police after Detective Gaul stated, “Nobody’s using anything in
court.” See id. at 14-16. Although Detective Gaul may have subjectively
believed, based on his training and experience, that Phillips asked the question
based upon his concern about retaliation for telling police who shot him, there
is no support in the record for a finding that Phillips understood the assurance
that nothing would be used against him in court to be limited to his
identification of his assailant, especially in light of the clear and unambiguous
language of both Phillips’ question and Detective Gaul’s response.
As the authority set forth above makes clear, the motives and beliefs
underlying Detective Gaul’s conduct is irrelevant when determining whether
Phillips had voluntarily waived his rights pursuant to Miranda. See Miranda,
384 U.S. at 469-70; Burbine,
475 U.S. at 423. Rather, the relevant
considerations are the actual words that Detective Gaul uttered and what a
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reasonable person in Phillips’ position would have understood regarding his
rights under the totality of the circumstances. See id. In this case, the record
reflects that almost immediately after the detectives read Phillips the Miranda
warnings, including the warning that anything he said could be used against
him in a court of law, Detective Gaul told Phillips, without qualification and in
direct contravention to Miranda, “Nobody’s using anything in court,”
detectives were not going to “railroad” him, and that they wanted to know
about Phillips’ actions that may have led to his own shooting. See
Interrogation Transcript at 14. Indeed, it was not until after this assurance
was made that Phillips made any inculpatory statements.
Based on the foregoing, we conclude that when Detective Gaul told
Phillips “Nobody’s using anything in court,” he violated Phillips’ rights under
Miranda, invalidating his voluntary waiver of those rights, and that such
violation required suppression of any statements Phillips made during the
remainder of his interrogation. See Spring, 479 U.S. at 576 n.8 (recognizing
that cases exist wherein the Court has found, even after proper Miranda
warnings and a knowing, intelligent, and voluntary waiver, an interrogator
may, through subsequent statements during the ensuing interrogation,
subvert those warnings and thus invalidate the suspect’s earlier waiver,
requiring suppression of statements the suspect made thereafter during the
interrogation); Moran,
475 U.S. at 426 (observing “the interrogation process
is ‘inherently coercive’ and that, as a consequence, there exists a substantial
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risk that the police will inadvertently traverse the fine line between legitimate
efforts to elicit admissions and constitutionally impermissible compulsion”)
(citation omitted); see also Hopkins v. Cockrell, 325 F.3d 579, 585 (5th
Cir. 2003) (“An officer cannot read the defendant his Miranda warnings and
then turn around and tell him that despite those warnings, what the defendant
tells the officer will be confidential and still use the resultant confession against
the defendant.”). The trial court therefore erred in denying Phillips’ motion to
suppress those statements.
We further conclude that such error was not harmless. “An error is
harmless if it could not have contributed to the verdict, or stated conversely,
an error cannot be harmless if there is a reasonable possibility the error might
have contributed to the conviction.” Commonwealth v. Poplawski, 130
A.3d 697, 716 (Pa. 2015). Harmless error occurs where:
(1) the error did not prejudice the defendant or the prejudice was
de minimis;
(2) the erroneously admitted evidence was merely cumulative of
other untainted evidence which was substantially similar to the
erroneously admitted evidence; or
(3) the properly admitted and uncontradicted evidence of guilt
was so overwhelming and the prejudicial effect of the error was
so insignificant by comparison that the error could not have
contributed to the verdict.
Id. (citation omitted). “The Commonwealth has the burden of proving
harmless error beyond a reasonable doubt.”
Id.
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At the outset, we note that the Commonwealth did not argue harmless
error in its brief before this Court. See Commonwealth’s Brief at 9-18.
Although we may raise the question of harmlessness sua sponte, see
Commonwealth v. Hamlett, 234 A.3d 486, 492 (Pa. 2020), we cannot
conclude that Phillips’ confession could not have contributed to the verdict.
During the interrogation, Phillips made numerous incriminating statements.
Phillips told the detectives that he owned the Instagram account
“@broad_day_kay,” that he was at the scene at the time Sadat and Williams
were shot, that he was paid $4,500 to serve as a lookout for his co-
conspirators who he thought were going to commit a robbery during a drug
transaction, and that his co-conspirators were getting paid $50,000.
Interrogation Transcript at 92-100. Phillips’ confession during the
interrogation to playing an integral role in the criminal activity that resulted in
Sadat’s death resulted in his admission to the detectives that he participated
in a conspiracy to commit murder. See
id. As the United States Supreme
Court has recognized:
A confession is like no other evidence. Indeed, the defendant’s
own confession is probably the most probative and damaging
evidence that can be admitted against him …. The admissions of
a defendant come from the actor himself, the most knowledgeable
and unimpeachable source of information about his past conduct.
Certainly, confessions have profound impact on the jury, so much
so that we may justifiably doubt its ability to put them out of mind
even if told to do so.
Arizona v. Fulminante, 499 U.S. 279, 296 (1991); see also
Commonwealth v. Ardestani,
736 A.2d 552, 557 (Pa. 1999) (Zappala, J.,
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Opinion Announcing the Judgment of the Court) (same). The evidence the
Commonwealth submitted to the jury of Phillips’ interrogation was, standing
alone, sufficient to elicit a conviction of first-degree murder from the jury.
Prior to speaking with Phillips, the detectives believed Phillips was the
owner of the “@broad_day_kay” Instagram handle, see N.T., 5/10/2023, at
103-04, but had no affirmative evidence that the account was his until he
confirmed ownership during the interrogation. Additionally, there was no
eyewitness testimony at trial identifying Phillips as the shooter and the
surveillance footage of the shooting was not of high enough quality for police
to utilize facial recognition software to identify the shooter. Id. at 102-03.
Without the evidence the detectives obtained from the interrogation, the most
incriminating evidence the Commonwealth had against Phillips was that he
conducted internet searches on the day of the shooting for extended clips for
9mm handguns, and police recovered 9mm shell casings from the crime
scene, N.T, 5/10/2023, at 164-66, and his cell phone pinged the cell tower in
the vicinity of the crime scene around the time of the shooting. N.T.,
5/11/2023, at 40.
While this circumstantial evidence could support a finding of Phillips’
guilt, it pales in comparison to the unequivocal evidence the detectives
obtained during the interrogation. Thus, we cannot say the erroneously
admitted evidence was merely cumulative of other untainted evidence, nor
can we say that the properly admitted evidence of guilt was so overwhelming
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J-S25043-24
that the prejudicial effect of the error was so insignificant by comparison that
the error could not have contributed to the verdict. See Poplawski, 130 A.3d
at 716. Rather, the record reflects that there was, at the very least, a
reasonable probability that the erroneously admitted evidence contributed to
the verdict and Phillips was prejudiced by its admission. See
id. We therefore
cannot find that the admission of Phillips’ confession was harmless error.
Accordingly, we must vacate Phillips’ judgment of sentence and remand
this matter to the trial court for a new trial. 6
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Date: 11/15/2024
____________________________________________
6 Based on our disposition of Phillips’ first issue, we need not address his
remaining issue challenging the discretionary aspects of his sentence.
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