J-S33044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JASON ERIC KUHNS
Appellant No. 1909 WDA 2015
Appeal from the PCRA Order December 1, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0005268-2011
BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD, J.*
DISSENTING STATEMENT BY FITZGERALD, J.: FILED JULY 29, 2016
I believe that an evidentiary hearing was necessary to consider
Appellant’s Post Conviction Relief Act1 (“PCRA”) petition. Appellant claimed
trial counsel’s ineffectiveness for failing to seek suppression of his
statements and asserted that he (1) did not receive Miranda2 warnings, (2)
signed a Miranda waiver form without being apprised of his rights, and (3)
requested trial counsel to seek suppression on this basis, but counsel
refused. He noted he did not initial the Miranda waiver form beside each
warning, which was inconsistent with the interrogating detective’s trial
testimony about her general practices. The PCRA court ultimately dismissed
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
J-S33044-16
Appellant’s petition without a hearing. The court noted the detective
testified at trial that she apprised Appellant of his Miranda rights. The court
found Appellant’s assertion that he did not receive Miranda warnings was
not credible and self-serving when contrasted with the detective’s trial
testimony.
A review of the record confirms that the interrogating detective
testified that she read Appellant his Miranda rights and transcribed his
answers on the form. Trial counsel, through cross-examination of the
detective, contested the voluntariness of Appellant’s inculpatory statements.
However, counsel’s cross-examination focused on the detective’s training in
interrogation techniques, the length of the interrogation, and Appellant’s
substance abuse history.3 Counsel did not contest the threshold issue of
Appellant’s waiver of his Miranda rights. Moreover, Appellant elected not to
testify at trial.
In my view, Appellant’s petition raised genuine issues of fact that
required credibility determinations from the PCRA court. I further believe
that the court’s attempt at credibility determinations were premature
because the issue of whether Appellant was apprised of and waived his
Miranda rights was not developed at trial. Therefore, I would remand for
an evidentiary hearing. See Pa.R.Crim.P. 907(1).
3
The trial court also issued an instruction to the jury to determine the
voluntariness of Appellant’s inculpatory statement.
-2-
J-S33044-16
Thus, I respectfully dissent.
-3-