J-A22029-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRANDON JUNE WILSON
Appellant No. 3217 EDA 2016
Appeal from the Judgment of Sentence September 6, 2016
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000597-2014
BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 19, 2018
Brandon June Wilson appeals from his judgment of sentence, entered
in the Court of Common Pleas of Monroe County, following his conviction for
third-degree murder (F-1),1 conspiracy (F-1)2 and three counts of recklessly
endangering another person (REAP) (M-2).3 After careful review, we reverse
and remand for a new trial.
The trial court summarized the facts underlying this appeal as follows:
On January 13, 2014, Kaylynn Bunnell and her boyfriend, Matt
Flores, sought to buy drugs from Brandon Kravchenko. A deal
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 2502(c).
2
18 Pa.C.S. § 903.
3
18 Pa.C.S. § 2705.
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was set up and Kravchenko put Flores in contact with a man
named “Jordan” in the parking lot of the Big Star to buy Percocet
30s. During this deal, “Jordan” took Flores and Bunnell's money
and gave them fake drugs in return. Bunnell then called her best
friend, Jacqueline Harrigan, to complain about the bad drug deal.
Bruce Murray, Harrigan's boyfriend, answered the phone and
listened to Bunnell's complaints. Murray then asked if Bunnell
wanted to do anything about the drug deal and Bunnell said she
did.
Murray, a member of the Black P-Stone street gang, contacted
Sirvonn Taylor,4 an “amnir” in the gang, for direction on how to
handle the situation. Taylor gave the go-ahead for a
confrontation, instructing Murray to take Dyqunn Mitchell,
another Black P-Stone, with him, Murray, Harrigan, and Bunnell
drove to pick up Mitchell. [Wilson], also a Black P-Stone, was
with Mitchell and overheard the conversation. [Wilson] was
subsequently asked if he also wanted to go. [Wilson] agreed
and a loaded gun was placed in the trunk of the car.
Upon arrival at the Kra[]vchenko residence, Bunnell and
Harrigan knocked on the door and spoke to a man inside. The
man was later identified as “Jordan,” the man who sold Bunnell
the fake drugs. At that point, Murray called Taylor again. As a
result of the conversation with Taylor, the men retrieved the gun
from the trunk and the entire group got back in the car.
[Wilson] instructed Bunnell to “creep” by the house and while
she did that, [Wilson] and Mitchell shot at the Kravchenko
residence. One of the bullets entered the bedroom window and
hit Darcy Kravchenko in the head, causing his death shortly
thereafter.
The above evidence was presented to a jury, which convicted
[Wilson] of Murder in the Third Degree, Conspiracy, and three
counts of Recklessly Endangering Another Person. After a pre-
sentence investigation, we sentenced [Wilson] as follows: for
the conviction of Murder in the Third Degree, a period of
incarceration of not less than 16 years, nor more than 40 years;
for the conviction of Conspiracy, a period of incarceration of not
less than 16 years, nor more than 40 years to run concurrent
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4
The trial court granted the Commonwealth’s motion to join Wilson’s case
with that of co-defendant Taylor.
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with the sentence imposed to Murder in the Third Degree; and
for the convictions of Recklessly Endangering Another, a period
of incarceration for each Count of not less than 7 months, nor
more than 18 months, with each sentence running consecutive
to the other sentences. [Wilson]’s aggregate sentence is a
period of incarceration of not less than 213 months, nor more
than 534 months. [Wilson] was entitled to a time credit of 380
days.
On September 16, 2016, [Wilson] filed a [m]otion for
[m]odification of [s]entence, alleging his sentence was excessive
in light of several mitigating factors. [The trial court] denied this
motion by [o]rder on September 20, 2016.
Trial Court Opinion, 11/14/16, at 1-3.
Wilson filed a timely notice of appeal and court-ordered Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. He raises the
following issues for our consideration:
(1) Did the trial court err in failing to grant [Wilson] a new trial
in light of its numerous erroneous evidentiary rulings,
including most notably its decision to allow the
Commonwealth to use a statement made by [Wilson]
during plea negotiations in its case-in-chief?
(2) Did the trial court err in failing to conclude that the verdict
was against the sufficiency of the evidence?
(3) Did the trial court err in refusing [Wilson’s] requested jury
instructions on (a) involuntary manslaughter[;] (b) the
voluntariness of his statement under Miranda[5;] and (c)
the “missing evidence” jury instruction?
(4) Did the trial court abuse its discretion by sentencing Wilson
to an aggregate state prison sentence of 17.75 years to
44.5 years in state prison?
Appellant’s Brief, at 5.
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5
Miranda v. Arizona, 384 U.S. 436 (1966).
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Wilson first contends that the trial court impermissibly permitted the
Commonwealth, in its case-in-chief, to use a statement he made during plea
negotiations at trial. The statement detailed Wilson’s involvement in the
homicide and his connection to the Black P-Stone Gang. Wilson contends
the court’s admission of his statement was a direct violation of Pa.R.E.
410(a)(4) and is reversible error.
Pursuant to Rule 410:
(a) Prohibited Uses. In a civil or criminal case, evidence of the
following is not admissible against the defendant who made the
plea or participated in the plea discussions:
(1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea;
(3) a statement made in the course of any proceedings
under Rules 311, 313, 409, 414, 424, 550 or 590 of the
Pennsylvania Rules of Criminal Procedure, Rule 11 of the
Federal Rules of Criminal Procedure, or a comparable rule
or procedure of another state; or
(4) a statement made during plea discussions with
an attorney for the prosecuting authority if the
discussions did not result in a guilty plea or they
resulted in a later withdrawn guilty plea.
(b) Exceptions. The court may admit a statement described in
Rule 410(a)(3) or (4):
(1) in any proceeding in which another statement made
during the same plea or plea discussions has been
introduced, if in fairness the statements ought to be
considered together; or
(2) in a criminal proceeding for perjury, false swearing or
unsworn falsification to authorities, if the defendant made
the statement under oath, on the record, and with counsel
present.
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Pa.R.E. 410 (emphasis added). The purpose behind Rule 410 is that “if
negotiations fail or the plea is withdrawn,” admissions arising out of and
inherent in the plea discussion are protected from admission into evidence at
trial. Commonwealth v. Calloway, 459 A.2d 795, 800 (Pa. Super. 1983).6
In Commonwealth v. Widmer, 120 A.3d 1023 (Pa. Super. 2015),
our Court concluded that the trial court properly admitted at trial the
defendant’s statements made during plea negotiations, finding that: the
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6
To the extent that the Commonwealth claims that Wilson waived this issue
on appeal for his failure to “then, or at any time thereafter raise the claim
that his plea agreement was entered into involuntarily or unknowingly,” we
disagree. On June 3, 2016, Wilson filed a petition for reconsideration of the
denial of his motion in limine asserting therein that:
The rationale for the admission of the proffer in
Commonwealth v. Widmer [] relied upon by the
Commonwealth is wholly distinguishable from the instant matter
in that Mr. Widmer expressly agreed, on the record at the time
of making the proffer, that the Commonwealth would be
permitted to use the proffer at trial in the event he reneged upon
the plea agreement. No such agreement was made with Mr.
Wilson.”
Petition for Reconsideration, 6/3/16, at ¶6 (emphasis added). Additionally,
at a May 24, 2016 proceeding, defense counsel raised the precise Rule 410
waiver issue, stating “it’s our position that the Commonwealth never did
carry its burden of proof to prove that there was a knowing and voluntary
waiver at the time that the proffer was given.” N.T. Proceedings, 5/24/16,
at 7.
From the above facts, it is clear that Wilson was alleging that he never
expressly or impliedly waived his rights under Rule 410 by agreeing to
permit the Commonwealth to use his statement at trial if he chose to
proceed to trial. Accordingly, we decline to find waiver. See Pa.R.A.P.
302(a) (issues not raised in lower court are waived and cannot be raised for
first time on appeal).
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rights at issue were waivable; the defendant’s waiver was knowing and
voluntary; the assistant district attorney unequivocally indicated that the
defendant’s statements would be used at trial if his plea was not entered;
there was no indication using the defendant’s statements would depend
upon whether he testified; and, the defendant’s chances of acquittal were
relatively slim. Id.
Wilson distinguishes Widmer by arguing that his statement was not
unsolicited or voluntary, and that he exhibited a subjective expectation that
his statement was for plea purposes only and could not be used at trial.
Appellant’s Brief, at 18-19. We agree.
In the instant case, on May 21, 2014, Wilson and his attorney met
with state police investigators and members of the District Attorney’s Office
at which time Wilson ultimately gave a statement detailing his involvement
in the homicide and his connections to the Black P-Stone Gang in exchange
for an open guilty plea to third-degree murder (accomplice), with no
agreement as to sentencing. Prior to giving his statement, Assistant District
Attorney Michael Mancuso (“ADA”) asked Wilson “to give a truthful proffer
and otherwise cooperate with the investigators in that case.” Statement
under Oath (“the Agreement”), 5/21/14, at 4. However, the ADA told
Wilson that “whatever you give will be subject to use and derivative use
immunity [and that the Commonwealth] will not be using your statements
against you or evidence derived from your statements against you in any
court proceeding.” Id. The ADA later qualified this agreement by stating,
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“But [the statement] has to be truthful . . . [o]r everything goes
away.” Id. (emphasis added).
Several months later, Wilson met with his attorney to prepare his
testimony for co-defendant Taylor’s omnibus pretrial motion hearing, in
conformity with the Agreement. During that meeting, Wilson contradicted a
detail he had given in his May 2014 statement.7 When Wilson later refused
to testify at Taylor’s omnibus hearing, the Commonwealth filed a motion
seeking imposition of sentence claiming that Wilson had breached the
Agreement.
Wilson later withdrew his guilty plea to third-degree murder, as an
accomplice, and the matter was scheduled for trial. Citing Rule 410, defense
counsel filed a motion to preclude the Commonwealth from using his
statement, made during plea negotiations, at trial. The trial judge denied
the motion, concluding that Wilson had waived the inadmissibility of his
statement under Rule 410 by breaching the agreement when he refused to
testify against Taylor. At trial, the Commonwealth used Wilson’s statement
under oath during its opening and closing arguments as well as referencing
it during its case-in-chief.
Although a plea agreement occurs in a criminal context, it
remains contractual in nature and is to be analyzed under
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7
Specifically, Wilson stated that the co-defendant had never offered to take
him to Maine to hide him from authorities after the homicide. Cf. Statement
under Oath of Brandon E. Wilson, 5/21/14, at 43-44.
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contract-law standards. Furthermore, disputes over any
particular term of a plea agreement must be resolved by
objective standards. A determination of exactly what promises
constitute the plea bargain must be based upon the totality of
the surrounding circumstances and involves a case-by-case
adjudication.
Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa. Super. 1995)
(citations omitted). Moreover, we must resolve any dispute in the terms by
objective standards and any ambiguities are to be construed against the
Commonwealth. Id.
The Commonwealth admits that Wilson’s statement was made during
plea negotiations in the underlying homicide case. See Commonwealth’s
Brief, at 15. See also Commonwealth v. Miller, 568 A.2d 228 (Pa. Super.
1990); Calloway, supra. We must, however, properly characterize the
statement to determine whether it is admissible. In Calloway, supra, our
Court set forth a test to determine the appropriate characterization of
statements made during plea negotiations:
[F]irst, whether the accused exhibited an actual subjective
expectation to negotiate a plea at the time of the discussion, and
second, whether the accused's expectation was reasonable given
the totality of the objective circumstances. Of primary
importance in assessing an accused’s subjective
expectation of negotiating a plea is whether the
Commonwealth showed an interest in participating in
such discussions. In line with this reasoning, voluntary,
unsolicited statements uttered by an accused to authorities
cannot be said to be made in furtherance of striking a plea
bargain.
Id. at 800-801 (emphasis in original).
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Instantly, the Commonwealth approached defense counsel and offered
Wilson a plea deal in exchange for his proffer. In fact, the Commonwealth
admits that Rule 410 is applicable in the instant case. See Appellee’s Brief,
at 21; see also Burno, supra (where under totality of circumstances
defendant exhibited subjective expectation to negotiate plea and expectation
was objectively reasonable, confession is type of statement protected under
Rule 410). While the trial court concluded that Wilson’s statement was
admissible because he ultimately failed to uphold his end of the bargain by
not testifying at Taylor’s pretrial hearing, the court incorrectly determined
that Wilson effectuated a knowing and intelligent Rule 410 waiver. In order
to overcome the prohibition against admitting statements made during plea
negotiations under Rule 410, a defendant must knowingly and voluntarily
waive the inadmissibility of his statements as part of the bargain he strikes
with the Commonwealth during plea negotiations. See Widmer, supra.
In concluding that Wilson’s statement was admissible, the trial court
stated:
In the conversation with ADA Man[c]u[s]o, [Wilson] stated that
he understood that “everything else goes away” if [he] failed to
uphold his end of the agreement. Reading this statement in
context, “everything” refers to ADA Mancuso’s immediately
preceding comment regarding use immunity of [Wilson’s]
statements. See id. We find that the exchange between ADA
Mancuso and [Wilson] falls within the standard set by the
Superior Court for waiver of [Wilson’s] rights under Rule 410.
[Wilson] was represented by counsel at the proffer. [Wilson]
has not put forward any evidence that shows an “affirmative
indication that the agreement was entered into unknowingly or
involuntarily.”
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Trial Court Opinion, 5/5/15, at 9. In its analysis, the trial court asserts that
Wilson failed to prove that he entered into the agreement unknowingly or
involuntarily.8 Keeping in mind the intent behind Rule 410, namely the
sanctity of plea negotiations and the role that bargaining plays in the
administration of justice, we disagree with the trial court and conclude that
the admission of Wilson’s statement was error. See generally
Commonwealth v. Jones, 544 A.2d 54 (Pa. Super. 1988).
Here, the language used by the ADA, during his May 21, 2014 meeting
with Wilson, does not clearly indicate that the Commonwealth predicated its
plea bargain with Wilson upon Wilson waiving his rights under Rule 410.
Contrary to the trial court’s conclusory analysis determining that Wilson
affirmatively waived his rights under 410, we find that any such intention is
equivocal at best where the ADA never specifically informed Wilson on the
record that the Commonwealth would use his statement against him at trial
or ever suggested that it could use the statement in its case-in-chief. Cf.
Widmer, supra (defendant waived Rule 410 rights where Commonwealth
“clearly indicated [its] intent to use [defendant’s] statements regardless of
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8
Interestingly, in its instruction to the jury, the trial judge acknowledged
that it was the Commonwealth’s burden to prove, by a preponderance of the
evidence, that Wilson’s statement was made voluntarily. N.T. Jury Trial,
6/15/16, at 129-30. The determination that Wilson made the statement
voluntarily, during the plea negotiation process, is a completely different
question than whether he also voluntarily agreed to waive his Rule 410
rights as part of the plea bargain.
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whether he testified at trial.”). In fact, the ADA indicated exactly the
opposite when it told Wilson that “[w]e will not be using your statements
against you or evidence derived from your statements against you in any
court proceeding.” N.T. Statement Under Oath, 5/21/14, at 4-5. Finally, by
choosing to use the phrase, “[o]r everything goes away,” the
Commonwealth did not make the waiver of Wilson’s Rule 410 rights a clear
and explicit condition of his plea agreement. Because we must resolve any
ambiguities against the Commonwealth, Kroh, supra, we find that
admission of the statement was in error.
Even if we conclude that Wilson did not waive his Rule 410 rights, we
must determine whether the admission of his statement at trial is harmful
error. A new trial is not required if the trial court’s error is harmless and
could not have contributed to the verdict. Commonwealth v. McCloskey,
656 A.2d 1366 (Pa. Super. 1995). Where the trial error arises under state
law, the proper standard for determining whether an evidentiary error is
harmless is a question of state law. Id. An error is harmless only if the
appellate court is convinced beyond a reasonable doubt that the error is
harmless. Commonwealth v. Story, 383 A.2d 155 (Pa. 1978).
In Commonwealth v. Burno, 154 A.3d 764 (Pa. 2017), our Supreme
Court recently addressed the issue of admission of a defendant’s inculpatory
statements, made during plea negotiations, in violation of Rule 410.
Although the Court concluded that the trial court erred in admitting the
statements, it nonetheless affirmed the defendant’s judgment of sentence
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finding that the error was harmless where the tainted evidence was
substantially similar to the untainted evidence, the untainted evidence was
indisputable, and the plea statement was merely cumulative of incriminating
tape recorded statements that defendant had made from the jail which were
played to the jury during trial. Id. at 787-88.
Here, Wilson claims that the admission of his statement was so
prejudicial that it essentially foreclosed his ability to present a meaningful
defense. Specifically, he asserts that the proffer “corroborated statements
by [his] alleged co-conspirators, establish[ed] his presence at the scene,
connect[ed] him with the Black P-Stone gang, and establish[ed] a motive for
the crime.” Appellant’s Brief, at 26.
It is well-settled that the Commonwealth bears the burden of
establishing that an error was harmless beyond a reasonable doubt. See
Commonwealth v. Story, 383 A.2d 155, 162 n.11 (Pa. 1978). This Court
has explained:
This burden is satisfied when the Commonwealth is able to show
that: (1) the error did not prejudice the defendant or the
prejudice was di minimis; or (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.
Commonwealth v. Levanduski, 907 A.2d 3, 21 (Pa. Super. 2006) (en
banc).
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The following requirements must be met before a court may conclude
that improperly admitted evidence is merely cumulative of other evidence
presented and, therefore, did not affect the jury verdict:
(1) There should be substantial similarity, in type of evidence
and incriminating factual details, between the tainted evidence
and the untainted evidence of which it is ‘cumulative’[;] (2) the
untainted evidence should be indisputable, either because the
facts are in some way affirmatively accepted by the defendant or
for other reasons[; and] (3) care should be taken that the
‘untainted’ evidence in no way derives from the tainted evidence.
Bruno, 154 A.3d at 787 (citing Story, supra at 165).
After a careful review of the record, we are not convinced, beyond a
reasonable doubt, that the error in admitting Wilson’s statement was
harmless. Story, supra. Evidence of a reduced verdict (here, third-degree
rather than first degree murder)9 to show an error was harmless has been
rejected by our Supreme Court. See Commonwealth v. Turner, 454 A.2d
537 (Pa. 1982).
In addition, here Jacqueline Harrigan was the only eyewitness to
testify for the Commonwealth. She, herself, was an accomplice to the same
crime and, admittedly, an unreliable source. In its brief, the Commonwealth
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9
The Commonwealth charged Wilson with and the court charged the jury on
first-degree murder, third-degree murder, criminal conspiracy to commit
criminal homicide, tampering with evidence, and three counts of REAP. The
criminal homicide charges were also charged separately as direct liability and
accomplice liability. N.T. Jury Trial, 6/15/16, at 138.
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relegates a portion of a footnote10 to analyze whether it was harmless error
to admit Wilson’s statement under Rule 410, stating:
Assuming arguendo that it was error to utilize the statement or
any portion thereof the evidence was harmless in light of the
Pennsylvania Supreme Court’s analysis in Burno[,] [s]upra[,]
where the statement was corroborated by the testimony of an
eyewitness, i.e., the co-defendant Jacqueline Harrigan who
clearly witnessed the appellant committing the drive[-]by
shooting along with the co-defendant Daygunn Mitchell [or, Buy
Buy] and also heard the appellant’s statements following the
drive by as he instructed the driver on how to leave the scene.
Additional corroboration included appellant’s texts to his co-
defendant Mitchell later in the day. Additionally, the strong
sentimental connection the appellant felt with the Black P-
Stone gang and its leaders Sirvonn Taylor was greatly
emphasized in several recorded inmate telephone conversations
the appellant had with Taylor in which he wanted “status” for his
work on behalf of the gang and continued loyalty to its leader.
Further, [Wilson’s] flight to avoid apprehension was properly
utilized in trial against him as further consciousness of guilt. As
a result of the foregoing and in light of the Burno analysis, any
error was harmless.
Commonwealth’s Brief, at 26 n.6 (emphasis added).
We first note that Harrigan’s testimony hardly amounted to her
“clearly witness[ing Wilson] commit[] the drive by shooting.” Id. At trial,
Harrigan, testifying for the Commonwealth, gave the following testimony
regarding the shooting:
It was in my right ear, and I was turned like this to ash out my
window, so it was directly behind me.
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10
We note that the trial court never addressed harmless error, finding that
Wilson had waived his rights under Rule 410, and, thus, his statement was
admissible.
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* * *
Because I was ashing out my cigarette, I could see in the side-
view mirror Shoota hanging out the window.
* * *
Yeah, he was like leaning, but his full upper body was out of the
window.
* * *
The first shot went off in my ear, and then I saw the second shot
in the side-view mirror, and I saw it light him up.
* * *
The flare from the gun. I could see his hair, and like I could see
that his whole upper body was out of the window, and then by
the time the third shot went off I put my head down.
* * *
Shoota tells [the driver] to go, to continue driving, because I
think when she got scared she stopped and he starts yelling at
her to go, go, go, and she takes off down the road. And then he
tells her “Drive slow, I’m not trying to get pulled over.”
N.T. Jury Trial, 6/13/16, at 52-54. Not only was Harrigan in the process of
putting out her cigarette and facing the front of the car when she heard the
first shot ring out, but she never definitely stated that she saw Wilson with
the gun in his hand or saw him shoot it. Rather, Harrigan testified that she
saw Wilson hanging out of the car and that the fired shot “lit him up.”
By contrast, Wilson stated that he told Day Day and the group that if
he knew they were going to try to do something “[he] wouldn’t [have] even
came [sic] . . . [he] would have been with my shorty in my brother[’s]
crib[,]” that he had never touched the gun and never shot the gun that
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day.11 Statement under Oath of Brandon E. Wilson, 5/21/14, at 33, 44, 71.
Then he stated that he tried to dissuade Day Day from using the gun, that
he told him “no,” and was about to reach for Day Day’s arm when the first
shot went off. Id. Wilson then stated that he grabbed Day Day’s hand, Day
Day told the driver to slow down, but Day Day continued to shoot, firing
three more shots and hitting the window of the room where the victim was
sleeping. Id. at 34. Finally, Wilson stated that he told the driver of the car,
immediately following the shooting, to slow down because he did not want to
get in an accident. Id.
Under these facts, one can hardly say that Harrigan’s testimony was
cumulative of Wilson’s; it was not substantially similar to Wilson’s statement,
nor was her testimony indisputable. Story, supra; Burno, supra.
Moreover, we cannot conclude the admission of Wilson’s statement resulted
in little to no prejudice or that the admitted and uncontradicted evidence of
guilt was so overwhelming. Levanduski, supra. Accordingly, we do not
find, beyond a reasonable doubt, that admission of Wilson’s statement could
not have contributed to the verdict. McCloskey, supra.
Here, where Wilson did not waive his Rule 410 rights, the court
admitted his statement made during plea negotiations, and where admission
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11
Wilson qualified this by stating that he had only touched the gun earlier in
the day at Day Day’s house. Statement under Oath of Brandon E. Wilson,
5/21/14, at 44.
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of the statement was not harmless error, we must reverse and remand for a
new trial.
Judgment of sentence reversed. Case remanded for new trial.12
Judge Platt joins the Memorandum.
Judge Bowes files a Concurring Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2018
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12
Having concluded that Wilson is entitled to a new trial, we need not review
his remaining claims of trial and sentencing court error.
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