Commonwealth v. Hernandez

DISSENTING OPINION BY

SHOGAN, J.:

Although the Majority does a very thorough job of analyzing whether the corpus delicti was proven in this case, I cannot infer from the evidence adduced that the Commonwealth met both its burdens of proof. Moreover, I fail to see how the trial judge’s ruling can alternatively be affirmed under the coordinate jurisdiction rule or law of the case based simply on a pre-trial ruling on the admissibility of Appellant’s statement. I also do not agree that the closely related crimes exception applies under the specific facts of this case. Accordingly, I respectfully dissent.

In this case, as the Majority correctly establishes, the evidence at trial absent Appellant’s inculpatory statement was: 1) Officer Brian Smith pulled over a vehicle on a Philadelphia street; 2) the driver explained that the passenger, Omar Hay-ari, shot himself in the hand with a gun; 3) the gun was purchased by Appellant; and 4) Hayari was charged with possessing a firearm without a license. Majority Opinion, at 409-10. No evidence was introduced, either pre-trial or at trial, that Hay-ari was convicted of possessing a firearm without a license, nor was a Certificate of Non-Licensure introduced to demonstrate that Hayari had no right to carry a firearm in public. As asserted by Appellant, the Commonwealth did nothing to establish that Hayari was not, in fact, licensed to receive the firearm. Further, although Appellant did stipulate that a statement was taken, he did not stipulate to its contents or admission as the Majority opinion may suggest. Specifically, he did not stipulate that the firearm was not lost or stolen.

As a preliminary matter, I disagree with the Majority’s conclusion that Appellant’s claim is waived for failure to specify the error alleged. Majority Opinion, at 411. I recognize that Rule 1925(b) statements are crucial to the appellate process in that they are intended to aid the trial court in identifying and addressing the merits of the issues to be raised on appeal. Indeed, “[w]hen the trial court has to guess what issues an appellant is appealing, that is not enough for meaningful review.” See Commonwealth v. Smith, 955 A.2d 391, 393 (Pa.Super.2008) (en banc) (quoting Commonwealth v. Lemon, 804 A.2d 34, 37 (Pa.Super.2002) (concluding the following 1925(b) statement sufficient for appellate review: “As stated in the Commonwealth’s *415motion for reconsideration, did the lower court err in dismissing all charges against the defendant?”)). In Smith, we concluded that where the trial court is capable of filing a meaningful opinion, our appellate review could proceed unhindered. Id. While I am unsure of the quantum of additional information the Majority requires, the trial court overlooked its own concerns regarding Appellant’s 1925(b) statement and addressed the merits of Appellant’s sole issue on appeal. Likewise, the Majority commits four pages towards analyzing an issue it otherwise deems waived for vagueness. Majority Opinion, at 412-14. Accordingly, I cannot agree that Appellant waived the single issue before us, namely, whether the trial court erred in concluding the Commonwealth met its burden of proof in establishing the corpus delicti in this case.

I also cannot concur that Appellant’s claim of error fails because of the coordinate jurisdiction rule and the law of the case doctrine. The Majority overlooks both the procedural posture of the case and the Commonwealth’s agreement to have the corpus proven at trial.

First of all, I must agree with Chief Justice Castille that the application of the corpus delicti rule in Pennsylvania is problematic in that it “creates confusion for the jury [or judge in a non-jury trial] as factfinder and is difficult for the trial courts to enforce.” Commonwealth v. Persichini, 558 Pa. 449, 453, 737 A.2d 1208, 1210-1211 (1999) (Opinion in Support of Affirmance). The specific problem he identifies is “having the jury [or judge in a non-jury trial], in a single proceeding, make an initial determination about whether the Commonwealth has established beyond a reasonable doubt that a crime has occurred before it, at least theoretically, considers separately the defendant’s incul-patory extrajudicial statements as evidence.” Id. at 453, 737 A.2d at 1211. Chief Justice Castille further notes that to have a judge “first find that the corpus delicti has been found beyond a reasonable doubt before the statement could be presented to the jury [or judge in a non-jury trial]” would “unduly interfere with the jury’s [or judge’s in a non-jury trial] role as finder of fact and should not be condoned.” Id. at 454, 737 A.2d at 1211.

Despite these concerns and as acknowledged by the Commonwealth, the corpus delicti remains a rule of evidence that is to be applied in two phases under Pennsylvania law:

The first involves the threshold question of the admissibility of the confession. In this phase, the court must determine whether the Commonwealth has proven the corpus delicti of the crimes charged by a mere preponderance of the evidence. If the court is satisfied that, on the evidence present, it is more likely than not that a wrong has occurred through criminal agency, then the accused’s confession/admission is admissible. The second phase occurs after the confession has been admitted; the Commonwealth must additionally prove the corpus to the factfinder’s satisfaction beyond a reasonable doubt.

Commonwealth’s Brief at 7 n. 5 (citing Commonwealth v. Reyes, 545 Pa. 374, 382, 681 A.2d 724, 727-28 (1996)) (emphasis added).

Since Appellant waived his right to a jury trial, the factual findings were made by the trial court. At the time of the preliminary hearing and pre-trial, the Municipal Court judge and Judge Palumbo were tasked with deciding whether the statement could be admitted under the preponderance of evidence standard. During trial, however, the court necessarily had to decide whether, in its role as fact-finder, it could consider the statement *416in making a factual determination of guilt.1 The trial court as fact-finder could not consider the statement in determining whether Appellant committed the crime until the Commonwealth established beyond a reasonable doubt that the circumstances surrounding the alleged crime were more consistent than not with a loss or harm having resulted from criminal activity. Though the pre-trial and trial courts were considering the same statement, they did so for differing reasons, bearing differing consequences and imposing different burdens of proof on the Commonwealth. Accordingly, the trial court’s decision at trial would not have interfered with the conclusion reached pre-trial. Therefore, the concurrent jurisdiction rule is not implicated. Were it otherwise, there would be no way to ascertain whether the Commonwealth has met its greater burden for establishing corpus delicti for purposes of the fact-finder’s consideration. Thus, the coordinate jurisdiction rule and law of the case doctrine cannot be applied to the second prong of the test for establishing the corpus delicti.

I also note that the Commonwealth agreed that the corpus delicti would be proven at trial, as evidenced by the following exchange immediately prior to trial:

THE COURT: This is not a motion to suppress?
[THE COMMONWEALTH]: It’s a motion in laminae to establish corpus. It’s the Commonwealth’s position that this issue is in front of Judge Palumbo, Judge Palumbo ruled that corpus did exist, and that the matter should be held for Court. Which is essentially the same standard in which Your Honor will be deciding as to corpus. So, therefore, I don’t think it would be appropriate for counsel to raise that objection at trial. Should Your Honor believe that that is still a viable defense, the Commonwealth would present some evidence, as well as argument again.
THE COURT: Mr. Gottlieb, what I don’t understand is, if a Common Pleas court judge ruled on the issue of corpus, why do I need to rule on that again?
[TRIAL COUNSEL]: Because it is, even though it may not have been a reasonable standard, it’s still part of the defense to what the Commonwealth presents in its case in chief, and the last words as I remember of Judge Palumbo was there is enough here on the corpus issue to establish a prima facie case. This is a matter for the defense, which I always believe that with the corpus the defense is never given up and it would be our argument, and we’re going to stipulate to almost every piece of testimony that the district attorney will present.
THE COURT: This is the question, is the standard for corpus, is it a prima facie?
[THE COMMONWEALTH]: Your Honor, just in abundance of caution, I will just proceed to trial. Counsel can make the appropriate objection that he feels fit.
THE COURT: And you will need to establish with corpus, what is the standard? I don’t have it in front of me.
[THE COMMONWEALTH]: I believe it’s preponderance of the evidence.
[TRIAL COUNSEL]: I don’t think I disagree with that. I’m just trying to get all the law that I put together for the last argument.
*417THE COURT: It’s a much lower standard as to whether a crime has been committed.
[THE COMMONWEALTH]: The Commonwealth would argue that, despite the standard, I would think that the Commonwealth will be able to prove beyond a reasonable doubt that corpus exists as well, that’s my position.
THE COURT: Then let’s go straight to the colloquy.

N.T. Trial, 12/08/09, at 4-6 (emphasis added). The trial court subsequently confirmed this agreement when she stated to Appellant’s counsel, “I understand. So really this is about corpus for you?” and later ruled the corpus had been proven. Id. at 10, 17. The foregoing exchange reflects the Commonwealth’s concession to a review of the evidence supporting the corpus in order for the court to decide whether it could consider the statement before making a factual determination of guilt.

The Majority next challenges Appellant’s brief noting his proper citation to relevant easelaw2 then states Appellant “concedes] that the evidence could have been properly admitted under the preponderance of evidence standard.... ” Majority Opinion, at 412. Notwithstanding Appellant’s reliance on easelaw expressing a rule of law which he believes the trial court failed to follow, the Majority concludes he failed to cite to supporting authority. I disagree. First, I observe that Appellant makes no such concession regarding the admissibility of his inculpatory statement. On the contrary, Appellant merely raises a hypothetical in support of his greater claim of error, stating “... and even if the statement was properly admitted, there is not proof of corpus beyoiid a reasonable doubt and hence, the Court, sitting as fact-finder, should not have considered the statement.” Appellant’s Brief at 8 (emphasis added). Appellant then dedicates the next two pages of his brief to a discussion as to how the evidence adduced at trial failed to meet the standard set forth in Bullock. Therefore, I cannot conclude that Appellant’s claim is waived for failure to offer authority in support of his position.

Regarding the merits of Appellant’s issue on appeal, the Majority concludes the Commonwealth met its initial burden to prove corpus delicti by a preponderance of the evidence because its evidence was “more consistent with a crime than with accident.” Majority Opinion, at 412. In support of this conclusion, the Majority relies on evidence that Hayari shot himself in the hand with a gun registered to Appellant and that the Appellant never reported the weapon lost or stolen. Id.

Nothing on those facts alone suggests a crime in this Commonwealth. No matter how careless, it is not a crime to shoot oneself in the hand with a firearm. Furthermore, that fact, standing alone, suggests to me an accidental occurrence. Without more, the fact that the gun was owned by Appellant is not dispositive of a crime. I recognize that two weeks before Hayari’s shooting, the city of Philadelphia enacted its “Lost or Stolen Gun Ordinance.” Notably, the ordinance requires “gun owners to report their lost or stolen firearms to law enforcement officials within twenty-four hours after discovery of the loss or theft.” National Rifle Ass’n v. City of Philadelphia, 977 A.2d 78, 79 (Pa.Cmwlth.2009) quoting Bill No. 080032-A *418(emphasis added). Here, there is simply a lack of evidence that the gun was imper-missibly sold, loaned, stolen or lost without Appellant’s statement. Moreover, there is no evidence that if the gun were stolen or lost, Appellant had known or discovered that it was stolen or lost. There is no evidence in the record explaining when or how the gun left Appellant’s possession or how Hayari came to possess it, let alone an explanation proving criminality. Although there was evidence that Hayari was charged with possessing a firearm without a license, there was no evidence in the form of a Certificate of Non-Licensure which would indicate Hayari was not entitled to carry a firearm, nor is there evidence in the form of a conviction for that offense or otherwise that Hayari did not have a license. While one can draw an inference from evidence adduced that a situation is more likely a crime than an accident, one can infer neither a crime nor accident in the absence of evidence suggesting one or the other. Such a conclusion is merely speculation. For example, the Majority is not persuaded by what it characterizes as Appellant’s “unsupported speculation that ‘[t]he gun could have been stolen.’ ” Majority Opinion, at 413. However, absent Appellant’s inculpatory statement, there is similarly no evidence that the gun was illegally loaned. All possibilities, criminal and otherwise, remain equally plausible until the Commonwealth meets its burden of proof that a crime took place. See Commonwealth v. Reyes, 545 Pa. 374, 381-382, 681 A.2d 724, 727 (1996) (holding that while evidence establishing corpus delicti is sufficient, though it may also be supportive of an accident, such evidence is insufficient “if it is merely as consistent with an accident as with a crime”) citing Commonwealth v. Byrd, 490 Pa. 544, 556, 417 A.2d 173, 179 (1980).

I further note that while the Majority correctly concludes the Commonwealth may establish corpus delicti by circumstantial evidence, it must nevertheless do so, initially, by a preponderance of the evidence and ultimately must establish corpus delicti beyond a reasonable doubt in order for the fact-finder to consider Appellant’s inculpatory statement. As I have noted above, it was incumbent upon the trial court, at the time of trial, to determine whether the Commonwealth had established corpus delicti beyond a reasonable doubt before it could consider Appellant’s inculpatory statement. Again, absent Appellant’s inculpatory statement, the only evidence at trial is the fact that Hayari shot himself in the hand with a gun that was not his. Without evidence remotely suggesting how he came to possess the gun, I discern no illegality on these facts alone. Certainly, there is no circumstantial evidence from which one could infer beyond a reasonable doubt that a crime had been committed. Focused squarely on the facts, excluding the inculpatory statement, I am constrained to conclude the trial court abused its discretion in considering Appellant’s inculpatory statement.

I also do not agree with the Majority that the closely related crimes exception to the corpus delicti rule applies under the specific facts of this case. The Majority properly articulates the standard for the application of the exception. Majority Opinion, at 413. Specifically, where the defendant’s inculpatory statement relates to several crimes and “[ujnder those circumstances where the relationship between the crimes is sufficiently close so that the introduction of the statement will not violate the purpose underlying the corpus delicti rule, the statement of the accused will be admissible as to all the crimes charged.” Commonwealth v. Taylor, 574 Pa. 390, 401, 831 A.2d 587, 593 (2003).

*419Here, the Majority concludes specifically that the Commonwealth established the corpus with respect to the prohibition against lending or giving of firearms. Majority Opinion, at 413. Based on that conclusion, the Majority then opines that the closely related crimes exception applied to permit the consideration of Appellant’s statement in the fact-finder’s determination of guilt. However, as I have noted above, there is simply no independent evidence, circumstantial or otherwise, that the gun was impermissibly sold, loaned, stolen or lost.

Last, I note that the Majority discusses whether evidence was sufficient to support the judgment. However, Appellant makes no argument challenging the sufficiency of the evidence supporting the judgment. The thrust of his argument is that there was no evidence suggesting a crime which would thereby establish corpus delicti and therefore permit the admission and consideration of his inculpatory statement. Therefore, I am of the opinion that we need not engage in this line of analysis and respectfully dissent.

. Consequently, the fact that the notes of testimony from the pre-trial proceedings before Judge Palumbo in Motions Court are missing from the certified record is not dispositive of whether or not the corpus delicti was established at trial.

. Majority Opinion, at 412 (citing Commonwealth v. Bullock, 868 A.2d 516, 527 (Pa.Super.2005), affirmed, 590 Pa. 480, 913 A.2d 207 (2006), cert. denied, 550 U.S. 941, 127 S.Ct. 2262, 167 L.Ed.2d 1103 (2007)).