J-A11036-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BERNARD J. TERRELL,
Appellant No. 236 EDA 2015
Appeal from the Judgment of Sentence January 12, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011246-2014
BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.
DISSENTING MEMORANDUM BY SHOGAN, J.: FILED JULY 21, 2016
Although the learned Majority presents a thoughtful analysis of
Appellant’s first issue, I am compelled to respectfully dissent with regard to
its determination of Appellant’s second issue addressing the admission of
Appellant’s statement without first establishing the corpus delicti of the
crime.
The corpus delicti rule requires proof that a crime occurred,
independent of self-incriminating statements made by an accused. Our
standard of review for a challenge to the corpus delicti rule is well settled.
The corpus delicti rule is designed to guard against the “hasty
and unguarded character which is often attached to confessions
and admissions and the consequent danger of a conviction where
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*
Former Justice specially assigned to the Superior Court.
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no crime has in fact been committed.” The corpus delicti rule is
a rule of evidence. Our standard of review on appeals
challenging an evidentiary ruling of the trial court is limited to a
determination of whether the trial court abused its discretion.
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. The corpus delicti is literally the body of the crime; it
consists of proof that a loss or injury has occurred as a result of
the criminal conduct of someone. The criminal responsibility of
the accused for the loss or injury is not a component of the rule.
The historical purpose of the rule is to prevent a conviction
based solely upon a confession or admission, where in fact no
crime has been committed. The corpus delicti may be
established by circumstantial evidence. Establishing the corpus
delicti in Pennsylvania is a two-step process. The first step
concerns the trial judge’s admission of the accused’s
statements and the second step concerns the fact finder’s
consideration of those statements. In order for the statement
to be admitted, the Commonwealth must prove the corpus delicti
by a preponderance of the evidence. In order for the statement
to be considered by the fact finder, the Commonwealth must
establish the corpus delicti beyond a reasonable doubt.
Commonwealth v. Hernandez, 39 A.3d at 410-411 (emphasis in original)
(quoting Commonwealth v. Young, 904 A.2d 947, 956 (Pa. Super. 2006)).
With this standard in mind, we must determine the corpus delicti of
the crime charged, i.e., carrying a firearm on public streets or property in
Philadelphia in violation of the Pennsylvania Uniform Firearms Act (“PUFA”).
The relevant law provides that the Commonwealth had to prove,
independent of Appellant’s statement, that (1) an individual carried a firearm
at any time (2) on the public streets or public property in the City of
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Philadelphia.1 Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa. Super.
2000). If the Commonwealth established both prongs by a preponderance
of the evidence, we may find no abuse of discretion in the introduction of
Appellant’s inculpatory statement at trial.
In addressing this issue, the trial court stated the following:
In the instant matter, the Commonwealth’s independent
evidence consisted of Officer Kwiatkowski discovering a gun in
the first bedroom under the bed. (N.T. 1/12/15 pp. 19, 24).
Moreover, [Appellant] was located in the kitchen area adjacent
to the fire escape, moments after a radio call indicated that
someone was trying to exit the apartment via the fire escape.
(N.T. 1/12/15 pp. 16-17, 21-22). This evidence adequately
fulfilled the Commonwealth’s burden of demonstrating the
corpus delicti for Carrying Firearms on Public Streets or Public
Property in Philadelphia under § 6108 by a preponderance of the
evidence. Therefore, the introduction of [Appellant’s] statement
into evidence was proper.
Trial Court Opinion, 4/27/15, at 11.
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1
The Pennsylvania Crimes Code defines the crime as follows:
No person shall carry a firearm, rifle or shotgun at any
time upon the public streets or upon any public property in a city
of the first class unless:
(1) such person is licensed to carry a firearm; or
(2) such person is exempt from licensing under
section 6106 of this title (relating to firearms not to
be carried without a license).
18 Pa.C.S. § 6108. In addition, lack of a license is not an element of this
statutory provision. Commonwealth v. Ford, 461 A.2d 1281, 1287 (Pa.
Super. 1983).
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I fail to see how the evidence of a gun under a bed in a bedroom of a
private residence and Appellant near a fire escape in the kitchen of a private
residence could possibly establish both prongs of the crime charged by a
preponderance of the evidence. Even if the Commonwealth established that
the gun was under Appellant’s bed in Appellant’s bedroom, absent
Appellant’s statement, the Commonwealth did not prove by a preponderance
of the evidence that Appellant carried the gun on a public street or property
which could satisfy the corpus delicti rule. Therefore, I am constrained to
conclude that the Commonwealth failed to meet its burden necessary for the
admission of Appellant’s inculpatory statement regarding the gun.
Accordingly, I respectfully register my dissent.
Judge Mundy has joined the Dissenting Memorandum.
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