Commonwealth v. Harper

230 A.3d 1231

COMMONWEALTH of Pennsylvania

v.Dawian HARPER, Appellant

No. 711 WDA 2019

Superior Court of Pennsylvania.

Submitted January 13, 2020

Filed March 30, 2020

George A. Mizak, Pittsburgh, for appellant.

Paul R. Scholle, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee

BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.^*

OPINION BY McCAFFERY, J.:

Dawian Harper (Appellant) appeals from the order entered in the Allegheny County Court of Common Pleas, denying his timely petition for relief under the Post Conviction Relief Act¹ (PCRA). Appellant avers the court erred in denying his claims that trial counsel was ineffective for: failing to seek suppression of Appellant's inculpatory statements on both Miranda² and corpus delicti grounds; and failing to object to a police officer's lay testimony that Appellant's gunshot wound was self-inflicted. After careful review, we reverse the order and remand for a new trial.

Appellant was charged with persons not to possess firearms and firearms not to be carried without a license³ after he made incriminating statements, on May 5, 2016, to City of Pittsburgh Police Officer Patrick Moffatt. We note that Appellant's attorney, Assistant Public Defender Lisa Caulfield (Trial Counsel),⁴ did not seek to suppress the statements.

This matter proceeded to a non-jury trial on February 8, 2017. The Commonwealth presented the testimony of Officer Moffatt, which we review in detail as follows. Around 2:30 a.m. on May 5, 2016, Officer Moffatt and his partner, Detective Klaczak,⁵ responded to a report of a shooting in the Hill District section of Pittsburgh. N.T. Trial, 2/8/17, at 10-11. When they arrived, there was no shooting in progress and no one present was involved in the shooting. Id. at 21. However, the police recovered three .40-caliber Smith & Wesson casings and nine 9-millimeter casings from the scene. Id. at 11.

Officer Moffatt was contacted by Sergeant Brian Schmitt, who was at the hospital, to go to the hospital to speak with Appellant. N.T. Trial at 13. We note Officer Moffatt was in uniform. N.T. Preliminary H'rg, 8/10/16, at 6. When Officer Moffatt arrived, Appellant was in a hospital bed and "had received some [medical] treatment." Id. at 14, 25. Officer Moffatt observed Appellant had a "gunshot wound" in his knee area. Id. at 14.

At trial, Officer Moffatt relayed that Sergeant Schmitt told him how Appellant was injured. N.T. Trial at 15. However, the trial court struck this testimony on hearsay grounds, and thereafter the Commonwealth asked Officer Moffatt what he observed. Id. The officer responded that he believed, based on his experience and his observation of "the angle and location" of the wound, that Appellant had "a self-inflicted gunshot wound." Id. at 15. Officer Moffatt further stated the wound was "[f]rom the top of the knee down towards the foot." Id. at 16. Trial Counsel failed to object to this testimony. See id.

Officer Moffatt further testified: "Upon my arrival ... I told [Appellant] that I was going to be performing a gunshot test on his hands to see if he had recently fired a gun."⁶ N.T. Trial at 14. Appellant initially stated he had never fired a gun. Id. at 16. Officer Moffatt did not, in fact, have a gunshot residue test kit, but instead performed a "fake test" by swabbing Appellant's hand with a Q-tip and saline. Id. at 19, 25-26. Appellant then stated he fired a handgun two days earlier at a gun range. Id. at 16. After Officer Moffatt performed the "test" on Appellant's hands, he told Appellant he would also test his pants for "any residual gunshot residue," and if his "story" about firing a gun two days earlier were true, "it would not be consistent with also finding gunshot residue on his pants." Id. at 17, 27. At that point, Appellant stated "he may have shot himself" when he was producing his gun because two men were shooting. Id.

At that time, Sergeant Schmitt, who was also present, advised Appellant of his Miranda rights. N.T. Trial at 17. Following the Miranda warnings, Appellant admitted to having a .40-caliber pistol on his person that night. Id. at 18. He stated he heard shooting and saw "two guys shooting," brandished his gun out of fear for his safety, fired more than once, and may have shot himself. Id. at 18, 27-28, 30. Appellant then told the officers he fled on foot and discarded his gun before getting a ride to the hospital. Id. at 30.

At trial, City of Pittsburgh Police Detective Michael Flynn also testified for the Commonwealth. He stated that on June 17, 2016, approximately a month and a half after the shooting, he and Detective Fallert⁷ interviewed Appellant at the police station. N.T. Trial at 33, 35. The detectives "briefed" Appellant on what he had previously told Sergeant Schmitt, but Appellant stated Sergeant Schmitt was lying, denied having a gun on the night of the shooting, and stated that any positive gunshot residue test may have been due to his firing a gun at a firing range. Id. at 33-34.

No firearm was recovered. There was no evidence at trial that anyone observed the shooting or that Appellant was in possession of a handgun. The parties stipulated that Appellant had a prior conviction that rendered him ineligible to possess a firearm. Id. at 20. Appellant did not testify or present any evidence.

The trial court found Appellant guilty of both firearm possession offenses. On June 12, 2017, the court imposed a sentence of three to six years’ imprisonment, to be followed by three years’ probation. Appellant filed a post-sentence motion, which was denied. Appellant appealed to this Court, but discontinued the appeal on March 1, 2018. Commonwealth v. Harper , 1718 WDA 2017 (Notice of Discontinuance of Action) (Pa. Super. Mar. 1, 2018).

On July 31, 2018, Appellant filed the underlying PCRA petition, pro se . The PCRA court appointed present counsel to represent him. Counsel filed an amended PCRA petition, averring Trial Counsel was ineffective for: not seeking suppression of the statements Appellant made at the hospital, on both Miranda and corpus delicti grounds; and not objecting to Officer Moffatt's testimony that Appellant's gunshot wound was self-inflicted.

The PCRA court conducted a hearing on April 25, 2019. Officer Moffatt testified that his purpose for conducting the fake gunpowder "test" was to "see if [he] could get a reaction from [Appellant] about his saying that he hadn't shot a gun." N.T. PCRA H'rg, 4/25/19, at 10. Trial Counsel testified, without further explanation, that she never considered filing a suppression motion and she believed there was no basis for a corpus delicti challenge to the admission of Appellant's statement. Id. at 22. Trial Counsel also testified she did not remember whether she considered objecting to Officer Moffatt's trial testimony that Appellant's wound was self-inflicted. Id.

The PCRA court denied Appellant's petition on April 29, 2019. Pertinently, the court found: (1) Appellant was not in custody when he made his initial statements to Officer Moffatt at the hospital, and thus any suppression motion based on Miranda would have been meritless; (2) Officer Moffatt properly testified as to his observation that Appellant's gunshot wound was self-inflicted; and (3) there would have been no merit to a corpus delicti objection, because the report to police of shots fired, recovery of ballistic evidence, and Appellant's gunshot wound together formed "substantial evidence" that a crime was committed. PCRA Ct. Op., 7/3/19, at 10-12, 14.

Appellant timely appealed and complied with the PCRA court's order to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.

Appellant presents three issues for our review:⁸

1. Was trial counsel ineffective in failing to file a motion to suppress inculpatory oral statements made by Appellant as he was questioned, without Miranda warnings, in his hospital bed after receiving treatment for a gunshot wound where police had formed the belief that Appellant's gunshot wound was self-inflicted and where the police officers engaged in a ruse designed to elicit an incriminating response?

2. Was trial counsel ineffective in failing to object to the admission of Appellant's inculpatory statements on the basis of the Corpus Delicti Rule where, absent Appellant's inculpatory statement, the corpus delicti for weapon possession offenses could not be made and where the only evidence that Appellant's wound was a self-inflicted gunshot wound was the detective's conclusory, unqualified lay opinion testimony?

3. Was trial counsel ineffective in failing to object to the opinion testimony of a police detective that Appellant's wound was a self-inflicted gunshot wound where such opinion is within the realm of a medical/forensic expert and where the detective was not qualified to render such an opinion?

Appellant's Brief at 3.

We first note the relevant standard of review:

[O]ur scope of review "is limited to the findings of the PCRA court and the evidence on the record of the PCRA court's hearing, viewed in the light most favorable to the prevailing party." ... We defer to the PCRA court's factual findings and credibility determinations supported by the record. In contrast, we review the PCRA court's legal conclusions de novo .

Commonwealth v. Becker , 192 A.3d 106, 112 (Pa. Super. 2018) (citation omitted), appeal denied , ––– Pa. ––––, 200 A.3d 11 (2019).

With respect to a claim of ineffective assistance of counsel,

[c]ounsel is presumed effective, and in order to overcome that presumption a PCRA petitioner must plead and prove that: (1) the legal claim underlying the ineffectiveness claim has arguable merit; (2) counsel's action or inaction lacked any reasonable basis designed to effectuate petitioner's interest; and (3) counsel's action or inaction resulted in prejudice to petitioner.

The petitioner must plead and prove all three prongs, and the failure to establish any one prong warrants denial of an [ineffectiveness] claim.

Id. at 112-13 (...