Com. v. Torres, E. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ELIO KEITH TORRES :
:
Appellant : No. 1318 MDA 2019
Appeal from the Judgment of Sentence Entered July 10, 2019
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0002225-2018
BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, P.J.: FILED: MARCH 30, 2020
Elio Keith Torres appeals from the judgment of sentence entered in the
Berks County Court of Common Pleas following a jury verdict finding him guilty
of persons not to possess firearms, see 18 Pa.C.S.A. § 6105(a)(1). For this
offense, the trial court sentenced Torres to five to ten years of incarceration.
On appeal, Torres singularly challenges the trial court’s decision to deny his
request for specific jury instructions. After a thorough review of the record,
we affirm.
In April 2018, an officer from the Reading Police Department responded
to a report of shots having been discharged from a firearm. At the purported
scene of the gunfire, that officer noticed blood leading into an adjacent
residence. The officer then entered that residence and found a man’s sneaker
with a hole through the toe area, a large pool of blood, a 9mm firearm, a spent
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shell casing, and a live round of ammunition. Subsequent DNA testing
established the existence of Torres’s DNA on the 9mm firearm.
While the first officer searched the residence, a different officer found
Torres with a gunshot wound to his foot some four blocks away. Immediately
thereafter, Torres received medical treatment at a hospital. While at that
hospital, a third police officer photographed Torres’s injury.
Torres, in explaining what happened, told him that something went
awry, which resulted in Torres discharging a firearm. However, Torres, a few
moments later, explained that someone else had shot him. After police
reviewed a communication between Torres and his girlfriend, two 9mm clips
were found underneath two porch boards close in proximity to where the
police had found Torres.
Prior to trial, Torres requested several jury instructions dealing with the
voluntariness of the statement he made at the hospital as well as one jury
instruction addressing the Commonwealth’s burden of establishing the
commission of a crime, otherwise known as corpus delicti. Eventually, after
hearing the entirety of the Commonwealth’s case against Torres, the trial
court granted Torres’s request as to one of his proposed jury instructions, but
denied the other six suggestions. Ultimately, the jury found Torres guilty.
After sentencing, Torres filed a timely pro se notice of appeal, and
thereafter, the court appointed counsel to represent him in this appeal. The
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appeal is now properly before us as both the trial court and Torres have
complied with the dictates of Pa.R.A.P. 1925.
Torres raises one issue for our review:
1. Did the trial court err in denying Torres’s request for six specific
jury instructions addressing the voluntariness of his hospital
statement as well as the Commonwealth’s failure to
demonstrate that a crime was committed?
See Appellant’s Brief, at 4.
Torres’s issue is a challenge to the instructions given to the jury.
When reviewing a challenge to part of a jury instruction, we must
review the jury charge as a whole to determine if it is fair and
complete. A trial court has wide discretion in phrasing its jury
instructions, and can choose its own words as long as the law is
clearly, adequately, and accurately presented to the jury for its
consideration. The trial court commits an abuse of discretion only
when there is an inaccurate statement of the law.
Commonwealth v. Jones, 954 A.2d 1194, 1198 (Pa. Super. 2008). Further,
we have held that
in reviewing a challenge to the trial court's refusal to give a specific
jury instruction, it is the function of this [C]ourt to determine
whether the record supports the trial court's decision. In
examining the propriety of the instructions a trial court presents
to a jury, our scope of review is to determine whether the trial
court committed a clear abuse of discretion or an error of law
which controlled the outcome of the case. A jury charge will be
deemed erroneous only if the charge as a whole is inadequate, not
clear or has a tendency to mislead or confuse, rather than clarify,
a material issue. A charge is considered adequate unless the jury
was palpably misled by what the trial judge said or there is an
omission which is tantamount to fundamental error.
Consequently, the trial court has wide discretion in fashioning jury
instructions. The trial court is not required to give every charge
that is requested by the parties and its refusal to give a requested
charge does not require reversal unless the appellant was
prejudiced by that refusal.
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Commonwealth v. Brown, 911 A.2d 576, 582-83 (Pa. Super. 2006)
(quotation marks omitted).
We have further clarified that “[i]nstructions regarding matters which
are not before the court or which are not supported by the evidence serve no
purpose other than to confuse the jury.” Commonwealth v. Patton, 936
A.2d 1170, 1176 (Pa. Super. 2007). Additionally, “[t]he trial court is not
required to give every charge that is requested by the parties and its refusal
to give a requested charge does not require reversal unless the [a]ppellant
was prejudiced by that refusal.” Commonwealth v. Thomas, 904 A.2d 964,
970 (Pa. Super. 2006).
In his brief, Torres bifurcates his arguments in support of his proposed
jury instructions by first discussing the applicability of corpus delicti. Then, he
discusses the voluntariness of the statement he made while at the hospital
and the attendant instructions he believes should have followed.
Torres initially suggests that because the Commonwealth failed to
establish the corpus delicti, or the fact that a crime has been committed, in
this case, the trial court committed an error of law by not utilizing
Pennsylvania Suggested Criminal Jury Instruction Section 3.02A in its jury
instructions.
It is beyond cavil that, in this Commonwealth, a confession is not
evidence in the absence of proof of the corpus delicti .... [W]hen
the Commonwealth has given sufficient evidence of the corpus
delicti to entitle the case to go to the jury, it is competent to show
a confession made by the prisoner connecting him with the crime.
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Commonwealth v. Taylor, 831 A.2d 587, 590 (Pa. 2003) (quotation marks
and citation omitted). “Corpus delicti” means, literally, “the body of a crime.”
Id. (citation omitted).
The corpus delicti rule requires the Commonwealth to present
evidence that: (1) a loss has occurred; and (2) the loss occurred
as a result of a criminal agency. Only then can the Commonwealth
... rely upon statements and declarations of the accused to prove
that the accused was, in fact, the criminal agent responsible for
the loss.
Commonwealth v. Hernandez, 39 A.3d 406, 410 (Pa. Super. 2012).
The rule is intended to prevent the use of confessions occurring in the
heat of the moment to convict a defendant where no crime has actually
occurred. See Commonwealth v. Ahlborn, 657 A.2d 518, 521 (Pa. Super.
1995). “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.” Hernandez,
39 A.3d at 410. (quotation marks and citations omitted).
“[O]nly inculpatory statements of an accused are subject to the
protection of the corpus delicti rule.” Commonwealth v. Verticelli, 706 A.2d
820, 824 (Pa. 1998), abrogated on other grounds, Commonwealth v.
Taylor, 831 A.2d 587 (Pa. 2003). A statement is inculpatory if it “specifically
connects [the defendant] ... to criminal activity.” Id., at 824. Moreover, the
corpus deliciti can be demonstrated through circumstantial evidence. See
Commonwealth v. Reyes, 681 A.2d 724, 727 (Pa. 1996).
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Torres states that because “there was no witness to the actual gunshot
other than [Torres] and because an inference of an accident at the hands of
another is just as likely as [Torres] holding a gun when it was fired, the
Commonwealth failed to establish through circumstantial evidence [the
possession-based firearms offense.]” Appellant’s Brief, at 12. He argues “the
court should have instructed the jury to at least consider the relevant portions
of the instructions that allowed for them, if they chose to do so, disregard
[Torres’s] statement [admitting to firing a weapon].” Id. When the court did
not issue the requested instruction, “the jury simply made a determination
that [Torres] actually uttered those words.” Id.
We find that there was ample circumstantial evidence presented by the
Commonwealth establishing the existence of a crime, which, as manifested in
the court’s action, therefore allowed for the admission of Torres’s statement.
“The application of the corpus delicti rule occurs in two distinct phases.”
Ahlborn, 657 A.2d at 521. The corpus delicti rule requires the court to
determine whether, generally, the Commonwealth has established the
commission of a crime by a preponderance of the evidence. See id. Upon
satisfaction of this standard, a confession or admission would be admissible
as evidence. See id.
After this initial admissibility inquiry, the Commonwealth must
thereafter prove, beyond a reasonable doubt, the corpus delicti of the crimes
charged. See id. Then, if a crime is proven by the Commonwealth beyond a
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reasonable doubt, the jury may consider an inculpatory statement as
evidence. See Commonwealth v. Fried, 555 A.2d 119, 121 (Pa. Super.
1989).
Here, Torres stated to a police officer that “shit went off and I shot my
shit.” N.T., 9/12/19, at 110. As an inculpatory statement given that Torres
could not possess a firearm,1 the corpus delicti rule would therefore apply. As
such, the Commonwealth, in order to place Torres’s admission into evidence,
had to demonstrate by a preponderance of the evidence that a crime, in fact,
occurred, e.g., a person prohibited from possessing a firearm in fact did so.
At trial, the Commonwealth utilized a theory of constructive possession
to demonstrate the possession of a firearm. “Constructive possession is an
inference arising from a set of facts that possession of the contraband was
more likely than not.” Commonwealth v. Walker, 874 A.2d 667, 677-78
(Pa. Super. 2005). “Constructive possession may be established by the totality
of the circumstances.” Id., at 678.
The totality of the circumstances proffered by the Commonwealth
included: 1) a finding of pooled blood, a shoe with a bullet hole in it, a bullet,
and a spent shell casing; 2) the existence of Torres, a mere four blocks away
from those four items, carrying a wound consistent with the aforementioned
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1 The Commonwealth presented unrebutted evidence that Torres was
prohibited from possessing a firearm due to his prior conviction for robbery.
See N.T., 6/19/19, at 94-95. On appeal, Torres does not raise any challenge
concerning his status as a person not to possess a firearm.
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shoe; 3) the discovery of Torres’s DNA on the firearm; and 4) the retrieval of
a gun clip after reviewing a communication between Torres and his girlfriend.
Clearly, when considered together, the trial court did not abuse its discretion
when it concluded that the Commonwealth had established that a crime had
been committed by a preponderance of the evidence. This decision allowed
for the admission of Torres’s statement wherein he admitted to having fired a
weapon.
Although the trial court employed the proper standard for admitting
Torres’s extra-judicial statement, there is no evidence that the jury was
charged correctly based on the “dual level of proof application of the [corpus
delicti] rule.” Ahlborn, 657 A.2d at 302. “[T]he law of Pennsylvania continues
to require that the Commonwealth prove the existence of the corpus delicti
beyond a reasonable doubt before the jury may consider the defendant’s
confession. A jury instruction to that effect is, therefore, crucial[.]” Id.
However, even if the trial court erroneously charged the jury, if there is
sufficient circumstantial evidence to convict an individual beyond a reasonable
doubt absent the confession, that person would not be entitled to a new trial.
See Reyes, 681 A.2d at 730. Accordingly, “we must determine whether
viewing all of the evidence, in the light most favorable to the Commonwealth
as verdict winner, supports the factfinder’s finding.” Id.
Wholly excluding Torres’s statement, we are satisfied that there was
overwhelming evidence to support the jury’s conclusion that the
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Commonwealth proved Torres’s guilt beyond a reasonable doubt. Of most
importance is the finding of Torres’s DNA on the weapon he was charged with
possessing. See N.T., 9/12/19, at 169-70 (identifying that a swab of the pistol
revealed DNA that “matched the DNA profile obtained from Elio Torres”). From
this piece of evidence, the jury was free to conclude that Torres possessed the
firearm beyond a reasonable doubt. Therefore, Torres is not entitled to any
relief on this issue.2
As to Torres’s argument that the trial court should have included five
specific instructions that controvert the voluntariness of his statement, this
argument, too, misses the mark. Torres offers approximately four sentences
in his brief to support his involuntariness assertion. See Appellant’s Brief, at
13. In summation, Torres implies that the officer taking photographs of his
injuries that were not life-threatening evinces conduct that could have been
reasonably likely to bring out an admission.
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2 Although we have analyzed this issue in the context of the corpus delicti
rule’s applicability, it is unclear how this rule specifically applies to a case
dealing exclusively with the crime of possessing a firearm while being a person
not to possess a firearm. A firearm, by itself, cannot provide the basis for a
finding that this specific crime has been committed. Obviously, as the name
suggests, this crime requires a specific individual that is not allowed to possess
a firearm to, in fact, possess that instrument. It would be hard, if not
impossible, for the Commonwealth to demonstrate that a persons not to
possess a firearm offense has been committed without necessarily implicating
Torres. In any event, delving into this topic is not inherently important as we
find there to be sufficient evidence for the jury to adjudicate guilt beyond a
reasonable doubt.
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Torres neither cites to the record nor identifies any authority in support
of his argument. Arguably, Torres has waived this issue as the failure to
support an argument with pertinent authority is a violation of our briefing rules
which results in waiver of the unsupported issue. See Commonwealth v.
Spotz, 18 A.3d 244, 281 n.21 (Pa. 2011) (without a “developed, reasoned,
supported, or even intelligible argument[, t]he matter is waived for lack of
development”).
However, even if we were to not find waiver, his claim would still fall
short; there is simply no indication that Torres’s statement was not voluntary.
First, the officer at the hospital was the only officer present with Torres, and
he did not ride with Torres in the ambulance that traveled to the hospital. See
N.T., 9/12/19, at 107. That officer acted because, in accordance with his police
department’s standard practice, if an officer believes there to be a “a victim
involved, [a police officer] go[es] over to photograph the victim’s injuries,
injuries sustained during an incident[.]” Id.
The officer in this case “briefly told [Torres] what [his] duties were and
the reason for [his] presence.” Id., at 115. He also explained to Torres that
he was there “to photograph his injury.” Id. Torres, by his own volition, told
the officer that “he wanted to tell [him] what happened.” Id., at 108, 110.
The officer did not ask for Torres to tell him what happened and did not “in
any way … explicitly or implicitly tell [Torres] or demonstrate to [Torres] that
he needed to tell [the officer Torres’s] story.” Id., at 110. However, after the
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officer radioed to his supervisor with the information Torres provided, Torres’s
demeanor changed, becoming nervous and rigid. See id., at 111-12.
We conclude that the trial court did not abuse its discretion in denying
several jury instructions related to the voluntariness of Torres’s statement.
Other than mere speculation, Torres has offered nothing to controvert the
officer’s testimony describing the situation at the hospital as being
conversational instead of interrogatory. Furthermore, Torres does not suggest
that the officer’s behavior was equivalent to that of a custodial interrogation.
See Commonwealth v. Garvin, 50 A.3d 694, 698 (Pa. Super. 2012)
(identifying that if a defendant gives a statement without police interrogation,
we consider that statement to be voluntary and not subject to suppression).
Based on the foregoing, Torres has failed to establish that it was in error
for the trial court to reject his proposed jury instructions. If the trial court had
read the jury instructions suggested by Torres, those instructions would not
have been supported by the record and resultantly only would have confused
the jury. As such, Torres is not entitled to relief, and we affirm his judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/30/2020
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