J-S43027-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

CLIFFORD TAYLOR GREEN

Appellant No. 218 WDA 2020

Appeal from the PCRA Order Entered February 14, 2020

In the Court of Common Pleas of Allegheny County

Criminal Division at No: CP-02-CR-0015533-2014

BEFORE: SHOGAN, J., STABILE, J., and KING, J.

MEMORANDUM BY STABILE, J.: FILED NOVEMBER 30, 2020

Appellant, Clifford Taylor Green, who is serving a sentence of

imprisonment for his conviction under 18 Pa.C.S.A. § 6105 (persons not to

possess firearms), appeals from an order dismissing his petition for relief

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

Appellant claims that trial counsel was ineffective for failing to object, under

the corpus delicti doctrine, to the admission of his written confession that he

possessed a firearm on October 19, 2014. We conclude that this argument is

devoid of merit, and we affirm.

The following evidence was adduced during trial. The parties stipulated

that Appellant was convicted of third-degree murder in 1998. In mid-October

2014, Appellant escaped from a correctional facility in Pittsburgh, and a

warrant was issued for his arrest.
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On October 19, 2014, Borough of Wilkinsburg Police Sergeant Cuiffi was

assisting City of Pittsburgh police in searching for Appellant, whom they

suspected was in the East Hills section of Pittsburgh. Sergeant Cuiffi received

Appellant’s description and photograph and learned that he had fled into a

wooded area of the East Hills that borders Wilkinsburg. At approximately 8:50

p.m., Sergeant Cuiffi observed Appellant standing in front of a store in the

1700 block of Montier Street. Sergeant Cuiffi radioed other officers for backup

and notified them that he located an individual matching Appellant’s

description.

Sergeant Cuiffi drove past Appellant, turned his vehicle around, and

approached Appellant. At that time, Appellant crossed the street and walked

toward a Dollar General store. Sergeant Cuiffi parked his vehicle, opened the

door, and told Appellant to stop. Appellant ignored Sergeant Cuiffi and

entered the Dollar General store.

Officers Hamlin and Waz arrived on the scene and assisted Sergeant

Cuiffi in setting up a perimeter around the Dollar General store. Sergeant

Cuiffi covered the rear entrance, Officer Waz covered the front entrance, and

Officer Hamlin covered the side entrance. Videotape surveillance footage

depicted Appellant entering the store and bearing to the left. About one

minute after entering, Appellant walked to the back of the store, through

double doors, into a storage area, and out the side door. Appellant was inside

the store no longer than a minute when he then exited through a storage area
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that led into the parking lot. Officer Hamlin took Appellant into custody. The

officers recovered a small amount of cocaine from Appellant’s front right pants

pocket. Following the search, Officer Waz transported Appellant to the police

station.

Sergeant Cuiffi entered the Dollar General store after Appellant’s arrest

and a store employee, Addie Thorn, told him that a firearm had been located

on one of the shelves.1 The sergeant accompanied Thorn to that shelf and

recovered a semiautomatic weapon. According to the affidavit of probable

cause appended to the criminal complaint, which the Commonwealth

submitted into evidence during Appellant's stipulated non-jury trial, Appellant

had been seen walking down the first aisle, the same aisle in which the firearm

was located. At the police station, Appellant was read his Miranda2 rights and signed

a Miranda rights waiver form. Sergeant Cuiffi questioned Appellant about

the firearm, and Appellant provided a written statement that he found the

firearm in the East Hills woods and discarded it in the Dollar General store

because the police were following him.

____________________________________________

1

In its opinion filed during Appellant’s direct appeal, the trial court stated that

Thorn had cleaned the shelf before Appellant entered the store, and there was

no firearm present at that time. The Commonwealth, however, did not

introduce these facts into evidence during Appellant’s trial; it mentioned these

details only during closing argument. Since these facts were not admitted as

evidence, we do not take them into account in this decision.

2 Miranda v. Arizona, 384 U.S. 436 (1966).
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Approximately one hour later, Appellant called for Sergeant Cuiffi and

requested to add something to his statement. Sergeant Cuiffi provided

Appellant a new statement form, wherein Appellant provided a statement that

omitted mention of a firearm and ended with a request for an attorney. Prior

to that time, Appellant had not requested an attorney. Appellant did not have

a license to carry a firearm.

Appellant was charged with persons not to possess firearms (18

Pa.C.S.A. § 6105), carrying a firearm without a license (18 Pa.C.S.A. § 6106)

and possession of a controlled substance, cocaine (35 P.S. § 780-113(a)(16)).

The trial court held a hearing on Appellant’s motion to suppress his custodial

statement and denied the motion. The case proceeded to a non-jury trial in

which the parties stipulated to admission of the testimony taken during the

suppression hearing as well as several exhibits, including his custodial

statement and the affidavit of probable cause underlying the criminal

complaint. Appellant also gave additional testimony in his defense. Following

the conclusion of trial, the court found Appellant guilty of all charges.

The court sentenced Appellant to concurrent terms of three to six years’

imprisonment on the Section 6105 and Section 6106 charges and one to two

years’ imprisonment on the drug possession charge. On direct appeal, this

Court reversed the conviction on the Section 6106 charge due to the

Commonwealth’s failure to prove that Appellant concealed the firearm.

Commonwealth v. Green, 2015 WL 4150473, *4 (Pa. Super., Sep. 19,
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2017). Appellant also argued that the corpus delicti doctrine barred the

admission of his custodial statement. We held that Appellant waived this

argument by failing to raise it in the trial court, and we dismissed this claim

without prejudice to Appellant’s right to raise it in a PCRA petition. Id. at *5.

On February 15, 2018, our Supreme Court denied Appellant’s petition for

allowance of appeal. Appellant did not appeal to the United States Supreme

Court.

On May 16, 2019, Appellant filed a timely PCRA petition3 arguing that

(1) trial counsel was ineffective for failing to object to admission of his

custodial statement during trial under the corpus delicti doctrine, and (2) the

trial court imposed an illegal sentence on Appellant’s drug possession charge.

Subsequently, Appellant filed an amended PCRA petition through counsel. The

PCRA court held that Appellant’s sentence on the drug possession charge

exceeded the statutory maximum.4 On January 22, 2020, the PCRA court

issued a notice of intent to dismiss the remaining argument in Appellant’s

amended PCRA petition, the corpus delicti claim. The court reasoned:

[T]he evidence admitted at [Appellant’s] stipulated non-jury trial

clearly established, albeit circumstantially, that [he] was the

individual who possessed and placed the firearm on the shelves of ____________________________________________

3 Appellant’s judgment of sentence became final on May 16, 2018, his deadline

for appealing to the United States Supreme Court. 42 Pa.C.S.A. § 9545(b)(3).

The PCRA’s one-year statute of limitations began running on this date. 42

Pa.C.S.A. § 9545(b)(1). Appellant filed his PCRA petition on the last day for

doing so under Section 9545(b)(1).

4 This ruling is not in question in this appeal.
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the Dollar General Store on the date is question. Additionally,

there was no dispute during the stipulated non-jury [trial] that

[Appellant] had been previously pled guilty to third degree murder

and as such, was not a person legally permitted to possess a

firearm due to that conviction.

Notice of Intent, 1/22/20, at 3.

On February 14, 2020, the PCRA court entered an order of dismissal.

Appellant filed a timely appeal to this Court. The PCRA court did not order

Appellant to file a Pa.R.A.P. 1925(b) statement or file a Pa.R.A.P. 1925(a)

opinion. The absence of a Rule 1925 opinion does not hamper appellate

review, however, because the PCRA court provided the above-referenced

reasons for denying the corpus delicti argument in its notice of intent.

Appellant raises a single issue in this appeal:

Whether the PCRA Court erred in summarily dismissing

[Appellant’s] contention that trial counsel was ineffective in

waiving and failing to assert or otherwise preserve a meritorious

pretrial and trial corpus delicti challenge to the admission of

[Appellant’s] pretrial confession which acknowledged possession

of a firearm, where that confession was the only evidence

presented by the prosecution on the essential elements of

possession and identity.

Appellant’s Brief at 5.

Appellate review of a PCRA court’s dismissal of a PCRA petition is limited

to the examination of “whether the PCRA court’s determination is supported

by the record and free of legal error.” Commonwealth v. Maxwell, 232

A.3d 739, 744 (Pa. Super. 2020). “The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.”

Id. “This Court grants great deference to the findings of the PCRA court, and
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we will not disturb those findings merely because the record could support a

contrary holding.” Id. In contrast, we review the PCRA court’s legal

conclusions de novo. Id.

Appellant argues that trial counsel was ineffective for failing to raise a

corpus delicti objection to the introduction of his confession admitting that he

possessed a firearm and discarded it at the Dollar General store. To obtain

relief on a claim of ineffective assistance of counsel, Appellant must prove

that: (1) the underlying claim has arguable merit; (2) counsel lacked a

reasonable basis for his actions or failure to act; and (3) the petitioner was

prejudiced by counsel's deficient performance such that there is a reasonable

probability that the result of the proceeding would have been different absent

counsel's error or omission. Commonwealth v. Pierce, 527 A.2d 973, 975

(Pa. 1987). “A claim of ineffectiveness will be denied if the petitioner's

evidence fails to satisfy any one of these prongs.” Commonwealth v.

Busanet, 54 A.3d 35, 45 (Pa. 2012). Counsel is presumed to have rendered

effective assistance. Commonwealth v. Sepulveda, 55 A.3d 1108, 1117

(Pa. 2012).

The corpus delicti rule provides that “a criminal conviction may not stand

merely on the out-of-court confession of one accused, and thus a case may

not go to the fact-finder where independent evidence does not suggest that a

crime has occurred.” Commonwealth v. Cuevas, 61 A.3d 292, 295 (Pa.

Super. 2013). The rule exists because courts are hesitant to convict a person
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of a crime solely on the basis of his statements. Id. The corpus delicti, or “body of the crime,” consists of two elements: (1) the occurrence of a loss or

injury, and (2) some person’s criminal conduct as the source of that loss or

injury. Id. The corpus delicti may be proven by circumstantial evidence. Id.

Establishing the corpus delicti

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. Murray, 174 A.3d 1147, 1154 (Pa. Super. 2017). To be

clear, the second step is satisfied by proof beyond a reasonable doubt that

loss or injury occurred and that “some person’s criminal conduct [w]as the

source of this loss or injury.” Commonwealth v. Chambliss, 847 A.2d 115,

119 (Pa. Super. 2004).

Appellant contends that the Commonwealth failed the second step

because it did not establish the corpus delicti beyond a reasonable doubt.

Section 6105, a provision in the Uniform Firearms Act (18 Pa.C.S.A. §§ 6101- 6128), provides in relevant part:

(1) A person who has been convicted of an offense enumerated in

subsection (b), within or without this Commonwealth, regardless

of the length of sentence or whose conduct meets the criteria in

subsection (c) shall not possess . . . a firearm in this

Commonwealth.
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(b) Enumerated offenses.—The following offense shall apply to

subsection (a):

* * *

Section 2502 (relating to murder).

18 Pa.C.S.A. § 6105. Third-degree murder is one of three categories of

murder within Section 2502. 18 Pa.C.S.A. § 2502(c). Applying the corpus

delicti rule to this statute, the Commonwealth had to prove two elements

through non-confession evidence beyond a reasonable doubt for the factfinder

to consider Appellant’s confession in its verdict: (1) someone possessed a

firearm, and (2) whoever did so was convicted of a crime listed in Section

6105(b).

The PCRA court concluded, in so many words, that Appellant’s corpus

delicti argument was a red herring, because the non-confession evidence not

only established the corpus delicti (the body of the crime) but proved

Appellant’s guilt under Section 6105 beyond a reasonable doubt. We agree.

The evidence, viewed in the light most favorable to the Commonwealth, would

have been sufficient to establish Appellant’s guilt under Section 6105 even if

the trial court did not take his confession into account.

There is no dispute that Appellant was convicted of a crime listed in

Section 6105(b), third-degree murder. Furthermore, the non-confession

evidence demonstrates that Appellant was in constructive possession of the

firearm.
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To prove the element of possession when the defendant does not have

actual possession of an item at the time of arrest, the Commonwealth must

establish constructive possession of the item. Commonwealth v. Parrish, 191 A.3d 31, 36 (Pa. Super. 2018). Constructive possession

is a legal fiction, a pragmatic construct to deal with the realities of

criminal law enforcement. Constructive possession is an inference

arising from a set of facts that possession of the contraband was

more likely than not. We have defined constructive possession as

conscious dominion. . . . We subsequently defined conscious

dominion as the power to control the contraband and the intent to

exercise that control. . . . To aid application, we have held that

constructive possession may be established by the totality of the

circumstances.

Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011). The

Commonwealth can prove constructive possession with circumstantial

evidence. Commonwealth v. Johnson, 26 A.3d 1078, 1094 (Pa. 2011). A

defendant’s mere presence at the scene, however, does not establish

constructive possession of contraband. Commonwealth v. Vargas, 108

A.3d 858, 869 (Pa. Super. 2014) (en banc); see also Parrish, 191 A.3d at

37 (location and proximity of actor to the contraband alone is not conclusive

of guilt).

Here, a chain of circumstantial, non-confession evidence establishes

Appellant’s constructive possession of the firearm. A police sergeant saw

Appellant on a public street and recognized him as a fugitive from a

correctional facility. The sergeant directed Appellant to stop, but Appellant

ignored him and entered a Dollar General store. The store’s surveillance
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videotape showed that Appellant turned left upon entering the store and

walked down the first aisle. After less than a minute, Appellant attempted to

leave the store through a side door, but a second police officer apprehended

him. Appellant’s flight from the sergeant and his attempt to evade capture

signify his consciousness of guilt. Commonwealth v. Hargrave, 745 A.2d

20, 23 (Pa. Super. 2005) (“[f]light does indicate consciousness of guilt, and a

trial court may consider this as evidence, along with other proof, from which

guilt may be inferred”). A store employee informed the sergeant that a

firearm had been located on one of the shelves. The sergeant recovered the

firearm from a shelf in the first aisle, where Appellant had been seen walking

minutes earlier. Viewed together, the evidence of (1) Appellant’s recent

escape from a correctional facility, (2) his flight after the sergeant directed

him to stop, (3) his attempt to escape through the side door of the store, and

(4) the discovery of the firearm on the path that Appellant had taken through

the store moments earlier demonstrates Appellant’s constructive possession

of the firearm beyond a reasonable doubt. See Commonwealth v. Roberts, 133 A.3d 759, 767-68 (Pa. Super. 2016) (evidence was sufficient for jury to

conclude that two bags of cocaine were dropped by defendant during pursuit

by police officers, and therefore was sufficient to prove constructive

possession as element of possession with the intent to deliver controlled

substance; officers did not discover cocaine on defendant’s person, but officer

testified that he backtracked defendant’s path during chase in attempt to find
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his dropped radio, and that, in area where he observed defendant run around

parked vehicle, he found cell phone with picture of defendant as screen saver

and bags of cocaine).

Appellant argues that the evidence did not prove possession because

the store was open to the public, so some visitor other than Appellant might

have brought the firearm into the store. We find this argument speculative. There is no evidence that anybody else was in the aisle that Appellant passed

through at or near the time of these events. Indeed, there is no evidence that

any other person visited the store that day (or, indeed, on any other day). Absent such evidence, we cannot infer that another visitor brought the firearm

into the store. For these reasons, we conclude that Appellant’s claim of ineffective

assistance lacks arguable merit. Since it fails this prong, we need not consider

the remaining two prongs of the ineffectiveness test. Busanet, 54 A.3d at

45. The PCRA court correctly determined that Appellant is not entitled to

relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/30/2020