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*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

EDWARD L. MERRITT

Appellee No. 1202 WDA 2015

Appeal from the Order Entered July 29, 2015

In the Court of Common Pleas of Cambria County

Criminal Division at No(s): CP-11-CR-0002202-2014

BEFORE: SHOGAN, OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.: FILED DECEMBER 29, 2016

Appellant, the Commonwealth of Pennsylvania (Commonwealth), 

appeals from an order entered on July 29, 2015 granting Edward L. Merritt’s 

(Merritt) motion in limine pursuant to the corpus delecti rule. After careful 

consideration, we are constrained to affirm.

The trial court prepared the following summary of facts based upon 

testimony received during the preliminary hearing held in this case on 

October 22, 2014:

Michael Kanuch ([Officer] Kanuch)[,] an officer with the 

Johnstown Police Department (JPD)[,] testified that on July 31, 

2014, he along with other officers executed a search warrant on 

the residence of India Snyder (Snyder) [] in Johnstown. Officer 

Kanuch testified that at approximately 6:00 a.m. officers used a 

ram to breach the front door and gain access to the residence. 

Officer Kanuch was the second officer through the door and upon 

entering observed Merritt sitting on a couch with his hands 

raised. Officer Kanuch testified that he did not observe Merritt 
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make any movements and that Merritt was immediately taken to 

the ground and handcuffed by other officers.

In addition to Merritt, Snyder and Bernadette Urbassik 

(Urbassik) were found in the residence. During the search[,] 

officers located the following items: a [loaded 12-gauge] 

Remington shotgun under the couch; 68 stamp bags of heroin 

located . . . in the couch cushions; items of drug paraphernalia . 

. . in the kitchen; $4,[654.00] in cash and shotgun shells . . . in 

an upstairs bedroom.

Merritt was transported to the Johnstown Public Safety building 

where JPD detective Brett Hinterliter (Hinterliter) interviewed 

him. Merritt was read his Miranda[1]rights, indicated that he 

understood those rights, that he wished to waive them, and 

signed a waiver of rights form. In his statement to Hinterliter, 

Merritt acknowledged that one time while reaching under the 

couch for some marijuana that he dropped he felt the shotgun 

and pulled it out from under the couch. Snyder then told him 

that she owned the shotgun and that it was registered. At that 

time[,] Merritt placed the shotgun back under the couch and 

never touched it again.

Officer Kanuch testified that Snyder admitted to ownership of the 

shotgun and that it was registered to her. Officer Kanuch further 

testified that the [police] had information from confidential 

sources that a black male had been at [Snyder’s] house for 

several weeks but [Officer Kanuch] was unable to say if Merritt 

was that person. Officer Kanuch further testified that [Snyder’s] 

house was under surveillance for three days in the period of July 

21st to July 31st and that Merritt was not observed entering or 

leaving the house during those periods. Finally, Officer Kanuch 

was unable to say if any clothing or personal items [owned by 

Merritt] were discovered in the house.

Trial Court Opinion, 9/28/15, at 2-3.

The procedural history in this case is as follows. On July 31, 2014, the 

police filed a criminal complaint charging Merritt with the following offenses: 

____________________________________________

1 Miranda v. Arizona, 384 U.S. 436 (1966).
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count one – possession with intent to deliver a controlled substance, 35 P.S. 

§ 780-113(a)(30); count two – knowing and intentional possession of a 

controlled substance, 35 P.S. § 780-113(a)(16); count three – possession of 

a firearm by a prohibited person, 18 Pa.C.S.A. § 6105(a)(1); and, count four 

– possession of drug paraphernalia, 35 P.S. § 780-113(a)(32). Following a 

preliminary hearing on October 22, 2014, the magistrate bound all charges 

over to the trial court. On March 16, 2015, the Commonwealth filed a 

criminal information that withdrew counts one, two, and four and maintained 

a single charge of possession of a firearm by a prohibited person.

On May 15, 2015, Merritt filed an omnibus pretrial motion seeking 

suppression of his statement regarding the shotgun recovered from Snyder’s 

residence. The motion cited two grounds for relief. First, Merritt argued 

that his statement should be suppressed because police obtained it in 

violation of his rights under Miranda. In the alternative, Merritt alleged that 

his statement should be excluded2 under the corpus delecti rule since the 

Commonwealth failed to establish the elements of the firearms offense 

absent his admission. The trial court denied Merritt’s suppression motion 

____________________________________________

2 This aspect of Merritt’s brief in support of his omnibus pretrial motion 

requested relief in the form of “exclusion,” rather than “suppression,” 

because he sought relief via a motion in limine, a procedural device used to 

test the admissibility of evidence.
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but ordered exclusion of his statement by opinion and order issued on July 

29, 2015. This appeal followed.3

On appeal, the Commonwealth lists two related questions for our 

consideration.

Whether the trial court erred when it found that the 

Commonwealth failed to prove the corpus delecti of the crime of 

possession of a firearm by a [prohibited person], when a loaded 

shotgun was found underneath the couch where a convicted 

felon was sleeping.

Whether the trial court erred when it found that the 

Commonwealth failed to prove the corpus delecti of the crime of 

possession of a firearm by a [prohibited person], when the trial 

court required the Commonwealth to directly link [Merritt] to the 

crime.

Commonwealth’s Brief at 4.

As both issues raised by the Commonwealth challenge the trial court’s 

order granting Merritt’s motion in limine, we apply the following principles in 

our review of those claims:

A motion in limine is used before trial to obtain a ruling on the 

admissibility of evidence. Northeast Fence & Iron Works, 

Inc. v. Murphy Quigley Co., Inc., 933 A.2d 664 (Pa. Super. 

2007). “It gives the trial judge the opportunity to weigh 

potentially prejudicial and harmful evidence before the trial 

____________________________________________

3 The Commonwealth filed a timely notice of appeal on July 30, 2015. That 

same day, the trial court directed the Commonwealth to file, within 21 days, 

a concise statement of errors complained of on appeal. See Pa.R.A.P. 

1925(b). The Commonwealth timely filed its concise statement on August 

14, 2015 and the trial court issued its Rule 1925(a) opinion on September 

28, 2015. The Commonwealth certified in its notice of appeal that the trial 

court’s order terminated or substantially handicapped its prosecution of 

Merritt. See Pa.R.A.P. 311(d).
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occurs, thus preventing the evidence from ever reaching the 

jury.” Commonwealth v. Reese, 31 A.3d 708, 715 (Pa. Super. 

2011) (en banc). A trial court's decision to grant or deny a 

motion in limine “is subject to an evidentiary abuse of discretion 

standard of review.” Id.

Questions concerning the admissibility of evidence lie within the 

sound discretion of the trial court, and we will not reverse the 

court's decision absent a clear abuse of discretion. 

Commonwealth Financial Systems, Inc. v. Smith, 15 A.3d 

492, 496 (Pa. Super. 2011), citing Stumpf v. Nye, 950 A.2d 

1032, 1035–1036 (Pa. Super. [2008]). “An abuse of discretion 

may not be found merely because an appellate court might have 

reached a different conclusion, but requires a manifest 

unreasonableness, or partiality, prejudice, bias, or ill-will, or 

such lack of support so as to be clearly erroneous.” Grady v. 

Frito–Lay, Inc., 839 A.2d 1038, 1046 (Pa. 2003).

Parr v. Ford Motor Co., 109 A.3d 682, 690 (Pa. Super. 2014) (en banc) 

(parallel citations omitted), appeal denied, 123 A.3d 331 (Pa. 2015), cert. 

denied, 136 S.Ct. 557 (2015).

The Commonwealth’s claims on appeal attack the trial court’s 

application of the corpus delecti rule. In Pennsylvania, “a confession is not 

evidence in the absence of proof of the corpus delicti. ... [W]hen the 

Commonwealth [proffers] sufficient evidence of the corpus delicti to entitle 

the case to go to the jury, it [may introduce] a confession made by the 

prisoner connecting him with the crime.” Commonwealth v. Taylor, 831 

A.2d 587, 590 (Pa. 2003), quoting Gray v. Commonwealth, 101 Pa. 380, 

386 (Pa. 1882). The rule is not limited to formal confessions; it extends to 

admissions and statements of the accused. See Commonwealth v. 

Smallwood, 442 A.2d 222, 225 (Pa. 1982).
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The corpus delicti rule begins with the proposition that a criminal 

conviction may not be based upon the extra-judicial confession 

of the accused unless it is corroborated by independent evidence 

establishing the corpus delicti. Commonwealth v. Ware, 329 

A.2d 258 (Pa. 1974). The corpus delicti, literally “the body of 

the crime,” is defined as a wrong committed by criminal means, 

and consists of the occurrence of a loss or injury, and some 

person's criminal conduct as the source of that loss or injury. 

Id. at 274. The criminal responsibility of a particular, 

identifiable person, e.g. the accused, is not a requirement of the 

rule. Commonwealth v. Elder, 451 A.2d 236, 237 (Pa. Super. 

1982). The purpose of the rule is to prevent the use of hasty 

and unguarded confessions to convict an individual when no 

crime has been committed. Commonwealth v. Fried, 555 A.2d 

119, 120 (Pa. Super. 1989), appeal denied, 564 A.2d 915 (Pa. 

1989).

Under Pennsylvania law, the application of the corpus delicti rule 

occurs in two distinct phases. The first phase involves the 

court's application of a rule of evidence governing the threshold 

question of the admissibility of the confession [or statement]. In 

this first phase of the rule's application, 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 

presented, it is more likely than not that a wrong has occurred 

through criminal agency, then the confession and/or admissions 

of the defendant are admissible. Commonwealth v. Tallon, 

387 A.2d 77 (Pa. 1978); Commonwealth v. Drexel, 503 A.2d 

27 (Pa. Super. 1986), appeal denied, 521 A.2d 931 (Pa. 1987).

The second phase of the rule's application occurs after a 

confession has already been admitted into evidence. After the 

court has made its initial determination that the Commonwealth 

has proved the corpus delicti by a preponderance of the evidence 

and has ruled the confession to be admissible, the corpus delicti

rule additionally requires that the Commonwealth prove to the 

jury's satisfaction beyond a reasonable doubt, the corpus delicti

of the crimes charged.

Commonwealth v. Ahlborn, 657 A.2d 518, 520-521 (Pa. Super. 1995), 

appeal denied, 688 A.2d 170 (Pa. 1997).
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In its first claim, the Commonwealth argues that the trial court inflated 

the applicable burden of proof, and thereby misapplied the corpus delecti

rule, in requiring the prosecution to demonstrate Merritt’s constructive 

possession of the shotgun beyond a reasonable doubt, instead of by a mere 

preponderance of the evidence. In advancing this claim, the Commonwealth 

relies on the record developed at the preliminary hearing, which showed that 

officers with the JPD recovered a loaded shotgun from underneath a couch 

on which Merritt, a convicted felon, was sitting. These facts, in the 

Commonwealth’s view, constitute a sufficient showing, for purposes of the 

corpus delecti rule, that Merritt had constructive possession of the firearm 

and that, as a result, his statement regarding the weapon was admissible. 

To further support its position, the Commonwealth asserts that it only 

needed to show that the firearm was possessed criminally to prove the 

corpus delecti for possession of a firearm by a prohibited person under 

§ 6105(a)(1). Here, the presence of the shotgun in a residence under 

surveillance by JPD, where 68 stamp bags of heroin were recovered, where 

three prior controlled drug buys were made, and where drug packaging 

materials were discarded, made clear that “the gun was possessed by people 

in the active distribution of heroin” and, hence, illegally held. 

Commonwealth’s Brief at 13.

To introduce Merritt’s statement consistent with the corpus delecti

rule, the Commonwealth must establish by a preponderance of evidence 
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(exclusive of Merritt’s admission that he touched the shotgun) that a 

criminal agency caused a violation of § 6105(a)(1). Section 6105(a)(1) 

provides, “[a] person who has been convicted of an [enumerated] offense ... 

shall not possess, use, control, sell, transfer or manufacture or obtain a 

license to possess, use, control, sell, transfer or manufacture a firearm in 

this Commonwealth.” 18 Pa.C.S.A. § 6105(a)(1). The elements of the 

offense proscribed by § 6105(a)(1) include proof that the defendant 

possessed a firearm and that he was convicted of an enumerated offense. 

Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa. Super. 2009), appeal 

denied, 4 A.3d 1054 (Pa. 2010). Neither Snyder nor Urbassik has 

disqualifying convictions that bar their possession of a firearm under 

§ 6105(a)(1). Moreover, no one disputes that Officer Kanuch’s testimony 

established that felony convictions in Merritt’s criminal history rendered him 

ineligible to possess a firearm. Consequently, we, like the trial court, shall 

confine our analysis to whether the Commonwealth proved Merritt’s 

possession of the shotgun by a preponderance of the evidence.4

Since Merritt was not in physical custody of the shotgun at the time of 

arrest, the Commonwealth needed to prove that he had constructive 

____________________________________________

4 The Commonwealth does not dispute that Merritt is the only individual in 

the present scenario whose possession of a firearm is precluded by 

§ 6105(a)(1). Therefore, his alleged unlawful possession is the only conduct 

that gives rise to the type of criminal agency-related “loss” required by the 

corpus delecti rule.
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possession of the weapon to satisfy the corpus delecti rule. In 

Commonwealth v. Murdick, 507 A.2d 1212 (Pa. 1986), our Supreme 

Court addressed the issue of constructive possession where contraband is 

recovered from an area accessible to more than one individual and 

potentially subject to the control of more than one person. In that case, the 

defendant, Murdick, answered the door when local officers and narcotics 

agents from the Attorney General’s office arrived to serve a New Jersey 

fugitive warrant on Murdick’s paramour, Sandra Dietz. Murdick directed the 

officers to the bedroom where Dietz was asleep. While some of the officers 

placed Dietz under arrest, Murdick explained that he lived with Dietz and 

that the couple planned to marry. He also stated that he owned one of the 

dogs at the home. During this time, officers observed suspected marijuana 

on the living room coffee table. Upon seeing the drugs in plain view, some 

of the officers left to obtain a search warrant. While waiting for their return, 

Murdick walked into the kitchen of the home and retrieved a beverage from 

the refrigerator. After the officers returned with the search warrant, they 

seized the marijuana from the living room coffee table and recovered 

cocaine from the bedroom and the study. Following his arrest, Murdick 

retrieved his clothing from the bedroom he shared with Dietz. A jury 

convicted Murdick of simple possession and possession of contraband with 

intent to distribute.
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On appeal, Murdick challenged the sufficiency of the evidence of 

constructive possession. This Court vacated Murdick’s conviction. Upon 

further review, the Supreme Court reinstated his judgments of sentence, 

explaining:

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. 

[The Supreme Court] ha[s] defined constructive possession as 

“conscious dominion.” Commonwealth v. Davis, 280 A.2d 

119, 121 (Pa. 1971). [The Supreme Court] subsequently 

defined “conscious dominion” as “the power to control the 

contraband and the intent to exercise that control.” 

Commonwealth v. Macolino, 469 A.2d 132, 134 (Pa. 1983). 

Though these tests may be helpful and logical in the abstract, 

application to actual factual situations, particularly when multiple 

actors are involved, has proven difficult for our lower courts in 

cases involving controlled substances located on premises in 

joint possession but not on the actual person of any of the 

parties entitled to occupy those premises.

To aid application, [our Supreme Court] ha[s] held that 

constructive possession may be established by the totality of the 

circumstances. Commonwealth v. Fortune, 318 A.2d 327 (Pa. 

1974). [Our Supreme Court] took a further step toward 

resolving these problems in Commonwealth v. Macolino, 

supra. In Macolino, contraband and otherwise legal items used 

in the drug trade were found in the common bedroom of the 

Macolinos, a married couple. [The Supreme Court] held that 

“constructive possession can be found in one defendant when 

both the husband and wife have equal access to an area where 

the illegal substance or contraband is found.” [Macolino,] 469 

A.2d at 135. See also Commonwealth v. Carroll, 507 A.2d 

819 (Pa. 1986).

Though the facts here do not precisely mirror those in Macolino, 

they are similar and the issue again concerns constructive 

possession in an area of joint control. [The Supreme Court held] 

that even absent a marital relationship constructive possession 

may be found in either or both actors if contraband is found in 
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an area of joint control and equal access. The marital 

relationship per se was not critical to the Macolino analysis; 

shared access to and control of the area where the contraband 

was found was critical.

Here there was evidence that [Murdick] lived in the residence 

and shared the bedroom with [] Dietz. From this evidence, the 

factfinder could find joint control over and equal access to the 

area where the cocaine was found, the bedroom. Given the 

totality of the circumstances, i.e., joint control and equal access 

and evidence that the cocaine was found in plain view, the jury 

could have found constructive possession. [Moreover, the joint 

control and access enjoyed by Murdick and Dietz in the bedroom 

extended to the living room and supported the jury’s finding that 

Murdick constructively possessed the marijuana recovered from 

the coffee table.]

Murdick, 507 A.2d at 1213-1214.

Murdick permits a finding of constructive possession when officers 

recover contraband from an area subject to joint access and control of 

multiple persons. Our review of the relevant case law confirms, however, 

that the decision in Murdick represents somewhat of a departure from 

conventional formulations of the constructive possession doctrine. 

Traditionally, constructive possession allows the prosecution to rely on proof 

of “conscious dominion” over an object rather than requiring evidence of 

direct physical control. As we noted above, courts define “conscious 

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

exercise that control.” Macolino, supra. The Court in Murdick, however, 

allowed evidence pertaining only to the defendant’s power to control the 

premises to support an inference that he had the power and intent to control 

the contraband and that he therefore exercised conscious dominion over the 
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drugs. In dissent, Justice Zappala picked up on this concept, noting that: 

“No evidence is cited, for none is present in the record, which is relevant to 

proving [Murdick’s] intent to control the contraband.” Murdick, 507 A.2d at 

1215 (Zappala, J., dissenting). More recently, this Court recognized the 

modified standard applied in Murdick, which appears to obviate the need to 

prove intent to exercise control over the contraband. See Commonwealth 

v. Koch, 39 A.3d 996, 1007 (Pa. Super. 2011).

Regardless of whether we apply the conventional test for constructive 

possession (requiring both power and intent to control contraband), or the 

modified formulation espoused in Murdick (inferring constructive possession 

from joint control and shared access of the premises), we discern no abuse 

of discretion in the trial court’s refusal to find constructive possession here. 

In contrast to the facts before the Supreme Court in Murdick, the record in 

this case contains no proof that Merritt lived in Snyder’s residence (or 

regularly shared accommodations there), possessed joint control of the 

premises, or harbored the intent to control the shotgun. The trial court 

made the following findings, which are supported by the record.

Here, the Commonwealth’s evidence establishes only that Merritt 

was present in the residence and seated on the couch under 

which the shotgun was found. [Officer] Kanuch testified that 

when he entered the residence he observed Merritt sitting on the 

couch with his hands raised, that Merritt made no movements, 

and was immediately taken to the ground and handcuffed. N.T., 

10/22/14, at 15-16. The Commonwealth has not established 

how long Merritt was staying in the house, i.e. was he an 

overnight guest or there on a long term basis, the only evidence 

offered in this regard was [Officer] Kanuch’s statement that the 
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officers had information that a black male had been staying in 

the house for a couple of weeks. Id. This evidence is 

insufficient to establish that Merritt was the [individual] alleged 

to be staying there, particularly in light of [Officer Kanuch’s] 

testimony that during the periods of surveillance leading up to 

July 31st[, Merritt] was not observed at the house.

Further, the evidence presented does not establish that Merritt 

had any right of joint control over the house or its contents. 

[Officer Kanuch did not know whether Merritt stored clothing or 

other personal items in the household.] The house is in Snyder’s 

name, as is the shotgun, and there was no evidence presented 

that Merritt was anything other than a guest with no rights to 

control Snyder’s property. In total[,] the Commonwealth’s 

evidence has failed to show that Merritt had the right of joint 

access and control over either the shotgun or the house.

Trial Court Opinion, 7/29/15, at 11-12. 

We agree with the trial court that Merritt’s mere presence in Snyder’s 

residence in close proximity to the shotgun is legally insufficient to show 

constructive possession by a preponderance of the evidence. See 

Commonwealth v. Valette, 613 A.2d 548, 551 (Pa. 1992) (mere presence 

in apartment where drugs are found does not demonstrate constructive 

possession); Koch, 39 A.3d at 1007 (constructive possession of contraband 

recovered from shared spaces and common areas of home requires proof of 

both power and intent to control contraband). Because the Commonwealth 

presented no evidence showing that Merritt regularly stayed at Snyder’s 

residence or enjoyed joint control over the house or its contents, there is 

insufficient support for the Commonwealth’s claim that the trial court 

improperly applied a higher burden of proof for establishing constructive 

possession.
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We also reject the Commonwealth’s supplemental position that the 

shotgun was possessed “criminally” because police recovered it from a house 

occupied by individuals involved in the distribution of narcotics. In this case, 

the Commonwealth filed a single firearms charge under § 6105(a)(1) against 

Merritt, presumably because he was the only individual at the scene who 

was subject to prosecution under that statute. No firearms-related offenses 

were filed against either Snyder or Urbassik because they were not ineligible 

to possess a firearm under § 6105(a)(1). Hence, our corpus delecti analysis 

necessarily focuses on whether the Commonwealth proved, by a 

preponderance of the evidence, a loss or a wrong resulting from Merritt’s 

alleged criminal violation of § 6105(a)(1). We cannot abandon this 

traditional approach to legal analysis simply because a criminal episode 

occurred at a location known for drug-related activity. See 

Commonwealth v. Grahame, 7 A.3d 810, 815-816 (Pa. 2010) (rejecting 

preconceived, generalized justifications such as “guns follow drugs” offered 

in support of protective searches and permitting such measures only where 

officers articulate facts establishing individualized, objective grounds for 

perceiving threats of armed violence).

The Commonwealth’s second claim asserts that the trial court erred in 

requiring the prosecution to link Merritt to the criminal loss. This contention 

is meritless. As we stated above, the trial court needed to determine 

whether the Commonwealth proved the corpus delicti of an offense under 
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§ 6105(a)(1) by a preponderance of the evidence. This assessment required 

the trial court to consider whether some individual with a disqualifying 

conviction possessed a firearm in violation of § 6105(a)(1). Snyder and 

Urbassik could not be prosecuted under § 6105(a)(1), as neither of them 

had disqualifying convictions. No charge against them under § 6105(a)(1) 

could get to a jury. Logically, this confined the court’s consideration to 

Merritt since he is the only individual in this case subject to prosecution 

under § 6105(a)(1). Because the nature of the charged offense limited the 

trial court’s analysis to whether a viable charge was filed against Merritt, the 

trial court did not err in its application of the corpus delecti rule.

Order granting motion in limine affirmed. Case remanded. 

Jurisdiction relinquished.

Shogan, J. joins this memorandum.

Strassburger, J. files a dissenting statement.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/29/2016