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

v.

ELIO KEITH TORRES

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

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.: F ILED: MARCH 30, 2020 Elio Keith Torres a ppeals 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 reco rd, 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 off icer 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 spentJ

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shell casing, and a live round of ammunition

. Subsequent DNA test ing 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 dischar ging 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 clos e in proximity to where the
po lice 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 o f 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. Ulti mately, the jury found Torres guilty. After sentencing, Torres filed a timely pro se notice of appeal, an d thereafter, the court appointed counsel to represent him in this appeal. TheJ

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appeal is now properly before us as both the trial court and Torres ha ve 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 Commonwe alth’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 tria l 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
i n reviewing a challenge to the trial court's refusal to give a specifi c jury instruction, it is the function of this [C]ourt to determine whether the record suppo rts 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 tri al court committed a clear abuse of discreti on 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 c larify, 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 jur y 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.J

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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]ppellan t was prejudiced by that refusal.” Commonwealth v. Thomas , 904 A.2d 964, 970 (Pa. Super. 2006). In his brief, Torres bifurcates his argument s in support of his proposed jury instructions by first discussing the applicability of corpus delicti

. Then, he di scuss es 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 cr ime 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
instruction s . It is beyond cav il that, in this Commonwealth, a confession is not evi dence 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 cr ime.J

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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).
T he 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 crimi nal agency. Only then can the Commonwealth ... rely upon statements a nd 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 wh ether 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 demonstra ted through circumstantial evidence. See Commonwealth v. Reyes , 681 A.2d 724, 727 (Pa. 1996).J

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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 jus t 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 lea st 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 determi nation 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 allow ed for the admissi on 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

. S ee 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 aJ

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reasonable doubt, the jury may co nsider 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 To rres 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 preponderan ce of the evidence that a crime, in fact, occurred, e.g., a person prohibited from possessing a firearm in fac t 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 posse ssion 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

_________________ __________ ______ ____ _______ 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.J

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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 t hat 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 prop er 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, ther efore, 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, w e are satisfied that there was overwhelming evidence to support the jury’s conclusion that theJ

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Com monwealth 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 o ffers approximately four sentences in his brief to support his in voluntariness 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 cou ld have been reasonably likely to bring out an admission.

_________________ __________ ______ ____ _______ 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 t o, 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 i s not inherently important as we find there to be sufficient evidence for the jury to adjudicate guilt beyond a reasonable doubt.J

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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 t he 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 de velopment”)

. 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 ca se “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. Howeve r, a fter theJ

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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 instructio ns related to the volunt ariness 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, Tor res 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 conside r 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 su ggested by Torres, those instructions would not have been supported by the re cord and resultantly only would have confuse d 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: 0 3/30/2020