Com. v. Ishler, G., Jr. ( 2020 )

J. A20010/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
GEORGE GENE ISHLER JR., : No. 842 MDA 2018
:
Appellant :
Appeal from the Judgment of Sentence Entered April 23, 2018,
in the Court of Common Pleas of Centre County
Criminal Division at Nos. CP-14-CR-0001383-2016,
CP-14-CR-0001384-2016
BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 06, 2020
George Gene Ishler, Jr., appeals from the April 23, 2018 aggregate
judgment of sentence of life imprisonment without the possibility of parole,
imposed after a jury found him guilty of first-degree murder, criminal
conspiracy, tampering with or fabricating physical evidence, and unsworn
falsification to authorities.1 After careful review, we affirm the judgment of
sentence.
On September 22, 2016, appellant and co-defendant Danelle Rae Geier,
his half-niece,2 were charged with first-degree murder and related offenses in
connection with the death of Pennsylvania State University Professor
1 18 Pa.C.S.A. §§ 2502(a), 903, 4910(2), and 4904(a)(1), respectively.
2 The record reflects that Geier is the daughter of appellant’s half-sister.
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Ronald V. Bettig (“the victim”), whose body was discovered on the floor of a
quarry pit in Centre County, Pennsylvania on August 17, 2016. Appellant
confessed to the Pennsylvania State Police that he conspired with Geier to
push the victim off the quarry wall and stage the scene to make it look like it
had been an accident or suicide. The Commonwealth gave notice of its
intention to consolidate appellant’s case with Geier’s case on September 22,
2016.
The trial court summarized the remaining procedural history of this case
as follows:
[Appellant] filed an omnibus pre-trial motion[,] which
included a motion to sever and a motion to suppress
on November 11, 2016. The court denied the motion
to sever by order dated March 23, 2017, and the
motion to suppress by opinion and order dated May
18, 2017. [Appellant] filed a motion in limine seeking
to exclude testimony regarding a sexual relationship
between [appellant] and [Geier] on September 29,
2017, which was granted on April 10, 2018. A jury
trial was held April 16, 2018 through April 23, 2018,
at the conclusion of which a jury returned a verdict of
guilty on all charges for both defendants. Both
[appellant] and [Geier] were immediately sentenced
to life in prison without the possibility of parole.
At trial, the Commonwealth introduced text messages
between [appellant] and [Geier] where they
repeatedly stated they loved one another, and the
Commonwealth asked [appellant] if he ever engaged
in sexual relations with [Geier]. [Geier] testified at
trial that she was unaware of any plan by [appellant]
to kill the victim, and that when she learned
[appellant] killed the victim, she did not report it to
the police because [appellant] allegedly raped her and
threatened her to keep quiet.
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Trial court opinion, 10/3/18 at 2 (extraneous capitalization omitted; emphasis
added).
Following the imposition of sentence, appellant filed a timely notice of
appeal. On May 29, 2018, the trial court directed appellant to file a concise
statement of errors complained of on appeal, in accordance with Rule 1925(b),
within 21 days. Appellant filed his Rule 1925(b) statement on September 24,
2018, and the trial court filed its Rule 1925(a) opinion on October 3, 2018.
Appellant raises the following issues for our review:
I. Whether the [trial] court erred in denying
[a]ppellant’s motion to sever when the defenses
were clearly antagonistic?
II. Whether the [suppression] court erred in
denying [appellant’s] motion to suppress his
statements?
III. Whether the [trial] court erred in allowing the
Commonwealth to introduce statements
regarding [a]ppellant’s sexual comments to
[Geier’s] sister (confusing her for [Geier])
despite the [trial] court’s pre-trial ruling to the
contrary?
Appellant’s brief at 5 (extraneous capitalization omitted).
Preliminarily, we must address the timeliness of appellant’s
Rule 1925(b) statement, which was filed long after the expiration of the
21-day filing period. The record contains no indication that appellant sought,
or that the trial court granted, an extension of time for filing. However, the
trial court accepted appellant’s untimely Rule 1925(b) statement and
subsequently filed its Rule 1925(a) opinion on October 3, 2018, addressing
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the merits of appellant’s three claims therein. (See trial court opinion,
10/3/18 at 2-5.) Accordingly, we may consider the merits of appellant’s three
claims on appeal. See Commonwealth v. Burton, 973 A.2d 428, 432-433
(Pa.Super. 2009) (holding that, while the untimely filing of a Rule 1925(b)
statement is per se ineffectiveness of counsel, this court may decide the
appeal on its merits if the trial court had an opportunity to prepare its
Rule 1925(a) opinion once the untimely Rule 1925(b) statement was filed).
Appellant first argues that the trial court erred by denying his pre-trial
motion to sever his case from that of Geier, on the basis that their respective
defenses were “clearly antagonistic.” (Appellant’s brief at 9.) We disagree.
“A motion for severance is addressed to the sound discretion of the trial
court, and . . . its decision will not be disturbed absent a manifest abuse of
discretion.” Commonwealth v. Dozzo, 991 A.2d 898, 901 (Pa.Super. 2010)
(citation omitted), appeal denied, 5 A.3d 818 (Pa. 2010). Pennsylvania Rule
of Criminal Procedure 583 governs the severance of offenses and provides
that the trial court “may order separate trials of offenses or defendants, or
provide other appropriate relief, if it appears that any party may be prejudiced
by offenses or defendants being tried together.” Pa.R.Crim.P. 583. Our
supreme court has formulated the following three-part test for deciding the
merits of a motion to sever:
[1] whether the evidence of each of the offenses
would be admissible in a separate trial for the other;
[2] whether such evidence is capable of separation by
the jury so as to avoid danger of confusion; and, if the
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answers to these inquiries are in the affirmative,
[3] whether the defendant will be unduly prejudiced
by the consolidation of offenses.
Commonwealth v. Melvin, 103 A.3d 1, 29 (Pa. 2014) (citations omitted;
brackets in original).
Upon review, we discern no abuse of discretion on the part of the trial
court in denying appellant’s motion to sever, as the record establishes that
appellant failed to satisfy the three-part test set forth in Melvin. Notably,
both appellant and Geier were charged as co-conspirators in the victim’s
murder, and it is well settled that “[w]hen conspiracy is charged, a joint trial
generally is advisable.” Commonwealth v. Brown, 925 A.2d 147, 161 (Pa.
2007) (citation omitted). Additionally, the evidence in this matter was clearly
“capable of separation by the jury so as to avoid danger of confusion,” Melvin,
103 A.3d at 29, as both defendants had previously confessed to their
involvement in the victim’s murder; their confessions were admitted at trial;
and the jury was instructed multiple times that each defendant’s statement
was to be used only against the individual who made it. (See notes of
testimony, 4/16/18 at 138; 4/17/18 at 82, 89; see also Pennsylvania
Suggested Standard Jury Instructions 3.12.) Moreover, the mere fact that
there was hostility between the co-defendants’ defenses at trial and that they
presented conflicting versions as to what transpired on the date of the victim’s
death does not amount to “undue prejudice” warranting separate trials.
Melvin, 103 A.3d at 29. On the contrary, “the fact that defendants have
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conflicting versions of what took place, or the extents to which they
participated in it, is a reason for rather than against a joint trial because the
truth may be more easily determined if all are tried together.”
Commonwealth v. Housman, 986 A.2d 822, 833 (Pa. 2009) (citation,
internal quotation marks, and parentheticals omitted), cert. denied, 562 U.S.
881 (2010). Based on the foregoing, we discern no abuse of discretion on the
part of the trial court in denying appellant’s motion for severance.
Appellant next argues that the suppression court erred in denying his
motion to suppress the confession he gave to police on the basis that it was
obtained in violation of Miranda3 and was “made under duress, coercion, or
with non-unfulfilled promises by law enforcement.” (Appellant’s brief at
12-16.)
Our standard of review when addressing a challenge to a trial court’s
denial of a suppression motion is well settled.
[An appellate court’s] standard of review in
addressing a challenge to the denial of a suppression
motion is limited to determining whether the
suppression court’s factual findings are supported by
the record and whether the legal conclusions drawn
from those facts are correct. Because the
Commonwealth prevailed before the suppression
court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the
defense as remains uncontradicted when read in the
context of the record as a whole. Where the
suppression court’s factual findings are supported by
the record, [the appellate court is] bound by [those]
3 Miranda v. Arizona, 384 U.S. 436 (1966).
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findings and may reverse only if the court’s legal
conclusions are erroneous.
Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation
omitted; brackets in original), appeal denied, 135 A.3d 584 (Pa. 2016).
Regarding the voluntariness of a confession,
[i]t is well-established that when a defendant alleges
that his confession was involuntary, the inquiry
becomes not whether the defendant would have
confessed without interrogation, but whether the
interrogation was so manipulative or coercive that it
deprived the defendant of his ability to make a free
and unconstrained decision to confess. Voluntariness
is the touchstone inquiry when deciding a motion to
suppress a confession, and voluntariness is
determined upon review of the totality of the
circumstances. In assessing the totality of the
circumstances, the suppression court should consider:
the duration and means of the interrogation; the
defendant’s physical and psychological state; the
conditions attendant to the detention; the attitude
exhibited by the police during the interrogation; and
all other factors that could drain a person's ability to
resist suggestion and coercion.
Commonwealth v. Fitzpatrick, 181 A.3d 368, 373-374 (Pa.Super. 2018)
(citations and internal quotation marks omitted), appeal denied, 191 A.3d
740 (Pa. 2018).
Additional relevant factors include the following:
the accused’s age and level of education and
experience; his extent of previous experience with the
police; whether the accused was advised of his
constitutional rights; whether he was injured, ill,
drugged, or intoxicated when he confessed; whether
he was deprived of food, sleep or medical attention,
and whether he was abused or threatened with abuse.
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Commonwealth v. Yandamuri, 159 A.3d 503, 525 (Pa. 2017) (citation
omitted).
Instantly, the suppression court authored a comprehensive and
well-reasoned opinion in support of its May 18, 2017 order denying appellant’s
omnibus motion to suppress. Upon review, we find that the suppression
court’s factual findings are supported by the record and the legal conclusions
drawn from those facts were correct. See Jones, 121 A.3d at 526; see also
suppression court opinion, 5/18/17 at 1-5.) Specifically, the record supports
the suppression court’s determination that appellant was properly advised of
his Miranda warnings prior to giving a statement to Pennsylvania State Police
Trooper Brian Wakefield. (See suppression court opinion, 5/18/17 at 5-6.)
Contrary to appellant’s contention, the totality of the circumstances further
supports the suppression court’s conclusion that a renewal of these warnings
following cigarette breaks was unwarranted. The suppression court found:
[T]he smoke breaks were held just outside where the
original Miranda warnings were given, the Officers
were the same, and the subject matter was not
substantially different from the topic when the original
warnings were given. The time from the initial
Miranda warnings to [appellant’s] recorded
statement was under four hours.
Id. at 6.
We further conclude that the record supports the suppression court’s
determination that “the totality of the circumstances demonstrates [that
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appellant’s] decision to confess was voluntary.” (Id. at 7.) As the suppression
court properly found,
[t]he interview was not lengthy prior to the
confessions, ample breaks were given, and
[appellant] was not prevented from leaving.
[Appellant] was not handcuffed, was in an unlocked
room with the Officers who were in plainclothes and
not brandishing weapons or threatening [appellant] in
any way. The Officers were friendly with [appellant],
going on smoke breaks with him, and conversed with
him casually. [Appellant] was not denied food, sleep,
or medication. The only factor that would negate the
voluntariness of the confession would be if the Officers
made [appellant] a promise they did not intend to
keep in order to induce him into confessing.
....
. . . . Here, [Detective Chris] Weaver told [appellant]
he would see what he could do about letting
[appellant] see his “old lady” one more time, and
advised [appellant] the police may be able to have a
controlled meeting with [appellant’s] girlfriend at the
barracks. [Appellant] even stated that they will not
let him and Weaver advised it was unlikely but said he
would check with his supervisor. [Appellant] still
proceeded to confess knowing it was unlikely he’d get
to see his girlfriend one more time. Weaver testified
he never affirmatively promised [appellant] anything.
Wakefield testified that when [appellant] and Weaver
returned from the final smoke break, [appellant] said
he wanted to come clean but was hoping to see his
girlfriend one more night. Wakefield did not promise
him that he could see his girlfriend for one more night
but only told him he could not make that decision.
After [appellant] confessed, he did not ask to see or
speak to his girlfriend.
Id.
Based on the foregoing, appellant’s second claim of error must fail.
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In his final claim, appellant argues that the trial court abused its
discretion in permitting the Commonwealth to introduce text messages
between appellant and Geier wherein appellant made “sexual comments to
[Geier’s] sister (confusing her for [Geier]),” given that the trial court had
previously granted appellant’s motion in limine to exclude any testimony
evidencing an alleged sexual relationship between the parties. (Appellant’s
brief at 17.) Appellant’s entire argument on this issue consists of a single
paragraph devoid of citation to any legal authority nor the pertinent notes of
testimony. “[W]here an appellate brief fails to provide any discussion of a
claim with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review, that claim is waived.”
Commonwealth v. Rahman, 75 A.3d 497, 504 (Pa.Super. 2013) (citation
omitted). Accordingly, we find that appellant has waived this claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/06/2020
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