Com. v. Geier, D. ( 2020 )

J. A20011/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DANELLE RAE GEIER, : No. 1438 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 No. CP-14-CR-0001369-2016
BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 06, 2020
Danelle Rae Geier appeals from the April 23, 2018 aggregate judgment
of sentence of life imprisonment without the possibility of parole, imposed
after a jury found her guilty of first-degree murder, criminal conspiracy, and
tampering with or fabricating physical evidence.1 After careful review, we
affirm the judgment of sentence.
The relevant facts and procedural history of this case, as gleaned from
the certified record, are as follows: On September 22, 2016, appellant and
co-defendant, George Gene Ishler, Jr.,2 were charged with first-degree murder
and related offenses in connection with the death of Pennsylvania State
1 18 Pa.C.S.A. §§ 2502(a), 903, and 4910(2), respectively.
2 Ishler is the half-brother of appellant’s mother.
J. A20011/19
University Professor Ronald V. Bettig (“the victim”), whose body was
discovered on the floor of a quarry pit in Centre County, Pennsylvania on
August 17, 2016. Both appellant and Ishler gave statements to the
Pennsylvania State Police wherein they confessed to entering a conspiracy to
murder the victim and make it look like it had been an accident or a suicide.
The Commonwealth gave notice of its intention to consolidate appellant’s case
with Ishler’s case on September 22, 2016.
On October 27, 2016, appellant filed an omnibus pretrial motion to,
inter alia, sever her case from that of Ishler. The trial court denied
appellant’s motion on December 29, 2016. Following a joint, six-day jury trial,
a jury found appellant guilty of the aforementioned charges on April 23, 2018.
That same day, the trial court sentenced appellant to life imprisonment
without the possibility of parole. Appellant filed a timely post-sentence motion
on May 3, 2018, and a supplemental post-sentence motion on June 11, 2018.
Following hearings, the trial court denied appellant’s post-sentence motions
on August 6, 2018. This timely appeal followed.3
Appellant raises the following issues for our review:
A. Did the trial court abuse its discretion and
unconstitutionally deny [appellant’s] due
3 The record reflects that on August 29, 2018, the trial court directed appellant
to file a concise statement of errors complained of on appeal, in accordance
with Pa.R.A.P. 1925(b), within 21 days. Appellant filed her timely
Rule 1925(b) statement on September 10, 2018, and the trial court filed a
brief Rule 1925(a) opinion on September 24, 2018, indicating that it was
relying on the reasoning set forth in its prior August 6, 2018 opinion denying
appellant’s post-sentence motions.
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process rights to a fair trial and right to present
a defense when it summarily denied her request
to present the testimony of Jonathan E. Stube,
Ph.D., LPC, and Michael C. Wolff, Ph.D., CADC,
from the Penn State Psych Clinic, challenging
the voluntariness of her statements and the
voluntariness of her actions?
B. Did the trial court abuse its discretion when it
refused to sever a case where the defendants
had such clearly antagonistic defenses that the
opening cross[-]examination question of
[appellant] by her co-defendant’s counsel was:
“You are a lying, manipulative woman who
would say and do anything to get whatever you
want?”
C. Did the trial court err when it failed to order a
new trial after the Commonwealth failed to
disclose prior to trial that one of its key
witnesses, Joel Allen Marlow, had pending
criminal charges in Centre County?
Appellant’s brief at 5-6 (extraneous capitalization omitted).
Preliminarily, we recognize that
a court has the discretion to require an expert, who
has conducted an examination or test for a defendant
but who has not completed a report for the defendant,
to prepare (and the defendant to disclose) a report,
which must provide, among other things, the subject
matter on which the expert is expected to testify and
a summary of the expert's opinion. A court’s
discretion to order the production of such a report is,
again, dependent upon whether the defendant intends
on calling the expert as a witness in the criminal
proceedings. When the defendant fails to comply with
a trial court’s order requiring preparation and
disclosure of an expert report, the trial court may
sanction the defendant by prohibiting the defendant
from introducing evidence not disclosed, other than
testimony of the defendant.
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Commonwealth v. Radecki, 180 A.3d 441, 452 (Pa.Super. 2018) (citations,
internal quotation marks, and footnote omitted).
Likewise, “[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).
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
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).
Lastly, we note that
after-discovered evidence is the basis for a new trial
when it: 1) has been discovered after the trial and
could not have been obtained at or prior to the
conclusion of trial by the exercise of reasonable
diligence; 2) is not merely corroborative or
cumulative; 3) will not be used solely for impeaching
the credibility of a witness; and 4) is of such nature
and character that a new verdict will likely result if a
new trial is granted.
Commonwealth v. Chamberlain, 30 A.3d 381, 414 (Pa. 2011) (citations
and internal quotation marks omitted), cert. denied, 566 U.S. 986 (2012).
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With these principles in mind, we note that the trial court authored a
comprehensive and well-reasoned opinion that properly addresses and
disposes of appellant’s three claims. Specifically, we agree that the trial court
properly exercised its discretion in precluding the introduction of the proposed
testimony of Dr. Wolfe and Dr. Stube immediately prior to the start of trial,
pursuant to Pa.R.Crim.P. 573(E). As recognized by the trial court, the defense
sought to introduce these witnesses as fact witnesses to testify regarding
appellant’s mental state, when clearly their testimony constituted untimely
expert testimony. (See trial court opinion, 8/6/18 at 3-4.) We further agree
with the trial court that appellant was not prejudiced by the trial court’s
decision to deny her motion to sever, as the record establishes that appellant
failed to satisfy the three-part test set forth in Melvin. Notably, the evidence
in this matter was clearly “capable of separation by the jury so as to avoid
danger of confusion,” as both defendants were charged with criminal
conspiracy and had previously confessed to the victim’s murder, and the
confessions were admitted at trial. (Id. at 2-3; see also Melvin, 103 A.3d
at 29.) Additionally, we agree that appellant is not entitled to a new trial on
account of the fact that she was not informed of the pending criminal charges
against Commonwealth witness Marlow, as appellant failed to satisfy the third
prong of the “after discovered evidence” test and “the only evidentiary value
of [the] charges against Marlow [was] to impeach his credibility.” (Id. at 4-5.)
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Accordingly, we adopt the pertinent portions of the trial court’s well-reasoned
August 6, 2018 opinion as our own and affirm on that basis.
Judgment of sentence affirmed.
Gantman, P.J.E. joins this Memorandum.
McLaughlin, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/06/2020
-6-
Circulated 12/10/2019 12:31 PM
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IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
v. No. CP-14-CR-1369-2016
DANELLE RAE GEIER,
Defendant
Attorney for the Commonwealth: Bernard F. Cantorna, Esq.
Attorney for Defendant: Deborah Lux, Esq.
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OPINION and ORDER
Ruest, J.
Presently before the Court is a Post-Sentence Motion filed by Danelle Rae: · q��r :x
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(Defendant) on May 3, 2018 and a Supplemental Post-Sentence Motion filed on :dlme 11, '.291 £f5
A hearing was held on May 8, 2018 regarding the Post-Sentence Motion, and on July 30, 2018
regarding the Supplemental Post-Sentence Motion. Defendant alleges errors occurred prior to
and during trial and requests either an arrest of judgment or a new trial. Upon consideration of
Defendant's Motions and arguments of counsel, the Court rules as follows:
Background
Defendant was charged with Murder of the First Degree, 18 Pa.C.S.A. §2502(a); Murder
of the Third Degree, 18 Pa.C.S.A. §2502(c); Aggravated Assault, 18 Pa.C.S.A. §2702(a)(1);
Tampering with or Fabricating Evidence, 18 Pa.C.S.A. §4910(2); and Criminal Conspiracy
(Murder of the First Degree), 18 Pa.C.S.A. §903(a)(1). The charges stemmed from the murder
of Ronald V. Bettig on August 13, 2016. Defendant's case was consolidated with that of George
Gene lshler, Jr.(lshler), her co-conspirator, on September 22, 2016. The Commonwealth no/
prossed the Aggravated Assault charges.
Defendant filed an Omnibus Pre-Trial Motion on October 27, 2016 which included a
Motion to Sever. The Court ruled on December 29, 2016 denying the Motion to Sever. A jury
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, . I
trial was held April 16, 2018 through April 23, 2018. Defendant was found Guilty of all charges,
and immediately sentenced to imprisonment for the remainder of her natural life without
eligibility for parole. Defendant timely filed a post-sentence motion.
Discussion
Defendant alleges the Court erred by denying a Motion to Sever and not permitting
testimony by two defense witnesses. Defendant also alleges she was prejudiced when she was
not informed of pending criminal charges of a prosecution witness prior to trial. Post-Sentence
Motions shall be filed no later than 10 days after imposition of sentence. Pa.R.Crim.P.
720(A)(1). A Post-Sentence Motion may request an arrest of judgment or a motion for a new
trial. Pa.R.Crim.P. 720(B)(1)(a). The Court will address each motion in turn.
I. Motion to Sever
Defendant argues the Court erred in denying Defendant's Motion to Sever because she
was prejudiced when confl!cting defenses were presented at trial. Consolidation of trial is within
the discretion of the trial court and is only an abuse of discretion if there is prejudice and clear
injustice against the defendant. Commonwealth v. Melvin, 2014 PA Super. 181, 103 A.3d 1,
28.
Severance is governed by Pa.R.Crlm.P. Rule 583, which states: "the court may
order separate trials ... of defendants, ... if it appears any party may be prejudiced by ...
defendants being tried together." The Supreme Court has promulgated a three part test for
ruling on 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 answers to these inquiries are in
the affirmative,
3. Whether the defendant will be unduly prejudiced by the consolidation
of offenses.
Commonwealth v. Melvin, supra at 29 (citing Commonwealth v. Col/Ins, 550 Pa. 46, 703
A.2d 418, 422 (1997)),(citing Commonwealth v. Lark, 518 Pa. 290, 302, 543 A.2d 491, 496-97
2
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(1988)). When conspiracy is a charge, a joint trial is advisable, and severance should only be
granted when the defenses are so antagonistic they are irreconcilable, that is when the jury
would be forced to disbelieve a defendant's testimony in order to believe the co-defendant's
testimony. Commonwealth v. Brown, 592 Pa. 376, 925 A.2d 147, 161-62 (2007). A defendant
claiming error has the burden of demonstrating actual, not speculative, prejudice because of a
joint trial. Id.
Here, Defendant argues the Court improperly denied the Motion to Sever because the
antagonistic defenses presented at trial actually prejudiced Defendant. lshler's testimony at trial
did not blame Defendant for the victim's death. I shier testified the victim committed suicide and
neither defendant was responsible for his death. Defendant presented a defense blaming lshler
for the murder, saying he planned everything and coerced her into covering up their actions.
Their defenses are not so antagonistic they are irreconcilable.
II. Refusing to permit the testimony of Michael C. Wolff Ph.D., CADC and Jonathan E.
Stube, Ph.D. from the Pennsylvania State University Psychological Clinic
Defendant argues the Court erred by refusing to permit the testimony of Michael C.
Wolff, Ph.D., CADC and Jonathan E. Stube, Ph.D. from the Pennsylvania State University
Psychological Clinic. Defendant sought to introduce these witnesses as fact witnesses to testify
regarding Defendant's mental state, especially her ability to be victimized and manipulated
within the prison population. The Commonwealth objected to the introduction of these
witnesses as inappropriate and untimely expert testimony, and there was insufficient time for the
Commonwealth to review the reports.
A witness may be qualified to testify as to an expert opinion based on knowledge, skill,
experience, training, or education if the witness's scientific, technical, or other specialized
knowledge is beyond that of the average layperson and would help the trier of fact understand
evidence or determine a fact in issue. Pa.RE. 702. If the Defendant intends to call an expert
witness in a criminal trial, and the expert has not prepared a report, the court may order the
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production of a report and require disclosure of the subject matter, facts, and expert opinion on
which the expert is expected to testify. Pa.R.Crim.P. 573(C)(2). The court may prohibit the
introduction of evidence not disclosed in a timely manner if deemed just under the
circumstances. Pa.R.Crim.P. 573(E).
The testimony Defendant sought to elicit from these two witnesses was clearly within the
realm of expert testimony. They would be unable to testify without using their specialized
knowledge which is beyond what an average layperson possesses, and the testimony would be
used to testify to Defendant's mental capacity, not any fact specific to the case. The testimony
clearly was expert testimony, and no expert report was produced prior to the start of trial. The
Court properly exercised its discretion in prohibiting the introduction of the proposed testimony.
Ill. Pending Criminal Charges of a Prosecution Witness
Defendant argues a new trial is proper because Defendant was not informed a
Commonwealth witness, Joel Allen Marlow (Marlow) was criminally charged with Possession of
Drug Paraphernalia, 35 Pa.C.S.A. §780-113(a)(32); Operation Following Suspension of
Registration, 75 Pa.C.S.A. §1371(a); and Driving Under Suspension, 75 Pa.C.S.A. §1543(a),
one month prior to trial. At trial, Marlow was questioned by Defendant regarding his extensive
prior criminal history, but the new charges were not mentioned. Defendant argues the
Commonwealth should have known about the charges and informed her prior to trial because
the arresting officer was assigned to the same barracks as the affiant in the case.
The grant of a new trial on the basis of newly discovered evidence requires satisfying a
four-prong test of whether the evidence: (1) could not have been obtained with reasonable
diligence prior to trial; (2) is not corroborative or cumulative; (3) is not used solely to impeach a
witness's credibility; and (4) likely would result in a different verdict. Commonwealth v. Castro,
625 Pa. 582, 93 A.3d 818, 821 (2014). Defendant is unable to satisfy the third prong, as the
only evidentiary value of the recent criminal charges against Marlow is to impeach his credibility.
Additionally, the state trooper Defendant asserts worked with the state trooper who criminally
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charged Marlow is no longer employed there, as he took a job with a different department prior
to the charges being filed. As such, there is insufficient evidence to warrant a new trial.
The following order Is hereby entered:
ORDER
AND NOW, this 6th day of August, 2018, Defendant's Post-Sentence Motion and
Supplemental Post-Sentence Motion are hereby DENIED.
BY THE COURT:
{Jn1uG0- C · �
amela A Ruest, President Judge
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