Com. v. Gearhart, C. ( 2020 )

J-A12037-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
COLIN PATRICK GEARHART :
:
Appellant : No. 1555 WDA 2019
Appeal from the Judgment of Sentence Entered June 10, 2019,
in the Court of Common Pleas of Westmoreland County,
Criminal Division at No(s): CP-65-CR-0000957-2016.
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED SEPTEMBER 22, 2020
Colin Patrick Gearhart appeals from the judgment of sentence imposed
following his conviction of third-degree murder and related offenses. We
affirm.
Gearhart was involved in a scheme to rob an acquaintance which
resulted in the death of Daniel McNerney (hereinafter “Victim”). Gearhart,
who was seventeen years old at the time of the shooting, was arrested and
charged with second-degree and third-degree murder, robbery and
conspiracy.1 Gearhart filed a pre-trial motion to suppress recorded statements
he made to police during their initial investigation. Following a suppression
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. §§ 2502(b), (c); 301(a)(1)(i); 903(a)(1).
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hearing, the trial court denied the motion. The matter proceeded to a jury
trial. The trial court detailed the evidence presented at trial as follows:
Remington Johnson (hereinafter “Johnson”) and Christopher
Showers (hereinafter “Showers”) planned to travel from
Pennsylvania to Colorado for about one (1) week. On January 19,
2016, Johnson picked-up Showers in Wexford, Pennsylvania.
Prior to leaving for Colorado, Showers directed Johnson to drive
to two (2) locations so that he could obtain money from friends.
They first travelled to a trailer park in New Derry, Pennsylvania,
and Showers borrowed about $2,000 from a friend. Showers
placed this money inside of a bag located in the trunk of the
vehicle, which also contained about $10,000 to $12,000.
Showers and Johnson subsequently drove to [Gearhart’s]
residence located at 409 St. Clair Street in Latrobe, Pennsylvania.
Showers intended to go to [Gearhart’s] residence to retrieve
money from [Gearhart] and sell cocaine to [Victim]. [Gearhart]
called Showers multiple times that night to see if he was coming
over. [Gearhart] told Showers to stop over, that he knew he was
going to Colorado, and he had money for Showers. Showers and
Johnson arrived at [Gearhart’s] residence at around 11:00 p.m.
and Johnson parked his vehicle on the street near the front of the
house.
Showers and Johnson entered the residence and observed
[Gearhart], Victim, and Austin Krinock (hereinafter “Krinock”).
Showers wore a drawstring gym bag into the house and he
generally brought a bag with him to carry money. Johnson
testified that the individuals were having a “boys night” and
drinking out of red Solo cups. Showers also testified that the
individuals were “hanging out” and smoking and drinking.
Showers received $300 from [Gearhart] and $80 from Victim and
he placed this money inside of his pocket. Showers introduced
Johnson to the individuals and discussed their trip to Colorado with
them.
After about thirty (30) to forty-five (45) minutes, Showers
and Johnson left the residence and walked back to Johnson’s
vehicle. Showers placed his drawstring back inside of the trunk,
which also contained two (2) duffle bags. As they prepared to
leave for Colorado, Johnson glanced over his right shoulder and
saw a man dressed in dark clothing coming from the bushes on
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the side of the house. Johnson testified that the man wore a dark
colored face mask or bandana that extended from his neck or chin
and beyond the bridge of his nose. The man (hereinafter
“gunman”) pulled out a small-framed black pistol from his
waistband and a red dot coming from the weapon appeared in the
middle of Johnson’s chest. He fed a live round into the chamber
of the gun and stated, “do you think it’s a fucking game?” The
gunman demanded money, drugs, and whatever they had on
them. Johnson put his hands up and stated, “I don't know what
you’re talking about, we don't have anything” and he attempted
to dissuade the gunman from robbing them. The gunman directed
Johnson to get down on the ground. Johnson went to his knees
and turned to face his car. The gunman held his pistol to the back
of Johnson’s head and demanded that he get all the way down on
the ground. Johnson refused stating, “I’m not a dog.” In
response, the gunman pistol whipped Johnson in the back of his
head.
The gunman subsequently walked around the front of
Johnson’s car to Showers and put him into a headlock. He held
his pistol to the side of Showers’ head and demanded money,
drugs, and whatever he had on him. He also asked Showers if he
“wanted to die tonight.” Showers told the gunman that he left
money inside of the house and he asked if he could retrieve it.
The gunman agreed and they walked to the front of the residence
while the gun was pointed at Showers. Showers testified that they
momentarily fought for the gun, but the gunman ultimately
retained control of it. Showers knocked on the door of the house
and Krinock let him inside.
Johnson testified that the vehicle’s trunk was still open so
he got up and closed it. Upon hearing Johnson close the trunk,
the gunman turned around, pointed the gun at Johnson, and told
him to “back up.” Johnson moved backward and stood on the
sidewalk near the rear driver’s side door of the vehicle. The
gunman stated, “these are my streets, this is my turf, I’ve told
these kids about selling drugs on my streets.” Johnson replied,
“this isn’t the way we do things, man” and “you don't need to
wave a gun around to get money, you don’t need to threaten
violence against other people for any reason.” The gunman did
not “want to hear it” and stated, “these are my streets, this is my
streets, don’t be selling drugs on my streets, where’s your money,
give me the money.” Johnson testified that he held his hands up
to show the gunman that he was not being hostile.
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Showers testified that when he went inside the residence,
he told the individuals what was happening and he asked them if
they had any weapons and could help. [Gearhart] and Krinock
stated that they did not have any weapons and did not know what
Showers could do. Showers then went into the basement to
“collect [his] thoughts.” About five (5) to ten (10) minutes later,
[Gearhart] went downstairs and told Showers, “yeah, this guy’s
not leaving, go give him some money.” [Gearhart] suggested that
Showers give him money to try and get the gunman to leave.
Showers went upstairs and ultimately gave Krinock the $80 that
he received from Victim. Showers went into the living room to
see what was going on and then he went back into the basement.
Krinock exited the front door of the residence and handed
the money to the gunman. Johnson stated that Krinock told the
gunman, “this is all he had on him” or “this is what he’s got.”
Victim also exited the front door of the residence and put himself
between the gunman and Krinock. Victim told the gunman, “you
know, underneath that mask I bet you’re Zach McGrath
[(“McGrath”)], I know who you are, you’re Zach, I know you.” The
gunman became “incredibly defensive” and replied, “you don’t
know me, I’m not Zach, I don’t know who Zach is.” Victim then
punched the gunman in the face and he stumbled backward. The
gunman punched Victim with his pistol in the throat near his jaw.
Victim struck the gunman in the face a second time and he
stumbled onto the sidewalk. Johnson then struck the gunman in
the back of his head while he was getting up. The gunman curled
into a defensive position while still on his feet and Victim and
Johnson continued to punch him. The gunman subsequently went
to his knees and as he came back up, Victim attempted to take
the gun from him. The gun went off and hit Victim in his stomach.
Johnson ran inside of the residence while the red dot from
the weapon traced him up the stairs. He dove into the front
entryway and heard a second shot. Johnson crawled into the
living room and inspected himself for bullet wounds, but he did
not see any. Showers and [Gearhart] were also inside of the
residence. Showers testified that he went upstairs after hearing
two (2) gunshots while he was in the basement. Johnson
approached the screen door and saw Victim crawling up the stairs
to get inside of the house. Johnson pulled Victim inside and asked
him what happened. Victim told Johnson that he got shot.
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Johnson lifted Victim’s “hoodie” and t-shirt and observed two (2)
bullet wounds in his abdomen.
Johnson started screaming, “we need to call 911, we need
medics, we need an ambulance, we need the police, I need
somebody to help.” [Gearhart] told Johnson to put Victim in the
back seat of his car and Johnson replied, “I can’t treat gunshot
wounds in the back seat of a car, I need an ambulance now.”
[Gearhart] stated, “we can't have cops here, I don’t want to get
in trouble.” Showers attempted to call 911, but [Gearhart] took
the phone out of Showers’ hand and kept it away from him.
Johnson testified that [Gearhart] did not want someone to call the
police because he was afraid that he would get in trouble for
having drugs inside of the house. Johnson continued to scream
for medics and, after about ten (10) minutes, [Gearhart’s] mother
came downstairs. She asked if Victim was sick and [Gearhart]
remarked that Victim “wasn’t feeling well.” Johnson told
[Gearhart’s] mother that Victim had been shot and needed to go
to the hospital immediately. She assured Johnson that someone
would be called for Victim or he would be taken to the hospital.
Showers and Johnson subsequently left the residence and
drove directly to Colorado. About eight (8) or nine (9) hours into
their trip, Showers received a phone call from a detective, who
informed him that Victim died and [police] had his money and
bags. Johnson testified that he did not know how the bags were
removed from the vehicle. Detectives also notified Showers and
Johnson that they wished to speak with them when they got back.
Johnson pulled his vehicle over at the next rest stop and they
confirmed that the bags were missing from the trunk. Johnson
testified that the trunk was able to be opened from the interior of
his vehicle.
Showers testified that, about nine (9) months prior to the
incident, he had a dispute with Krinock over a girl. Specifically,
he called Krinock a “broke bitch.” Showers . . . believed that
Krinock was angry enough with him over this remark that he
would conspire with [Gearhart] and Zachary McGrath (hereinafter
“McGrath”) to rob him.
Robert Stewart (hereinafter “Stewart”) testified that he
received a call from McGrath soon after midnight on January 20,
2016, . . . [and] subsequently picked-up McGrath outside of a
friend’s house located a few blocks away from 409 St. Clair Street.
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Stewart testified that . . . McGrath told him that he planned the
robbery with Krinock and [Gearhart], and Krinock “bitched out.”
****
[Ben] Irvin [(“Irvin”)] testified that he would often go to 409
St. Clair Street to “hang out and party,” which involved using
drugs and alcohol. About one (1) or two (2) months prior to
January 20, 2016, he saw three (3) pistols inside of 409 St. Clair
Street. Specifically, he observed a .22-caliber pistol, a “big John
Wayne” pistol, and a small black .9-millimeter pistol with a laser
“dot.” Irvin testified that the pistols were kept inside of a drill
case that was moved between several different locations within
the house. He believed that he saw the weapons upstairs in
[Gearhart’s] bedroom. Irvin mainly saw Krinock handle the
weapons, but they were passed around among his friends. Irvin
testified that he, Randy Nevin (hereinafter “Nevin”), McGrath,
Krinock, and [Gearhart] could have been holding the weapons at
any given time. Irvin heard McGrath, Krinock, and [Gearhart] use
the phrase “hit a lick” inside of 409 St. Clair Street, which meant
to “rob somebody.” He believed that he mainly heard McGrath
and Krinock use the phrase. Irvin, however, stated that any one
of them could have stated “hit a lick” and he could not recall a
specific occasion where [Gearhart] said it.
On January 19, 2016, Irvin went to 409 St. Clair Street with
Nevin around 9:00 p.m. McGrath, Krinock, Parry, [Gearhart], and
Joey Brubaker were also at the residence. Irvin recalled hearing
[Gearhart] say, “they’re on their way” or “they’ll be here soon”
that night. Irvin left the residence shortly after 9:00 p.m.
****
Multiple Latrobe police officers testified that they responded
to the incident at 409 St. Clair Street shortly after midnight on
January 20, 2016. Officer Ronald Keslar testified that, when he
reported to 409 St. Clair Street, he observed Victim lying on his
back in the foyer of the residence with three (3) wounds to his
abdomen. Victim was fading in and out of consciousness and
Officer Tempo was applying direct pressure to Victim’s wounds.
Victim was asked what happened and he responded that he was
shot by a male with a dark hooded sweatshirt. Subsequently, an
ambulance arrived and Victim was transported to the hospital.
Detective John Sleasman testified that he went to Latrobe Hospital
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with Officer Tempo and attempted to speak with Victim, but he
was unresponsive. Victim ultimately died as a result of his
injuries.
[Gearhart], [his mother, Jennifer Stitt (“Stitt”)], Krinock,
[Destiny Parry (“Parry”)], and Stitt’s boyfriend, James Carns
(hereinafter “Carns”), were at the residence that night. Officer
Michelle Preston testified that she spoke with Krinock and
[Gearhart] about the incident. Krinock informed Officer Preston
that some friends left the residence and then ran back inside
stating that a male was outside with a gun. Krinock did not believe
them, so he went outside with Victim. They fought with the
gunman so his friends could leave. Krinock heard gunshots and
noticed Victim was shot. He identified “Chris” as the person who
left. Additionally, Officer Keslar testified that [Gearhart] stated
that there was a man outside wearing a dark hooded sweatshirt
and a mask and he fled in an unknown direction after the robbery.
He did not know the identity of the perpetrator of the robbery.
Officer Preston also testified that she found Parry sleeping in a
bedroom when she escorted Krinock upstairs to get more clothing.
She awakened Parry and asked her multiple questions, including
who[m] she was intimate with and Parry responded, “Zach.”
Officer Preston located a wallet containing McGrath’s I.D. and
Parry indicated it belonged to “Zach.” Officer Preston asked Parry
where “Zach” was and she said that he left a while ago.
At one point, officers wanted to secure the residence to
preserve evidence. [Gearhart], Stitt, Krinock, Carns, and Parry
were asked to exit the residence and remain on the porch area.
Officer Keslar described the weather that night as “very cold” so
the individuals were allowed to put on warm clothing. After about
twenty (20) minutes, they were permitted to sit inside Stitt’s
vehicle and turn it on. The individuals were subsequently
transported to the Latrobe Police Station. Officer Keslar testified
that he determined the identity of Showers and Johnson via
Facebook and their identities were confirmed by Krinock.
Officer Preston testified that she assisted detectives with a
search outside of the residence. She located one (1) draw string
bag and one (1) duffle bag on the side of the house. She opened
one of the bags and observed a large sum of money and a laptop.
It was later determined that the bag contained $12,000.
Additionally, Officer Keslar located two (2) spent .9-millimeter
shell casings in front of the residence. The shell casings were in
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a location that was consistent with the information that [Gearhart]
provided to the police. A canine handler for the Latrobe Police
Department, Officer Robert Derk, testified that he attempted to
track the assailant with his canine, but was unable to do so.
Additionally, a backpack was located inside a shed in the
backyard of the residence. Drugs, drug paraphernalia, and a hard
plastic case containing two (2) firearms were found inside the
backpack. The weapons consisted of a loaded .44-caliber revolver
and an unloaded .22-caliber semi-automatic pistol. Detective
Sleasman obtained consent from Stitt to conduct a search of the
residence. Officer Derk testified that vacuum sealed bags with a
strong odor of marijuana and marijuana residue were located in
the basement.
Once the individuals from 409 St. Clair Street arrived at the
Latrobe Police Station, they were separated into different rooms.
[Gearhart] and Stitt were placed inside the police station’s
processing room and they were advised that it contained video
and audio surveillance, although the audio surveillance did not
work at that time. Detective Ray Dupilka, who works as a
detective for the Westmoreland County Detective Bureau, testified
that he assisted with interviewing witnesses. Detectives
interviewed Stitt, Carns, Parry, and Krinock respectively.
[Gearhart] was thereafter interviewed while Stitt was present. He
was about two (2) months from his eighteenth birthday at the
time of the interview. [Gearhart] told detectives that Krinock and
McGrath resided at the residence prior to the incident. On the
evening of January 19, 2016, [Gearhart] was at the residence with
McGrath, Parry, and Krinock. [Gearhart] asked his mother if he
could have friends over and she agreed. At about 9:00 p.m.,
Victim arrived at the residence. McGrath left shortly thereafter
and did not return. About one (1) hour after Victim arrived,
Showers and Johnson came to the residence. They stayed for
about one (1) hour and then left. After they left, [Gearhart] heard
an altercation outside. Moments later, Showers ran back inside
and indicated that there was an unknown masked individual
holding Johnson at gunpoint on the street. Victim and Krinock
went outside to assist Johnson and [Gearhart] heard a gunshot.
Johnson and Krinock carried Victim inside of the residence
because Victim got shot. Johnson and Krinock attempted to
render aid to Victim until Stitt contacted 911. Johnson and
Showers left the residence after 911 was called.
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Detective Klawinski thereafter arrived at the Latrobe Police
Department and, informed detectives that they found a backpack
inside a storage shed at the rear of the residence that contained
drugs, drug paraphernalia, and a plastic tool case with two (2)
firearms. He also told detectives that they found two (2) bags,
one (1) of which contained $12,000. Detective Dupilka was
additionally notified that Victim died as a result of his injuries.
Detectives confronted [Gearhart] with this new information
and he indicated that he had not been truthful. He provided
detectives with a different set of facts regarding the incident.
Specifically, [Gearhart] told detectives that they contacted
Showers earlier in the day about coming to the residence to sell
drugs. Prior to Showers’ and Johnson’s arrival, McGrath left the
residence and did not return. Once Showers and Johnson arrived,
Showers sold cocaine to Victim for $80. Showers and Johnson left
the residence after about one (1) hour. After they left, they heard
an altercation on the street. Showers went back inside the
residence and told everyone that there was a male in all black
clothing holding Johnson at gunpoint outside. Krinock and Victim
went outside and [Gearhart] heard a gunshot. Johnson and
Krinock carried Victim inside and [Gearhart] saw that Victim was
shot. Johnson and Krinock tended to Victim’s wounds. [Gearhart]
panicked and cleaned the interior of the residence of incriminating
items with Krinock. Krinock placed a backpack with firearms,
marijuana, and drug paraphernalia inside of the shed. They
delayed contacting 911 for eight (8) to ten (10) minutes until
those items were removed. Showers and Johnson left after 911
was called.
Detective Dupilka asked [Gearhart] about the identity of the
shooter and he confessed to knowing that McGrath was the
shooter. He knew that McGrath was the shooter because, prior to
Showers’ and Johnson’s arrival, [Gearhart], McGrath, and Krinock
planned on robbing Showers of his money and/or drugs.
[Gearhart] knew Showers was going to Colorado and he kept large
amounts of money and/or drugs with him, so he was the target of
the robbery. He also knew that McGrath and Krinock possessed a
.44-caliber revolver, .22-caliber pistol, and a .9-millimeter pistol
concealed inside of a plastic tool box. [Gearhart] told Detective
Dupilka that, prior to Showers’ arrival, he messaged Krinock
through Facebook Messenger on his phone and told him that he
did not think the robbery was a good idea. Krinock told [Gearhart]
not to “puss out” and he would still get his cut of the proceeds of
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the robbery. [Gearhart] believed that Krinock and McGrath
maintained contact via text message after McGrath left the
residence and Krinock was keeping McGrath apprised of Showers’
movements. [Gearhart] and Stitt agreed to participate in an
audio-recorded interview and this interview was played for the
jury. In his recorded statement, [Gearhart] did not specifically
state that he was involved the planning of the robbery.
[Gearhart], however, again stated that he was told not to “puss
out” and that he would get his cut of the proceeds of the robbery.
[Gearhart] agreed to provide his cellular phone to
investigators. Call data information from [Gearhart’s] phone
revealed four (4) outgoing calls from [Gearhart’s] phone to
Showers’ phone on the evening of January 19, 2016. Donald
Lucas (hereinafter “Lucas”) testified as an expert in forensic
analysis of electronic equipment. Upon examination of
[Gearhart’s] phone, he found that only one (1) of the calls
between [Gearhart] and Showers was present on the phone’s call
log and he believed the other calls were likely deleted. Call data
records also revealed nine (9) text messages between [Gearhart]
and Showers on the evening of the incident. Lucas testified that
these text messages were not on [Gearhart’s] phone and they
were likely deleted. Three (3) images were also recovered from
[Gearhart’s] phone and Lucas testified that these images were
most likely deleted. The first image depicted a green tool box
containing a large frame revolver and a small frame semi-
automatic pistol. The second picture was of a black semi-
automatic pistol on top of bedding with a magazine inserted into
it and a laser sight activated. The third picture showed [Gearhart]
holding a silver frame semi-automatic pistol with a detachable box
magazine removed with a silver jacketed bullet loaded into the
magazine. Detective Dupilka testified that the weapons in the
pictures are similar to the ones that were recovered in this case.
Lucas also testified that he did not find any “artifacts” of Facebook
or Facebook Messenger on [Gearhart’s] phone. Additionally, call
data records from Krinock’s phone revealed communication
between Krinock and McGrath from 11:30 p.m. to 11:58 p.m. on
the night of the incident. . . .
****
Dr. Cyril Wecht testified as an expert in forensic pathology.
He performed an autopsy on Victim on January 20, 2016. . . . Dr.
Wecht believed that, if Victim received prompt treatment with
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trained EMTs and surgical intervention, there would have been
“quite a reasonable chance for recovery because the internal
organs had not been damaged.”
Trial Court Opinion, 10/8/19, at 2-15 (unnecessary capitalization and
references to the record omitted).2
At the conclusion of trial, the jury convicted Gearhart of third-degree
murder, robbery and conspiracy. The trial court imposed an aggregate
sentence of ten to twenty years in prison. Gearhart filed post-sentence
motions, which the trial court denied. Gearhart thereafter filed a timely notice
of appeal. Both Gearhart and the trial court complied with Pa.R.A.P. 1925.
Gearhart raises the following issues for our review:
1. Whether the evidence presented at trial was insufficient as a
matter of law to support a verdict of guilty with respect to
third[-]degree murder.
2. Whether the verdict was against the weight of the evidence.
3. Whether the court below erred in preventing counsel from
cross-examining witnesses with respect to relevant and
admissible statements made by a co-defendant.
4. Whether the court below erred in failing to suppress
[Gearhart’s] statements made to police.
Gearhart’s Brief at 5 (unnecessary capitalization omitted).
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2 In its opinion, the trial court spelled Mcnerney as “McNerny,” and Carns as
“Carnes.” However, the record indicates that the correct spelling for these
names is McNerney and Carns. Therefore, we have altered the trial court’s
opinion to reflect the correct spelling of these names.
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In his first issue, Gearhart contends that the evidence presented at trial
was insufficient to support his conviction for third-degree murder. Our scope
and standard of review of a sufficiency claim is well-settled:
[O]ur standard of review of sufficiency claims requires that we
evaluate the record in the light most favorable to the verdict
winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence. Evidence will be
deemed sufficient to support the verdict when it establishes each
material element of the crime charged and the commission thereof
by the accused, beyond a reasonable doubt. Nevertheless, the
Commonwealth need not establish guilt to a mathematical
certainty. [T]he facts and circumstances established by the
Commonwealth need not be absolutely incompatible with the
defendant’s innocence. Any doubt about the defendant’s guilt is
to be resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.
Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa. Super. 2013) (citations
and quotation marks omitted).
The Pennsylvania Crimes Code defines third-degree murder as any
killing with malice that is not first or second-degree murder. See 18 Pa.C.S.A.
§ 2502(c); see also Commonwealth v. Baskerville, 681 A.2d 195, 199-
200 (Pa. Super. 1996).
A person is guilty of conspiracy to commit a crime if with the intent of
promoting or facilitating its commission, he:
(1) agrees with such other person or persons that they or one or
more of them will engage in conduct which constitutes such crime
or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or
commission of such crime or of an attempt or solicitation to
commit such crime.
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18 Pa.C.S.A. § 903(a). Thus, in order to prove conspiracy, the Commonwealth
must demonstrate that the defendant: “(1) entered an agreement to commit
or aid in an unlawful act with another person or persons, (2) with a shared
criminal intent and, (3) an overt act was done in furtherance of the
conspiracy.” Commonwealth v. Rios, 684 A.2d 1025, 1030 (Pa. 1996); see
also 18 Pa.C.S.A. § 903. Once the conspiracy is established beyond a
reasonable doubt, a conspirator can be convicted of both the conspiracy and
the substantive offense that served as the illicit objective of the conspiracy.
Commonwealth v. Miller, 364 A.2d 886, 887 (Pa. 1976).
Proving the existence of such an agreement is not always easy, and is
rarely proven with direct evidence. Commonwealth v. Spotz, 716 A.2d 580,
592 (Pa. 1998). “An explicit or formal agreement to commit crimes can
seldom, if ever, be proved and it need not be, for proof of a criminal
partnership is almost invariably extracted from the circumstances that attend
its activities.” Commonwealth v. Strantz, 195 A. 75, 80 (Pa. 1937).
Indeed, “[a] conspiracy may be proven inferentially by showing the relation,
conduct, or circumstances of the parties, and the overt acts of alleged co-
conspirators are competent as proof that a criminal confederation has in fact
been formed.” Commonwealth v. Kennedy, 453 A.2d 927, 929, 930 (Pa.
1982).
Gearhart argues that, because there was no evidence that he shot
Victim, Gearhart could only be found guilty of the murder as an accomplice
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under 18 Pa.C.S.A. § 306(c).3 Gearhart claims that the evidence, even when
viewed in the light most favorable to the Commonwealth, showed that he
helped plan the robbery of Showers, and that he delayed the calling of 911
after Victim was shot in order to hide drugs. Gearhart asserts that there is no
evidence that he promoted or facilitated the killing of Victim, or that he
solicited, aided, or agreed or attempted to aid McGrath in killing Victim.
According to Gearhart, the evidence showed only that he facilitated or aided
in the crime of robbery, and that the requirements for accomplice liability for
murder were not met.4
Notably, at trial, the Commonwealth argued that Gearhart was
responsible for Victim’s murder based on either criminal conspiracy under 18
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3 Pursuant to § 306, “[a] person is an accomplice of another person in the
commission of an offense if: . . . with the intent of promoting or facilitating
the commission of the offense, he: (i) solicits such other person to commit it;
or (ii) aids or agrees or attempts to aid such other person in planning or
committing it. 18 Pa.C.S.A. § 306(c).
4 Gearhart additionally argues that “the evidence presented fell short of being
sufficient to establish the requisite malice for him to be convicted of third-
degree murder.” Gearhart’s Brief at 14. However, Gearhart provides no
discussion of the mens rea required for criminal conspiracy to commit third-
degree murder, nor any explanation of this argument. Thus, we deem it
waived. See Commonwealth v. Heggins, 809 A,2d 908, 912 n.2 (Pa.
Super. 2002) (holding that an issue identified on appeal but not developed in
appellant’s brief of abandoned and therefore waived). Moreover, even if
Gearhart had developed the argument, we would have concluded it lacked
merit for the reasons expressed by the trial court in its opinion. See Trial
Court Opinion, 10/8/19, at 22-23.
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Pa.C.S.A. § 903(a) or accomplice liability under § 306(a). However, the jury
found Gearhart guilty of criminal conspiracy to commit third-degree murder
under § 903(a). As such, Gearhart’s sufficiency argument relating to
accomplice liability under § 306 is irrelevant. Gearhart does not discuss his
conviction for conspiracy, or argue that the evidence was insufficient to
support that conviction. Based on these deficiencies, Gearhart has failed to
establish that his first issue merits any relief.5
In his second issue, Gearhart challenges the weight of the evidence
supporting his guilty verdicts. The following legal principles apply when a
challenge to the weight of the evidence supporting a conviction is presented
to the trial court:
A motion for new trial on the grounds that the verdict is
contrary to the weight of the evidence, concedes that there is
sufficient evidence to sustain the verdict. Thus, the trial court is
under no obligation to view the evidence in the light most
favorable to the verdict winner. An allegation that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. A trial judge
must do more than reassess the credibility of the witnesses and
allege that he would not have assented to the verdict if he were a
juror. Trial judges, in reviewing a claim that the verdict is against
the weight of the evidence do not sit as the thirteenth juror.
Rather, the role of the trial judge is to determine that
“notwithstanding all the facts, certain facts are so clearly of
____________________________________________
5 In its opinion, the trial court set forth the elements of criminal conspiracy
under § 903, and provided a thorough discussion as to why the evidence was
sufficient to support Gearhart’s conviction for conspiracy to commit murder.
See Trial Court Opinion, 10/8/19, at 20-22.
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greater weight that to ignore them or to give them equal weight
with all the facts is to deny justice.”
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citations,
footnotes and quotation marks omitted). The trial court will award a new trial
only when the jury’s verdict is so contrary to the evidence as to shock one’s
sense of justice. Commonwealth v. Cousar, 928 A.2d 1025, 1036 (Pa.
2007)
An appellate court’s standard of review when presented with a weight
of the evidence claim is distinct from the standard of review applied by the
trial court:
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (emphasis in
original, internal citations omitted). The finder of fact is the exclusive judge
of the weight of the evidence as the fact finder is free to believe all, part, or
none of the evidence presented and determines the credibility of the
witnesses. Commonwealth v. Boyd, 73 A.3d 1269, 1274 (Pa. Super. 2013)
(en banc).
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Gearhart claims that “the evidence as a whole did not support the
conclusion beyond a reasonable doubt that . . . Gearhart was a co-conspirator,
or that he aided or otherwise agreed with . . . McGrath and . . . Krinock for
the robbery to be committed.” Gearhart’s Brief at 15. According to Gearhart,
“the evidence clearly showed that the agreement was between [McGrath] and
[Krinock] . . . [and a]ny involvement that [Gearhart] may have had was de
minimus at best.” Id. Gearhart additionally argues that he communicated to
Krinock that he did not want for them to follow through with the robbery. Id.The trial court considered Gearhart’s weight challenge and determined
that, in light of the evidence presented by the Commonwealth at trial, the
guilty verdicts were not so contrary to the evidence presented at trial as to
shock one’s sense of justice. See Trial Court Opinion, 10/8/19, at 24.
As noted above, appellate review of a weight of the evidence claim is
limited to whether the trial judge’s discretion was properly exercised, and
relief will only be granted where the facts and inferences of record disclose a
palpable abuse of discretion. See Cousar, 928 A.2d at 1036. We discern no
abuse of discretion by the trial court in rejecting Gearhart’s weight challenge.
The facts and inferences from the evidence presented at trial by the
Commonwealth support a determination by the jury that Gearhart was
involved in the planning and commission of the armed robbery of Showers by
McGrath. Thus, Gearhart’s second issue merits no relief.
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In his third issue, Gearhart contends that the trial court erred by
sustaining the Commonwealth’s objection to defense counsel’s attempt to
elicit hearsay testimony from Commonwealth witness, Ben Irvin. Our
standard of review concerning the admissibility of evidence at trial is well-
settled:
The admission of evidence is solely within the discretion of
the trial court, and a trial court’s evidentiary rulings will be
reversed on appeal only upon an abuse of that discretion. An
abuse of discretion will not be found based on a mere error of
judgment, but rather occurs where the court has reached a
conclusion that overrides or misapplies the law, or where the
judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will.
Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015).
Hearsay means “a statement that (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers in evidence to
prove the truth of the matter asserted in the statement.” Pa.R.E. 801(c).
Hearsay is not admissible except as provided by our Rules of Evidence, by
other rules prescribed by the Pennsylvania Supreme Court, or by statute.
Pa.R.E. 802.
Gearhart concedes that the subject testimony would have been hearsay,
but argues that it should have been admitted as an exception to the hearsay
rule under Pa.R.E. 804. Rule 804 provides certain exceptions to the rule
against hearsay when the declarant is unavailable as a witness. One such
exception pertains to statements against interest under subsection (b)(3).
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The version of the exception which was in effect at the time of Gearhart’s trial
provided as follows:
(b) The Exceptions. The following are not excluded by the rule
against hearsay if the declarant is unavailable as a witness:
....
(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant's position would
have made only if the person believed it to be true because,
when made, it was so contrary to the declarant's
proprietary or pecuniary interest or had so great a tendency
to invalidate the declarant's claim against someone else or
to expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly
indicate its trustworthiness, if it is offered in a criminal case
as one that tends to expose the declarant to criminal
liability.
Pa.R.E. 804(b)(3).6
Our Supreme Court has identified four criteria which must be met in
order to satisfy the exception provided by Rule 804(b)(3): (1) the declarant
made a statement; (2) the declarant was, at the time of trial, unavailable as
a witness; (3) the statement at the time of its making so far tended to subject
the declarant to criminal liability that a reasonable person in the declarant’s
position would not have made the statement unless believing it to be true;
____________________________________________
6In his brief, Gearhart did not cite or reference the version of Rule 804 which
was in effect at the time of his 2019 trial. Instead, he merely provided the
version of the rule which was in effect in 2006, as cited in Commonwealth
v. Brown, 52 A.3d 1139, 1176 (Pa. 2012).
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and (4) corroborating circumstances clearly indicate the trustworthiness of the
statement. See Brown, 52 A.3d at 1176.
“A demonstration of trustworthiness is of particular importance where
the hearsay statement is that of an accomplice implicating his coconspirator;
as such statements are viewed with great suspicion and are presumptively
unreliable.” Commonwealth v. Robins, 266, 812 A.2d 514, 525 (Pa. 2002).
Similarly, “[a] statement that exculpates a declarant’s accomplice lacks the
safeguards of trustworthiness attributed to a statement truly against interest.”
Commonwealth v. Colon, 846 A.2d 747, 757 (Pa. Super. 2004).
The circumstances to be examined in this inquiry are limited to those
attendant to the making of the statement; and in this regard, the use of
hindsight or ‘bootstrapping’ based upon independent evidence is proscribed.”
Id. Among the factors a court might consider in determining the reliability of
inculpatory or exculpatory statements are:
the circumstances under which the statements were uttered,
including the custodial/non-custodial aspect of the setting and the
identity of the listener; the contents of the statement, including
whether the statements minimize the responsibility of the
declarant or spread or shift the blame; other possible motivations
of the declarant, including improper motive such as to lie, curry
favor, or distort the truth; the nature and degree of the “against
interest” aspect of the statements, including the extent to which
the declarant apprehends that the making of the statement is
likely to actually subject him to criminal liability; the
circumstances or events that prompted the statements, including
whether they were made with the encouragement or at the
request of a listener; the timing of the statement in relation to
events described; the declarant’s relationship to the defendant;
and any other factors bearing upon the reliability of the statement
at issue.
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Id. at 525-26.
Gearhart asserts that Irvin assisted McGrath after the shooting, and that
McGrath told Irvin that McGrath and Krinock had planned to rob Showers.
When the defense attempted to elicit this statement from Irvin in order to
show that Gearhart was not involved in planning the robbery, the trial court
sustained the Commonwealth’s hearsay objection. Gearhart argues that,
although the testimony was hearsay, it should have been admitted under Rule
804 because the statement was inculpatory, relevant, and trustworthy.
Gearhart maintains that McGrath’s description of the shooting was similar to
the descriptions provided by Showers and Johnson, the statement was made
when McGrath was confiding in someone he trusted (i.e., Irvin), and McGrath
admitted that he shot Victim and did not try to minimize his role. Gearhart
argues that McGrath never mentioned Gearhart’s name, and there did not
appear to be any attempt by McGrath to exonerate Gearhart.
Gearhart points to Brown, and argues that it is “nearly directly on
point.” Gearhart’s Brief at 16. In Brown, the defendant sought to introduce
written and videotaped confessions made to police by his co-defendant,
Walker. In the confessions, which were made after Walker was provided with
Miranda7 warnings, Walker admitted to planning and carrying out a shooting
with his two half-brothers. Walker explained their joint involvement in a
____________________________________________
7 See Miranda v. Arizona, 384 U.S. 436 (1966).
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conspiracy to distribute cocaine, offered a motive for the shooting, described
the weapons he and his half-brothers used in the shooting, and denied Brown’s
involvement in the shooting. Brown, 52 A.3d at 1145. Walker later pled
guilty, and at his plea hearing repudiated his claim in the confessions that
Brown was not present at the scene and, testified that Brown possessed a .38
caliber weapon which Brown fired at the victims. Id. at 1151. The trial court
determined that Walker’s prior confessions exonerating Brown were not
admissible under Rule 804(b)(3) because they did not expose Walker to any
additional punishment. Id. This Court affirmed the trial court’s decision in a
divided unpublished memorandum. Commonwealth v. Brown, 970 A.2d
464 (Pa. Super. 2009). Our Supreme Court reversed. It determined that
there existed sufficient corroborating circumstances to clearly indicate the
trustworthiness of Walker’s confessions. Brown, 52 A.3d at 1177. The High
Court reasoned:
Walker gave his confessions after Miranda warnings were
administered by the police, apprising him of the consequences
that would flow from his confessions, namely, that they would be
used in a court of law against him. Nevertheless, Walker freely
and openly admitted to his commission of the aforementioned
criminal acts, describing in intricate detail: the creation of a pact
with two other individuals to kill Williams; their planning of the
killing; the implementation of those plans by the execution of a
coordinated ambush on Williams and his companions; and the
steps they took, together, to conceal their involvement after the
shootings. Notably, Walker gave a graphic description of his own
slaying of Williams, describing how Williams’ body jumped from
the force of impact from the bullets he fired. Walker expressly
acknowledged that he was not promised anything for his
confessions by the police, and further offered that he had been
threatened with death by one of the individuals if he cooperated
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with the police. Thus, Walker had a strong incentive not to
implicate those two individuals to the police, and the fact that he
did so imparted greater reliability to his confessions.
Also, Walker gave a nearly identical account of his criminal
actions, both in his written confession and, significantly, in the
confession which was videotaped by the investigating detectives.
As [Brown] notes, this was not a situation where a self inculpatory
statement was given in a remote setting where there were no
witnesses, and the recipient of the statement was a person of
questionable character. Instead, these confessions were given in
a police station to detectives who scrupulously recorded every
word in writing and with a video camera exactly as Walker said
them. Hence, Walker’s confessions were given under conditions
which gave maximum assurance that their contents were an
accurate reflection of what he said.
Moreover, in making these confessions, Walker did not try
to shift the responsibility for his actions from himself to anyone
else. While he also implicated his half-brothers, he did so only in
the context of explaining his own involvement with them in the
commission of the crimes. Although he indicated that he felt some
reluctance at one point in participating with his half-brothers in
the commission of the crimes, he, nevertheless, admitted to
willingly doing so and never suggested that they coerced,
threatened or otherwise forced him to do so. Also, Walker’s
primary purpose in giving his confessions did not seem to be a
desire to exonerate [Brown], as he did not, in those confessions,
bring up [Brown’s] non-involvement—except in response to
inquiries from the investigating detectives.
Additionally, and importantly, Walker’s confessions included
critical details which comported with the physical evidence
recovered from the crime scene and from the victims’ bodies and
clothing.
Brown, 52 A.3d at 1177-78.
The trial court considered Gearhart’s evidentiary challenge and
determined that the hearsay statement did not fall within the statement
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against interest exception provided by Rule 804(b)(3). The court reasoned as
follows:
In the case sub judice, this court finds that the statement at
issue does not fall within the statement against interest hearsay
exception because the portion of McGrath’s statement specifically
regarding Krinock was not self-inculpatory to McGrath. During
trial, [Gearhart] did not intend to elicit McGrath’s statement from
Irvin to show that McGrath admitted to planning the robbery.
Rather, [Gearhart] intended to elicit this statement to
demonstrate that McGrath did not implicate [Gearhart] in the
robbery and that [Gearhart] was not involved. The portion of
McGrath’s statement that specifically mentions Krinock, however,
was only self-inculpatory to Krinock. Ultimately, this court agrees
with the Commonwealth that the “non-inculpatory portion of
McGrath’s statement was collateral to his statement and
inadmissible hearsay.”
Furthermore, upon review of the totality of the
circumstances, McGrath’s statement is not supported by
corroborating circumstances that clearly indicate its
trustworthiness. This Court was unaware of the context in which
the statement was given and when it was prompted. Defense
counsel even noted during trial that he did not know when the
statement was made because its timing was not clear based on
the evidence. The statement seemed to be an off-the-cuff remark
that lacked sufficient detail. McGrath very well may have been
talking about who was supposed to be outside executing the plan
or he may have been talking about how everything started and
who was involved with what. He also may have intended to shift
the blame to Krinock when making the statement considering he
was aware that Victim was dead and the police were looking for
him. There was also testimony from one of the witnesses that
McGrath stated that Krinock was supposed to be there too but he
“bitched out” and this could have been what they were discussing.
The reliability of the statement was also questionable considering
that Irvin provided contradicting testimony regarding a different
matter at trial, which was highlighted to the jury by [Gearhart].
Trial Court Opinion, 10/8/19, at 28-29 (unnecessary capitalization and
citations to the record omitted).
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The trial court also determined that the hearsay statement at issue in
Brown was distinguishable because the circumstances providing the indicia
of trustworthiness in that case simply were not present in the instant matter.
The trial court explained:
[U]nlike the statements at issue in Brown, there is very little
detail surrounding the statement that was made here and the
context in which it was given. The statement lacks sufficient
detail, unlike the statements in Brown. The situation in the
instant case was exactly one in which a self-inculpatory statement
was given in a remote setting with no witnesses. The recipient,
Irvin, was certainly a person of questionable character who
assisted McGrath with evading the police. The statement was not
recorded in any manner, McGrath did not give the statement to
officers, McGrath was not informed of his [Miranda] rights prior
to making the statement, and McGrath never specifically
exculpated [Gearhart]. For all of these reasons, [Gearhart’s]
reliance on Brown is misplaced and his claim is without merit.
Id. at 30.
We discern no abuse of discretion by the trial court in concluding that
the out-of-court statement made by McGrath to Irvin constituted inadmissible
hearsay because it was not supported by corroborating circumstances that
clearly indicate the trustworthiness required by Rule 804(b)(3). Moreover,
McGrath’s statement to Irvin did not exonerate Gearhart or indicate that
Gearhart was not involved in the conspiracy to rob Showers; rather, the
statement merely identified Krinock as one co-conspirator. Accordingly,
Gearhart’s third issue merits no relief.
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In his final issue, Gearhart contends that the trial court erred in denying
suppression of his statements to police. On appeal from the denial of a
suppression motion:
Our standard of review . . . is whether the record supports
the trial court’s factual findings and whether the legal conclusions
drawn therefrom are free from error. Our scope of review is
limited; we may consider only the evidence of the prosecution 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 record supports the findings of the suppression court,
we are bound by those facts and may reverse only if the court
erred in reaching its legal conclusions based upon the facts.
Commonwealth v. Galendez, 27 A.3d 1042, 1045 (Pa. Super. 2011) (en
banc) (citation omitted). Additionally, “appellate courts are limited to
reviewing only the evidence presented at the suppression hearing when
examining a ruling on a pretrial motion to suppress.” Commonwealth v.
Bush, 166 A.3d 1278, 1281-82 (Pa. Super. 2017) (citation omitted). “It is
within the suppression court’s sole province as factfinder to pass on the
credibility of witnesses and the weight to be given their testimony.” Id. at
1282 (citation omitted).
Juveniles, as well as adults, are entitled to be apprised of
their constitutional rights pursuant to Miranda. If a person is not
advised of his Miranda rights prior to custodial interrogation by
law enforcement officers, evidence resulting from such
interrogation cannot be used against him. A person is deemed to
be in custody for Miranda purposes when [he] is physically denied
of his freedom of action in any significant way or is placed in a
situation in which he reasonably believes that his freedom of
action or movement is restricted by the interrogation.
In re Appeal of B.T., 82 A.3d 431, 436 (Pa. Super. 2013) (citation omitted).
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Further, as this Court has explained:
Custodial interrogation is “questioning initiated by law
enforcement officers after a person has been taken into custody
or otherwise deprived of his freedom of action in any significant
way.” Miranda, supra at 444, . . . [T]he Miranda safeguards
come into play whenever a person in custody is subjected to either
express questioning or its functional equivalent. Thus,
[i]nterrogation occurs where the police should know that their
words or actions are reasonably likely to elicit an incriminating
response from the suspect. [I]n evaluating whether Miranda
warnings were necessary, a court must consider the totality of the
circumstances. In conducting the inquiry, we must also keep in
mind that not every statement made by an individual during a
police encounter amounts to an interrogation. Volunteered or
spontaneous utterances by an individual are admissible even
without Miranda warnings.
***
[T]he test for custodial interrogation does not
depend upon the subjective intent of the law
enforcement officer interrogator. Rather, the test
focuses on whether the individual being interrogated
reasonably believes [his] freedom of action is being
restricted.
***
Said another way, police detentions become
custodial when, under the totality of the
circumstances, the conditions and/or duration of the
detention become so coercive as to constitute the
functional equivalent of arrest.
Thus, the ultimate inquiry for determining whether an
individual is in custody for Miranda purposes is whether there
[was] a formal arrest or restraint on freedom of movement of the
degree associated with a formal arrest. Under the totality of the
circumstances approach, the following factors are relevant to
whether a detention has become so coercive as to constitute the
functional equivalent of a formal arrest: the basis for the
detention; its length; its location; whether the suspect was
transported against his will, how far, and why; whether restraints
were used; whether the law enforcement officer showed,
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threatened or used force; and the investigative methods
employed to confirm or dispel suspicions.
In the Interest of N.M., 222 A.3d 759, 770-71 (Pa. Super. 2019) (citations
omitted).
Gearhart argues that his statements to police should have been
suppressed because he was not provided with a Miranda warning prior to the
interview. Gearhart maintains that, under the totality of the circumstances,
he was subjected to the functional equivalent of an arrest. In making this
argument, Gearhart points to the fact that he and the other individuals at the
crimes scene were directed outside where the temperature was very cold.
Gearhart directs us to Stitt’s disputed testimony that the individuals were not
permitted to get warm clothing before going outside, nor allowed to turn on
Stitt’s car for warmth, and were told by police not to leave the scene.
Gearhart further asserts that, after police transported them to the
Latrobe Police Station, he and Stitt were directed to a cold room. Gearhart
concedes that he was advised by police that he was not under arrest; however,
he asserts that he was never told that he was free to leave. He argues that
the trial testimony provided by police officers established that he was not free
to leave. Additionally, he contends that, as a seventeen-year-old at the time
of the interrogation, he could not have reasonably thought that he was free
to leave. On this basis, Gearhart claims that he should have been provided
with Miranda warnings before police questioned him. He claims that, without
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such warnings, the interview was presumptively coercive, and his statements
should have been suppressed.
During the suppression hearing, the Commonwealth presented the
testimony of Officers Keslar and Derk, and Detective Dupilka, who collectively
testified as follows. Police were summoned to 409 St. Clair Street about
twenty-five minutes after midnight on January 20, 2016, and arrived at the
crime scene a few minutes later. N.T. Suppression, 3/9/18, at 5-6. Upon
their arrival, the found the Victim just inside the front door of the residence
with three gunshot wounds to his abdomen. Id. at 6. Several individuals
were in the residence; namely, Gearhart, Stitts, McGrath, Krinock, Carns, and
Parry. Id. at 7-8. The occupants told the police that Victim was shot by an
unknown assailant wearing a dark mask and hooded sweatshirt. Id. at 8. The
police asked the occupants of the residence to come outside so that police
could secure the crime scene. Id. at 9. None of the individuals resisted
moving outside. Id. Because it was cold outside, the police gave the
individuals an opportunity to take clothing with them outside, including coats,
hats and gloves. Id. Officers Keslar and Derk could not recall whether the
individuals did take warm clothing outside with them. Id. at 16, 24. The
officers allowed the individuals to sit in Stitts’ vehicle, which was parked near
the front of the residence, while the police processed the crime scene. Id. at
10, 24. Officer Derk testified that the car was started up. Id. at 25. No
threats were made or force used to get the individuals from the house to the
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car, nor were they ever told that they were under arrest. Id. The individuals
were cooperative, and did not complain or object to police requests. Id. at 9,
27-28.
At this point in time, the police did not have any reason to suspect that
any of the individuals in the residence were involved in shooting Victim. Id.
at 27. Instead, the police were on a fact-finding course to determine the
circumstances leading up to and following the shooting. Id. at 36. Police
asked the individuals to accompany them back to the police station to get
further statements and interviews with them. Id. at 11. Police told all of the
individuals, including Gearhart, that they were not under arrest, and that they
were under no obligation to speak to detectives. Id. at 35. No force or threats
or were made to Gearhart or his mother to come to the police station, and
they were cooperative and willingly agreed to go. Id. at 12, 27. Because
Stitts’ vehicle was within the crime scene, police did not want her car to be
moved. Id. at 17, 24. Therefore, at approximately 1:30 a.m., Officer Keslar
transported Gearhart, Stitts, and Krinock to the police station located five to
six blocks away. Id. at 10-11.
At the police station, Gearhart and Stitts were directed to the processing
room, while Officer Keslar took Krinock to the squad room. Id. at 12-13.
Gearhart and Stitts were left alone in the processing room, and the door was
left open. Id. at 13. There were no locked doors preventing their departure,
and they could have proceeded out of the police station if they had wanted to
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leave. Id. Gearhart and Stitts were not threatened to remain in the
processing room, nor did they voice any objection to being there. Id. at 14.
However, Officer Keslar did advise Gearhart and Stitts that the processing
room was under constant video and audio surveillance. Id. at 18. Officer
Keslar periodically checked on Gearhart and Stitt to see if they needed
anything, and they appeared “fine.” Id. at 13. Gearhart was not restrained
in any way from the time police arrived at the residence through the time he
remained in the processing room. Id. at 15. Detective Dupilka indicated that,
following the shooting, he was summoned to the Latrobe police station, and
arrived there at approximately 1:45 a.m. Id. at 31. He interviewed Stitt first,
at approximately 2:25 a.m. Id. at 32. He then interviewed Carns at 2:45
a.m. Id. Detective Dupilka interviewed Parry at 2:56 a.m. Id. Detective
Dupilka began to interview Krinock at 3:15 a.m., and thereafter obtained a
DNA sample from him. Id. Gearhart’s interview began at 4:20 a.m. Id. at
34.
In the presence of Gearhart’s mother, Stitt, Detective Dupilka explained
to Gearhart that he was not under arrest, and that, based on the incident that
occurred outside his residence, the police wanted to know whether he would
agree to permit them to interview him to determine the facts and
circumstances surrounding the shooting. Id. at 36. Gearhart, who was two
months away from his eighteenth birthday, agreed to be interviewed by police.
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Id. at 36-37. Gearhart initially told police that there was a confrontation in
front of his house, and that Victim was shot by an unknown actor. Id. at 38.
During the interview, the police stepped outside the processing room
and were informed that Victim had died of his gunshot wounds. Id. at 40.
The police were additionally advised that officers recovered a duffel bag in a
shed behind Stitt’s residence containing two handguns, marijuana, and drug
paraphernalia. Id. at 39-40. The officers also found two duffel bags on the
side of Stitts’ residence containing a large sum of money and clothing items.
Id. at 40. The police went back into the processing room and conducted a
further interview of Gearhart and Stitts which was recorded. Id. at 41. When
interviewed regarding the additional information, Gearhart admitted that he
had been untruthful, and stated that there had been a pre-planned robbery
prior to the shooting, and he knew the identity of the shooter. Id. at 41.
Gearhart did not identify himself as one if the individuals involved in planning
the robbery. Id. at 62. When the interview was concluded, police gave
Gearhart and his mother a ride back to their home, which officers had finished
processing. Id. at 64.
The defense presented the testimony of Stitts, who stated that the
individuals were not allowed to take anything from inside the residence when
they were asked to go outside. Id. at 75-76. She further indicated that, while
they were permitted to sit in her car, the car was not turned on because they
were not allowed to have the key. Id. at 77. According to Stitts, police told
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the individuals that they were not permitted to leave the scene. Id. at 76-
77.
At the suppression hearing, the court admitted into evidence Gearhart’s
juvenile criminal history, which reflected his past involvement with the
criminal justice system, including prior arrests for retail theft and underage
drinking. Id. at 66.
The trial court considered Gearhart’s final issue and determined that it
lacked merit. It explained its reasoning as follows:
In the case sub judice, this court finds that under the totality
of the circumstances [Gearhart] was not subject to a custodial
interrogation and Miranda warnings were not required. Several
factors support the Commonwealth’s assertion that [Gearhart]
was not subject to a custodial interrogation. [Gearhart] and the
other individuals who were present were asked by police to
relocate to the living room and then front porch area of the
residence so that the crime scene could be secured and preserved.
No one objected to any of these requests and everyone who was
present was cooperative. There was conflicting testimony as to
whether [Gearhart] and the individuals were allowed to obtain
warm clothing from inside of the residence to wear while waiting
outside in the cold weather. Nevertheless, they were eventually
permitted to wait inside of Stitt’s vehicle. Conflicting testimony
was also presented as to whether the vehicle was started at the
time they were sitting inside. [Gearhart] consented to being
transported to the police station for further questioning, which
was located within a short distance from [Gearhart’s] house.
Officer Keslar testified that none of the individuals objected to
being transported to the police station and they were not
threatened. Stitt’s vehicle was considered to be part of the crime
scene; therefore, she was unable to drive it to the police station.
Additionally, at the police station, [Gearhart] was directed to
wait inside of the processing room with his mother, Stitt, for further
questioning. [Gearhart] and Stitt were not supervised while in the
processing room and the door to the room was left open. Officer
Keslar testified that it was possible for [Gearhart] and Stitt to leave
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the processing room and the police department. The processing
room was being recorded and [Gearhart] and Stitt were aware of
this; however, the processing room was under routine surveillance
and the footage of [Gearhart] was not maintained. Officer Keslar
continuously checked on [Gearhart] and Stitt while they were in the
processing room and he believed that they appeared to be “fine.”
They did not indicate that they needed anything when asked and
they did not object to waiting in the processing room. [Gearhart]
was not restrained at any time.
Also, [Gearhart] was informed that he was not under arrest
and he was under no obligation to speak with the Detectives.
Detective Dupilka told [Gearhart] that he was on a fact-finding
interview to determine the circumstances surrounding the shooting
and [Gearhart] consented to the interview. Stitt often encouraged
the Detectives to get as much information about the incident as
possible in front of [Gearhart]. [Gearhart] did not express any
objection to the interview and did not display any hesitancy in
answering any questions. Additionally, [Gearhart] did not express
any desire to leave the premises. Detective Dupilka testified that
[Gearhart] was free to leave if he wanted to, although he did not
recall specifically informing [Gearhart] of this. [Gearhart]
engaged in a series of three (3) interviews; however, each interview
did not occur for a significant period of time. Although Stitt testified
that she had asked about leaving for an appointment in the
morning, Stitt was able to leave to complete her appointment and
she did not testify that [Gearhart] requested to leave at any point.
[Gearhart] also has a juvenile criminal record and has prior
experience with the law. Thus, based on the foregoing, it was not
necessary for Miranda warnings to be read to [Gearhart.]
Trial Court Opinion, 10/8/19, at 36-37 (unnecessary capitalization omitted).
As noted above, our review of a suppression ruling on appeal is limited.
We may consider only the evidence of the prosecution and so much of the
evidence for the defense as remains uncontradicted when read in the context
of the record as a whole. Galendez, 27 A.3d at 1045. Thus, we may not
consider Stitts’ testimony, as it constitutes defense evidence which was
contradicted by the police witnesses.
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Based on the evidence presented by the prosecution, we conclude that
the record supports the findings of the suppression court that Gearhart was
not in custody when he was interviewed by police. At the time he was
questioned, Gearhart had not been formally arrested, and there was no
restraint on his freedom of movement of the degree associated with a formal
arrest. See In the Interest of N.M., supra. Gearhart voluntarily agreed to
a police interview, and to be transported to the nearby police station a few
blocks away. No restraints were placed on Gearhart, and the police never
showed, threatened or used force on him at any time. Importantly, at the
time Gearhart consented to be interviewed by police, Gearhart was not a
suspect, and the basis for Gearhart’s detention by police was to determine the
facts and circumstances of a shooting which occurred at his residence. At the
police station, Gearhart was directed to an open processing room which he
could have left at any time and departed the police station. While the record
reflects that Gearhart’s interview did not start until 4:20 a.m., there is no
indication in the record when it ended, or that the duration of the interview
was excessive. As such, we cannot agree with Gearhart’s claim that his
interaction with police was the functional equivalent of an arrest, or that his
voluntary interview was a custodial interrogation.8
____________________________________________
8 Notably, Gearhart does not argue that the interview became custodial when
the interviewing detective and officers were informed of the guns, drugs and
large amount of cash found at Gearhart’s residence, and thereafter requested
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Accordingly, as the suppression court’s findings are supported by the
record, we are bound by those facts and may reverse only if the court erred
in reaching its legal conclusions based upon the facts. Galendez, 27 A.3d
1045. As we discern no legal error, we affirm the suppression court’s ruling.
Having found no merit to any of Gearhart’s issues, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/22/2020
____________________________________________
his consent to record the remainder of the interview. As Gearhart did not
make this argument to either the trial court or to this Court, or develop it in
the suppression record, we have not considered it in our analysis. See
Pa.R.A.P. 302(a) (providing that issues not raised in the lower court are
waived and cannot be raised for the first time on appeal); see also
Commonwealth v. Le, 208 A.3d 960, 976 n.17 (Pa. 2019) (holding that it is
not an appellate court’s function to act as an advocate for the parties);
Commonwealth v. Capitolo, 498 A.2d 806, 811 (Pa. 1985) (refusing to
address an argument not raised in the trial court, and holding that “[w]e
require strict compliance with the procedures designed for issue preservation
to save judicial manpower, and to prevent our appellate courts from becoming
advocates for parties instead of adjudicators of the issues they present for our
review”); Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010)
(holding that “[t]his Court will not act as counsel and will not develop
arguments on behalf of an appellant”) (citations omitted).
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