Com. v. Gipe, A.

J-S09007-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA, : PENNSYLVANIA
:
Appellee :
:
v. :
:
AMY L. GIPE, :
: No. 1060 MDA 2017
Appellant :

Appeal from the Judgment of Sentence December 21, 2016
in the Court of Common Pleas of Franklin County
Criminal Division at No.: CP-28-CR-0001978-2015

BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.: FILED JUNE 07, 2018

Appellant, Amy L. Gipe, appeals from the judgment of sentence imposed

following her jury conviction of murder of the first degree and related offenses,

as made final by the denial of her post-sentence motion.1 The court imposed

an aggregate sentence of life imprisonment. Appellant challenges the

sufficiency and the weight of the evidence. We affirm.

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1 The original caption of the case incorrectly indicated the date of the judgment
of sentence as June 29, 2017. Appellant properly appealed from the judgment
of sentence imposed on December 21, 2016 (as made final by the denial of
her post-sentence motions). (See Notice of Appeal, 6/29/17); see also
Commonwealth v. Chamberlain, 658 A.2d 395, 397 (Pa. Super. 1995)
(order denying post-sentence motions acts to finalize judgment of sentence
for purposes of appeal; appeal is taken from judgment of sentence, not order
denying post-sentence motions). We have amended the caption accordingly.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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We derive the facts of this case from the trial court’s Rule 1925(a)

opinion, filed August 29, 2017, relying on the trial court’s order and opinion

filed May 31, 2017, denying Appellant’s post-sentence motion, and our

independent review of the record.

Late in the evening of July 18, 2013, about 11:15 p.m., David Gipe was

fatally shot on the street as he arrived home after his second-shift job. He

died a few minutes later, in the arms of Appellant, his wife, Mrs. Gipe.

Suspicion soon fell on Kevin D. Rouner, who was familiar to neighbors

from his frequent visits to Appellant while her husband was away at work.

Neighbors investigating the sound of the gunshot saw a Dodge Durango

speeding away. Rouner often drove his father’s Dodge Durango when he

visited Mrs. Gipe while Mr. Gipe was at work.

When the police began their investigation, Rouner claimed that he was

a talent manager helping Mrs. Gipe’s teenage daughters pursue careers in

modeling and singing, although he had no apparent expertise or experience

in the field of entertainment. Some family and friends suspected that Rouner’s

claim of talent management, including a group field trip to Ohio to attend an

audition for the program “America’s Got Talent,” was only a pretext to spend

time with Appellant, Mrs. Gipe.

Rouner also denied owning a gun, but it turned out that before the

murder, he had borrowed a 12-gauge shotgun (consistent with the murder

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weapon) from a cousin for “indoor skeet shooting,” and never returned it.

Shortly after the police investigation began, Rouner fled to Florida.

Appellant initially sought to obscure Rouner’s role in her life, and deny

romantic involvement with him, claiming he had a medical condition (not

readily identifiable from the record before us) which she suggested made him

unsuitable as a lover. It also developed that Appellant was apparently having

simultaneous affairs with two other men, William Cardwell, and Freddy Altice.

Both Cardwell and Altice provided financial support to Appellant.

After initial denials, Rouner admitted to the police that he had been in

Chambersburg (where the Gipes lived, not home in another town) the night

of the murder, driving the Dodge Durango. Mrs. Gipe eventually admitted to

a romantic relationship with Rouner, but denied any involvement in a murder

plot.

Central cell phone records confirmed frequent calls and text messages

between Rouner and Appellant Mrs. Gipe (even though the calls had been

deleted on their phones), in particular on the night of the murder, as Rouner

approached the Gipes’ residence, a few minutes before the shooting. The cell

phone provider recovered the content of numerous messages between

Appellant and Rouner. Most were romantic or sexually suggestive, but the

night before the shooting, in an appeal to visit with Mrs. Gipe the next day,

Rouner did claim that all hell was about to break loose.

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The trial court found that the messages were also indicative of planning

and knowledge of David Gipe’s murder. (See Trial Court Opinion, 5/31/17, at

11). Appellant concedes that there was a fifty-two minute telephone

conversation on the night of the shooting. (See Appellant’s Brief, at 14).

Rouner resumed phone contact the next morning (even though, as it turned

out, Appellant had called Mr. Cardwell first). The conversation between

Rouner and Appellant assumed, without further explanation, that Mr. Gipe was

dead.

Mrs. Gipe was eventually charged with murder of the first degree (as an

accomplice to Rouner), 18 Pa.C.S.A. § 2502;2 solicitation to commit murder,

____________________________________________

2 Section 2502 provides, in pertinent part:

(a) Murder of the first degree.−A criminal homicide constitutes
murder of the first degree when it is committed by an intentional killing.

* * *

(d) Definitions.--As used in this section the following
words and phrases shall have the meanings given to them in this
subsection:

* * *

“Intentional killing.” Killing by means of poison, or by
lying in wait, or by any other kind of willful, deliberate and
premeditated killing.

18 Pa.C.S.A. § 2502(a); (d).

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18 Pa.C.S.A. § 902;3 conspiracy to commit murder, 18 Pa.C.S.A. § 903;4 and

hindering apprehension or prosecution, 18 Pa.C.S.A. § 5105.5

____________________________________________

3 Section 902 provides, in pertinent part:

(a) Definition of solicitation.−A person is guilty of
solicitation to commit a crime if with the intent of promoting or
facilitating its commission he commands, encourages or requests
another person to engage in specific conduct which would
constitute such crime or an attempt to commit such crime or which
would establish his complicity in its commission or attempted
commission.

18 Pa.C.S.A. § 902.

4 Section 903 provides, in pertinent part:

(a) Definition of conspiracy.−A person is guilty of
conspiracy with another person or persons 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.

18 Pa.C.S.A. § 903(a)(1), (2).

5 Section 5105 provides, in pertinent part:

(a) Offense defined.−A person commits an offense if, with
intent to hinder the apprehension, prosecution, conviction or
punishment of another for crime or violation of the terms of
probation, parole, intermediate punishment or Accelerated
Rehabilitative Disposition, he:

(1) harbors or conceals the other;

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Rouner was charged with first-degree murder. The two were tried

jointly. The Commonwealth’s theory of the case was that Appellant solicited

Rouner to kill her husband with the prospect that she and Rouner would then

get married, and she would have his baby.6 The jury convicted them of all

charges.7 The court sentenced Appellant to life on the murder conviction. The

remaining sentences were made concurrent.

____________________________________________

(2) provides or aids in providing a weapon, transportation,
disguise or other means of avoiding apprehension or effecting
escape;

(3) conceals or destroys evidence of the crime, or tampers
with a witness, informant, document or other source of
information, regardless of its admissibility in evidence;

(4) warns the other of impending discovery or
apprehension, except that this paragraph does not apply to a
warning given in connection with an effort to bring another into
compliance with law; or

(5) provides false information to a law enforcement officer.

18 Pa.C.S.A. § 5105.

6 Mr. Rouner referred to himself in the phone messages as “Dad” because
Appellant had told him what a great father he would be. (See Trial Ct. Op.,
5/31/17, at 11 n.8). Nevertheless, the trial court observes that the evidence
suggested it was more likely that Appellant had duped Rouner, and she
actually intended to take up a relationship with Cardwell. (See id. at 22).

7 The conviction of Appellant’s co-defendant Rouner is the subject of a
separate companion appeal at 1018 MDA 2017.

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Appellant filed a post-sentence motion challenging the weight and

sufficiency of the evidence. (See Post-Sentence Motion, 1/03/17). The trial

court denied it. (See Order and Opinion, 5/31/17). This timely appeal

followed.

Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant filed a court-ordered statement of errors, following the grant of an

extension. See Pa.R.A.P. 1925(b). The trial court filed a Rule 1925(a)

statement, on August 29, 2017, referencing and relying on its May 31, 2017

Opinion and Order, which denied Appellant’s post-sentence motion. (See

1925(a) Statement, 8/29/17); see also Pa.R.A.P. 1925(a).

Appellant presents two questions on appeal:

1. Did the trial court commit reversible error when it denied
Appellant’s Post-Sentence Motion in Arrest of Judgment when the
trial court concluded that the evidence presented by the
Commonwealth was sufficient to sustain the jury’s guilty verdicts
on Murder in the First Degree, Conspiracy to Commit Murder in
the First Degree, Solicitation to Commit Murder in the First Degree
and Hindering Apprehension?

2. Did the trial court commit reversible error when it denied
Appellant’s Post-Sentence Motion for a New Trial by finding that
her convictions for Murder in the First Degree, Conspiracy to
Commit Murder in the First Degree, Solicitation to Commit Murder
in the First Degree and Hindering Apprehension? [sic]

(Appellant’s Brief, at 4).8

____________________________________________

8 Appellant’s second question is incomplete on its face. However, the
argument section of the brief and other references in the record confirm that
her second issue is a challenge to the weight of the evidence. We review the
weight claim as if it were properly presented in the statement of questions
involved, in the interest of judicial economy.

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Our standard of review for a challenge to the sufficiency of the evidence

is well-settled.

A claim challenging the sufficiency of the evidence is a
question of law. 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. Where the evidence offered to support the
verdict is in contradiction to the physical facts, in contravention to
human experience and the laws of nature, then the evidence is
insufficient as a matter of law. When reviewing a sufficiency claim
the court is required to view the evidence in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (citations

omitted).

To convict a defendant of first degree murder, the Commonwealth
must establish a human being was unlawfully killed, the defendant
was responsible for the killing, and the defendant acted with
malice and a specific intent to kill. See 18 Pa.C.S. § 2502(a)[.],
The Commonwealth may use wholly circumstantial evidence to
discharge its burden of showing the accused intentionally killed
the victim, (citations omitted), and circumstantial evidence can
itself be sufficient to prove any or every element of the crime[.]

Commonwealth v. Perez, 93 A.3d 829, 841 (Pa. 2014), cert. denied, 135

S. Ct. 480 (2014) (case citations omitted). “[T]he Commonwealth need not

establish guilt to a mathematical certainty. [W]here no single bit of evidence

will by itself conclusively establish guilt, the verdict will be sustained where

the totality of the evidence supports the finding of guilt.” Commonwealth

v. Kinard, 95 A.3d 279, 291–92 (Pa. Super. 2014) (case citations and internal

quotation marks omitted).

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In this appeal, Appellant’s insufficiency issue fails to develop any specific

claim that there was an element of the conviction that was not proven. (See

Appellant’s Brief, at 12-18). Instead, apart from a general denial, Appellant

merely maintains that the evidence against her is “minimal,” (Appellant’s

Brief, at 14), and the conclusion that she participated in her husband’s murder

is a “grand leap.” (Id. at 15). We disagree.

Appellant misapprehends our standard of review, which views the

evidence admitted at trial in the light most favorable to the Commonwealth

as verdict winner, together with all reasonable inferences to be drawn from

that evidence. See Widmer, supra at 751.

Viewed in that light, we have no hesitation or difficulty in agreeing with

the trial court that the evidence presented to the jury was sufficient to sustain

the verdict beyond a reasonable doubt as to each of the offenses. (See

Opinion and Order, 5/31/17, at 18).

The evidence tended to show that Appellant had a problematic marriage

with a reported history of domestic disturbance. This was Mrs. Gipe’s third

marriage. There were financial difficulties. Appellant accepted financial

benefits from several men simultaneously. She had been having an affair with

Mr. Cardwell for ten years. Mr. Gipe had a life insurance policy of $137,000

from his employer. Mrs. Gipe had, but denied, an affair with Mr. Rouner.

Appellant told Mr. Rouner that she wanted to marry him and have his baby.

The pair exchanged extensive cell phone text messages, which they denied

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and tried to delete. Mrs. Gipe minimized her involvement with Rouner in her

conversations with the police.

In the totality of circumstances, we conclude that there was sufficient

evidence to establish beyond a reasonable doubt that Appellant solicited the

murder, cooperated in its execution, and tried to hinder the apprehension of

the shooter, her lover, Mr. Rouner, by misleading the police about the extent

of their relationship. Appellant’s first issue does not merit relief.

In her second claim, Appellant challenges the weight of the evidence.

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 greater
weight that to ignore them or to give them equal weight with all
the facts is to deny justice.

Widmer, supra at 751–52 (citations, internal quotation marks, and footnote

omitted). Additionally,

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

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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.

Id. at 753 (emphasis added) (citations omitted).

Here, the trial court carefully reviewed the evidence admitted at trial

and decided that the verdict was entirely consistent with the evidence

presented. (See Order and Opinion, 5/31/17, at 24). We discern no basis on

which to disturb the trial court’s conclusion.

Appellant argues that the trial court heavily relied “in its 1925 Opinion,”

on her efforts to conceal her “numerous, coterminous affairs,” as the improper

basis to conclude that the jury’s verdict was not against the weight of the

evidence. (Appellant’s Brief at 20).

The reference to the trial court’s Rule 1925(a) statement is a

transparent error. The 1925(a) statement contains no substantive argument

whatsoever, and merely refers to the Order and Opinion denying the post-

sentence motion.

Moreover, the trial court in its order and opinion makes no direct

reference to Appellant’s affairs for the weight review. (See Trial Ct. Op.,

5/31/17, at 23-24). In any event, while Appellant’s various affairs provided

some evidence of motive, and completed the history of the case, she points

us to nothing in the record which suggests that the jury was improperly

swayed in its verdict by the evidence of her marital infidelities. The argument

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is undeveloped, unsupported, and unpersuasive. We discern no basis on

which to disturb the discretion of the trial court. Appellant’s weight claim does

not merit relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 06/07/2018

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