J-S69012-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER LEE GESSNER
Appellant No. 322 MDA 2016
Appeal from the Judgment of Sentence Entered October 14, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at Nos: CP-22-CR-0003249-2011 and
CP-22-CR-0005329-2014
BEFORE: STABILE, DUBOW, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 23, 2017
Appellant Christopher Lee Gessner appeals from the October 14, 2015
judgment of sentence entered in the Court of Common Pleas of Dauphin
County (“trial court”), following his jury conviction for criminal attempt-
homicide, aggravated assault, two counts of arson, cruelty to animals,
recklessly endangering another person (“REAP”) and criminal solicitation to
commit murder.1 Upon review, we affirm.
The facts and procedural history underlying this case are uncontested.2
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 3301(a)(1)(i), 5511(a)(2.1)(i)(A),
2705, and 902(a), respectively.
2
Unless otherwise specified, these facts come from the trial court’s January
9, 2017 opinion.
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Appellant was accused of setting his trailer on fire with his girlfriend,
(the “victim”) and her dogs inside. He poured gasoline all over the trailer
and splashed it on her. She had to run through fire to escape. The victim
was severely burned and the dogs perished in the fire. The victim described
the manner in which Appellant started the fire, detailing that she was
trapped in the trailer without a means of escape other than running through
fire. Appellant made admissions at the scene that he had started the fire
with gasoline. Arson investigators were able to determine that the fire was
started in a manner consisted with the victim’s testimony. As a result,
Appellant was charged with, among other things, criminal attempt-homicide,
aggravated assault, two counts of arson, cruelty to animals, and REAP.
While in prison awaiting trial, Appellant solicited a former cellmate to
kill the victim to make the charges go away. The informant indicated that
Appellant approached him while they were incarcerated together to discuss
killing the victim. He further noted that these conversations took place over
a two-year period and that some of them were recorded. Appellant paid the
informant $500, which he had received from his sister in connection with a
civil suit. As police investigated the solicitation, they brought Appellant in
for questioning. At the time of the interview, the police were aware that
Appellant had been deemed competent to stand trial and that he had
undergone psychological evaluations relating to the charges arising out of
the arson incident. Eventually, Appellant was charged with criminal
solicitation-murder.
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Subsequently, Appellant filed a motion to suppress, claiming, inter
alia, that he did not knowingly or intelligently waive his Miranda3 rights
when he was interviewed by police in connection with the solicitation to
commit murder charge. Following a hearing, the trial court denied
Appellant’s suppression motion on August 11, 2015. The charges were
consolidated for trial. A jury trial was held, after which Appellant was found
guilty of the above-referenced charges. On October 14, 2015, the trial court
sentenced Appellant to an aggregate sentence of 28 to 56 years’
imprisonment followed by two years’ probation.4 On October 23, 2015,
Appellant filed a timely post-sentence motion, asserting only that the verdict
was against the weight of the evidence. On January 29, 2016, the trial court
denied Appellant’s post-sentence motion. Appellant timely appealed to this
Court.
On appeal, Appellant raises two issues for our review:
I. Whether the trial court erred in failing to suppress
Appellant’s statements where Appellant’s statements were
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3
Miranda v. Arizona, 384 U.S. 436 (1966) (holding that statements
obtained from defendants during interrogation in police-dominated
atmosphere, made without full warning of applicable constitutional rights,
were inadmissible as having been obtained in violation of Fifth Amendment
privilege against self-incrimination).
4
Appellant was sentenced to 240 to 480 months’ imprisonment for criminal
attempt-homicide. He received a concurrent sentence of 5 to 10 years in
prison for aggravated assault, and two counts of arson. Appellant was
sentenced to 12 months’ probation for cruelty to animals and REAP,
respectively. Finally, he was sentenced to a consecutive term of 96 to 192
months’ imprisonment for criminal solicitation to commit murder.
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obtained in contravention of Miranda [] and where
Appellant was unable to knowingly, voluntarily, and
intelligently waive his Miranda rights?
II. Whether the trial court erred in denying Appellant’s post-
sentence motion where Appellant’s sentence is excessive
and unreasonable and constitutes too severe a punishment
in light of the gravity of the offense, Appellant’s
rehabilitative needs, and what is needed to protect the
public?
Appellant’s Brief at 7.5
In reviewing appeals from an order denying suppression,6 our standard
of review is limited to determining
whether [the trial court’s] factual findings are supported by the
record and whether [its] legal conclusions drawn from those
facts are correct. When reviewing the rulings of a [trial] court,
the appellate court considers 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. When the record supports the findings of the [trial]
court, we are bound by those facts and may reverse only if the
legal conclusions drawn therefrom are in error.
Commonwealth v. Griffin, 116 A.3d 1139, 1142 (Pa. Super. 2015).
Instantly, Appellant first argues that the trial court abused its
discretion in failing to suppress inculpatory statements he provided to police
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5
Based on our review of the record, we note that Appellant’s second issue
challenging the discretionary aspect of his sentence is waived because he
failed to raise it at sentencing or in his post-sentence motion. See
Commonwealth v. Parker, 847 A.2d 745 (Pa. Super. 2004) (holding
challenge to discretionary aspect of sentence was waived because appellant
did not object at sentencing hearing or file post-sentence motion).
6
We note that consistent with In the interest of L.J., 79 A.3d 1073 (Pa.
2013), our scope of review from a suppression ruling is limited to the
evidentiary record that was created at the suppression hearing. See id. at
1085
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during an interview in connection with solicitation to commit murder
allegations. Particularly, Appellant argues that his mental illness prevented
him from understanding the nature of the Miranda rights and knowingly and
intelligently relinquishing the same. To that end, he claims that the police
“exploited” his psychological state as they were aware of issues concerning
his competency prior to the interview. Appellant’s Brief at 19.
Generally, statements made during custodial interrogation are
presumptively involuntary, unless the accused is first advised of his Miranda
rights.7 Commonwealth v. DiStefano, 782 A.2d 574, 579 (Pa. Super.
2001), appeal denied, 806 A.2d 858 (Pa. 2002). Under Miranda, police
officers are required to apprise suspects prior to questioning that they have
the right to remain silent, that any statement made may be used against
them, and that they have the right to an attorney. Miranda, 384 U.S. at
444. “The defendant may waive effectuation of these rights, provided the
waiver is made voluntarily, knowingly and intelligently.” Id. As our
Supreme Court explained in Commonwealth v. Mitchell, 902 A.2d 430
(Pa. 2006), cert. denied, 549 U.S. 1169 (2007):
The determination of whether a confession is voluntary is a
conclusion of law and, as such, is subject to plenary review.
Moreover, the totality of the circumstances must be considered
in evaluating the voluntariness of a confession. The
determination of whether a defendant has validly waived his
Miranda rights depends upon a two-prong analysis: (1) whether
the waiver was voluntary, in the sense that defendant’s choice
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7
It is undisputed that a custodial interrogation occurred in the case sub
judice.
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was not the end result of governmental pressure, and (2)
whether the waiver was knowing and intelligent, in the sense
that it was made with full comprehension of both the nature of
the right being abandoned and the consequence of that choice.
Mitchell, 902 A.2d at 451 (citations omitted). “Only if the ‘totality of the
circumstances surrounding the interrogation’ reveals both an uncoerced
choice and the requisite level of comprehension may a court properly
conclude that Miranda rights have been waived.” Commonwealth v.
Cephas, 522 A.2d 63, 65 (Pa. Super. 1987) (emphasis added), appeal
denied, 531 A.2d 1118 (Pa. 1987), cert denied, 484 U.S. 981 (1987). To
assess voluntariness, a court should look at the following factors: (1) the
duration and means of the interrogation; (2) the physical and psychological
state of the accused; (3) the conditions attendant to the detention; (4) the
attitude of the interrogator; and (5) any and all other factors which could
drain a person’s ability to withstand suggestion and coercion. See
Commonwealth v. Nester, 709 A.2d 879, 882 (Pa. 1998). The
Commonwealth bears the burden of proof “by a preponderance of the
evidence that the waiver is voluntary, knowing, and intelligent.” Id. To
establish that, “the Commonwealth must demonstrate that the proper
warnings were given, and that the accused manifested an understanding of
these warnings.” Commonwealth v. Eichinger, 915 A.2d 1122, 1136 (Pa.
2007), cert. denied, 552 U.S. 894 (2007).
Instantly, on August 5, 2015, the trial court held a suppression
hearing, at which psychological reports were introduced into evidence. N.T.
Suppression, 8/5/15, at 5. These reports indicated that Appellant was
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diagnosed with bipolar disorder, depressive episodes, alcohol dependency
and personality disorder Id. at 5-6. The reports did not indicate that he
suffered from a psychotic or cognitive disorder; nor did either report indicate
that Appellant was incompetent to stand trial. Id. at 6-7.
Detective Dennis Woodring, Dauphin County District Attorney’s
Criminal Investigation Division (“CID”), testified on behalf of the
Commonwealth. Id. at 11. He testified that he had been with the CID for a
little over 13 years. Id. at 11-12. Detective Woodring testified that on
October 1, 2014, he and Chief John Goshert, CID, met with Appellant in a
conference room at approximately 11:15 a.m. Id. at 12-13. Detective
Woodring testified that Appellant was brought to the office by the sheriff’s
department as he had been in custody on the other charges. Id. at 13-14.
Explaining the reason for the meeting, Detective Woodring stated:
Chief Goshert had come to me prior to this and said that he had
been working a case involving [Appellant] where [Appellant]
allegedly tried to solicit people to kill [the victim]. I was
involved in the initial investigation back on July 5, 2011, when
the fire and the criminal attempt homicide charges were brought
against [Appellant], so Chief Goshert came and asked me if I
would help him with this investigation as well.
Id. at 12-13. Detective Woodring further testified that, prior to the
commencement of the meeting, after Appellant accepted an offer for a soda
and received Coca Cola, he was advised of his Miranda rights. Id. at 14.
Specifically, Detective Woodring testified that before they started to
interview Appellant, Appellant was advised that:
he had the right to remain silent; that anything he said could
and would be used against him; that he had a right to an
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attorney, and if he couldn’t afford an attorney, one would be
appointed to him at no cost through the County of Dauphin; and
if he did decide to talk to us that he could stop at any time to
consult with an attorney.
Id. at 15. Detective Woodring testified that Appellant never requested an
attorney, even after being advised “why he was there and what we had.”
Id. In particular, Detective Woodring recalled:
Chief Goshert went over the letters that [Appellant] had written
to the informants about the money that was paid, the $500 that
was paid, to have [the victim] killed. And he also advised
[Appellant] of the pictures that was staged of [the victim]
looking like she was deceased that was shown to [Appellant] by
the informant.
Id. at 15-16. Detective Woodring testified that, upon being confronted by
the evidence and advised of his constitutional rights, “[Appellant] admitted
to seeing the picture that had been brought in by one of the informants.
And he admitted that $500 was paid, but not to have her killed. It was paid
for civil—for civil suit that was supposedly taking place.” Id. at 16. At some
point during the interview, according to Detective Woodring, Chief Goshert
exited the conference room.
Q. And once Chief Goshert left the room, what was the
nature of the discussion then between you and [Appellant]?
A. Basically, he was told that, you know, hey, we had all
this evidence against him. You know, whether or not he
admitted to the charges, you know, he was still gonna be
charged with it; that the evidence was—was overwhelming. And
you know, we were talking about the letters and, again, the
photograph and the $500 that was paid. And at one point
[Appellant] asked me if I thought he needed an attorney. And I
said, “I can’t make that decision. That’s up to you.” And shortly
after that, [Appellant] asked me if the phone was on, the phone
that we have in the conference room. And I said that it was.
And I said, “Do you want to call? Do you want to make a call?”
And he said, “No,--“
Q. And when you said, “make a call,” did you offer in terms of
making a call to an attorney?
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A. Yes.
Q. Okay.
A. Yes. And he said, “No. I just wanted to make sure that it
wasn’t recording.” He was afraid that this phone was recording
our conversation. And I believe at that point I picked the phone
up and handed it to him just to hear the dial tone, and then I put
it back down.
And, you know, we continued talking for a little bit. And
then at some point he—he said—I said to him, I said, “I think,
you know, it would probably be better if you took both these
cases into court together to get them all done at one time,” so
he didn’t have one hanging—hanging in the background. And he
said something to the effect, “Well, that’ll never happen; that
[ADA] hates me. And I said, “Well, I don’t know that to be the
case.”
Id. at 17-18. Detective Woodring testified that eventually, after Chief
Goshert telephoned the ADA, it was relayed to Appellant that “no promises
could be made” about consolidating the cases. Id. at 20. Thereafter,
Appellant remarked “‘What do you guys want to know? I’ll tell you what you
want to know.’” Id. Before proceeding with the interview, according to
Detective Woodring, Appellant was provided with a written waiver of rights
form, which he reviewed and executed. Id. at 21-22. Detective Woodring
testified that the form was read to him prior to Appellant’s signing it. Id. at
22.
Upon signing the written waiver of rights form, Appellant stated that
his sister, who had provided him the $500, “was under the impression it was
for a civil matter, was being paid for a civil matter.” Id. at 21. Detective
Woodring testified:
[Appellant] admitted to sending the letters to informants
and having those discussions with the informants about having
[the victim] killed. He admitted that that’s what the $500 was
paid for; it wasn’t for a civil matter. And he also advised about
seeing the picture again, that he—he saw the photograph. And
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he basically said the reason he had it done was that he had met
[the victim] through a dating service, and she had ruined his life.
Id. Detective Woodring acknowledged that Appellant appeared to be
connecting to the conversation, was responsive in his answers to questions,
and did not “appear to be under the influence of any type of alcohol, drugs,
or anything of that nature.” Id. at 24-25. Detective Woodring testified that,
being a law enforcement officer for thirty-eight years, he did not get the
impression that Appellant was suffering from some type of mental health
episode or that he was “having difficulty comprehending the discussion.” Id.
at 25. Detective Woodring further testified that Appellant refused to provide
a tape-recorded or handwritten statement. Id. at 26. Detective Woodring
remarked that he was aware of competency proceedings involving Appellant
and that Appellant had been deemed competent to stand trial. Id.at 42.
On cross-examination, Detective Woodring remarked that Appellant
had received two Miranda warnings: an oral one prior to the start of the
interview and a written one prior to his confession. Id. at 30-31. Detective
Woodring clarified that it was he who suggested to Appellant that the cases
could be consolidated. Id. at 33. Detective Woodring also emphasized that
he had not reviewed any psychological reports on Appellant prior to or at the
time of the interview. Id. at 34. He, however, acknowledged that he was
aware that Appellant had undergone a psychological evaluation. Id. at 43.
Detective Woodring also acknowledged that Appellant appeared to be
concerned at the interview that charges could be brought against his sister.
Id. at 35.
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Based on the foregoing, and considering the totality of the
circumstances here, we conclude that the trial court did not err in denying
Appellant’s motion to suppress inculpatory statements made on October 1,
2014. There are no indications that Appellant did not understand fully the
Miranda rights to render his waiver of them constitutionally infirm. 8 The
record indicates that, although Appellant suffered from diagnosed mental
problems, they did not affect his cognitive abilities. See Commonwealth v.
Logan, 549 A.2d 531, 537 (Pa. 1988) (stating that defendants with
psychological problems are indeed able to make a valid waiver of their
Miranda rights); accord Commonwealth v. Bracey, 461 A.2d 775, 790
n.7 (Pa. 1983) (finding that a defendant who was prone to hallucinations
could make a valid waiver of her constitutional rights). In fact, here
Appellant was given the Miranda warnings twice. He received them at the
start of the interview after being advised of the accusations against him.
Appellant, however, waived his right against self-incrimination. He denied
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8
Appellant does not challenge the voluntariness of his Miranda waiver.
Even if he had, the challenge would have failed. Here, the record would
belie any suggestion that Appellant was coerced into relinquishing his
Miranda rights. For instance, the investigating officers provided Appellant
soda at the start of the interview and invited him to telephone an attorney
during the interview. According to the suppression transcript, the interview
lasted from 11:15 a.m. until 12:30 p.m. See N.T. Suppression, 8/5/15, at
13, 36. Moreover, even though it was suggested to Appellant that it might
be beneficial for him to consolidate the cases, prior to Appellant’s giving of
the inculpatory statements, the investigating officers informed him that no
guarantees could be made about consolidation.
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the accusations, claiming that the $500 was paid in connection with a civil
suit. Appellant again was given the Miranda warning after he indicated to
Detective Woodring and Chief Goshert that he was ready to confess. The
second time around, Appellant received a waiver form, which was read to
him prior to him affixing his signature thereto. Further, the record indicates
that Appellant connected to the conversation, was responsive in his answers
and did not labor under the influence of alcohol or drugs.
The trial court reasoned:
[W]hile Detective Woodring and Chief Goshert did inquire
about consolidating the cases, and indicated to Appellant that
they felt it would be in his best interest; the district attorney
made no guarantee of such outcome. Nothing in the facts
elicited at the suppression hearing suggests a coercive or
manipulative interrogation. [Detective] Woodring was aware of
at least one psychological evaluation that did not broach any
concerns over capacity; the diagnoses were not of a sort that
would impair cognitive abilities.
Appellant was incarcerated on prior charges which would
have exposed him to Miranda rights and what they entailed. He
was Mirandized prior to any conversation regarding the
solicitation investigation and again given a written Miranda
rights waiver, which he signed, prior to the giving an official
statement to police.
Trial Court Opinion, 1/9/17, at 6. Accordingly, Appellant is not entitled to
relief.
Appellant cites only a single case, i.e., Cephas, supra, to support his
contention that he did not knowingly and intelligently relinquish his right
against self-incrimination guaranteed by the Fifth Amendment to the United
States Constitution. We, however, find Cephas distinguishable, given the
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facts of this case as recited above. The following facts guided the decision
Cephas:
[The defendant] was arrested on October 7, 1983 and
charged with rape, indecent assault, indecent exposure, unlawful
restraint, terroristic threats, and simple assault.
....
[The defendant] was arrested on the basis of the victim’s
description. He was taken to the Sex Crimes Unit of the
Philadelphia Police. At the time of his arrest, [the defendant]
was a street person living in an alley near his foster family’s
home. He had a long history of mental illness and
hospitalization for this illness. He had consistently been
diagnosed as a schizophrenic. His most recent hospitalization
was about two weeks before his arrest after he was seen in a
tree near an elementary school screaming at the school children
and yelling for the principal to meet his demands.
[The defendant] was known to the police to be suffering
from mental illness. When the arresting officers came to
observe the alley where [the defendant] lived, his foster sister
begged the officer to find help for [him] and to have him put
away somewhere for his mental illness.
Upon his arrival at the Sex Crimes Unit, [the defendant]
was interviewed for background information. He was placed in
handcuffs in a small detention room. He exhibited bizarre and
psychotic behavior. The entire time he was in the detention
room, he kicked the walls and the door, and he kept yelling
inane comments, including that he was Ed Rendell’s son and that
he had dinner with Mr. Rendell the night before at Mr. Rendell’s
home. Mr. Rendell is the former District Attorney of Philadelphia
and he is white. [The defendant] is black.
[The defendant] was initially interrogated in an office by a
detective who knew that [he] suffered from mental illness.
During this interrogation, [the defendant] acted childishly. He
refused to sit unless given a cigarette or soda and cookies. The
detective ceased the interrogation and returned [the defendant]
to the detention room where [he] continued his bizarre behavior.
[The defendant] was interrogated again and he continued
to display his childlike behavior. He was read the warnings
mandated by [Miranda], and he made incriminating statements.
Cephas, 522 A.2d at 64. The defendant sought to suppress the inculpatory
statements. Following a hearing, the trial court agreed, granting the
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defendant’s suppression motion. The Commonwealth appealed to this Court.
On appeal, we affirmed. In so doing, we concluded that the defendant
suffered from chronic undifferentiated schizophrenia and that his mental
illness prevented him from understanding the Miranda warnings. Id. at 65.
We also agreed with the trial court’s conclusion that, based on the evidence,
the defendant was incapable of making a knowing and intelligent waiver of
his privilege against self-incrimination. Id.
Unlike the court in Cephas, the uncontradicted facts of this case, as
found by the trial court, indicate that Appellant’s ability to knowingly and
voluntarily waive his right against self-incrimination was not compromised
by his mental condition. Indeed, the trial court specifically determined that
Appellant’s psychological or cognitive capacities were not affected by his
mental condition. See Trial Court Opinion, 1/9/17, at 5 (noting that
Appellant “appeared coherent” during the interview, “seemed to be
connecting the dots,” and was “responsive. . . . [Appellant] did not appear to
be suffering from any sort of mental health episode that would hamper him
from comprehending the discussion.”).
In sum, we conclude that the trial court did not err in denying
Appellant’s suppression motion.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/23/2017
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