Commonwealth v. Gutshall

MEMORANDUM BY GANTMAN, P.J.

Appeal from the Judgment of Sentence March 2, 2016
In the Court of Common Pleas of McKean County
Criminal Division at No(s): CP-42-CR-0000400-2015 BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E. MEMORANDUM BY GANTMAN, P.J.:

Appellant, Shad Gutshall, appeals from the judgment of sentence entered in the McKean County Court of Common Pleas, following his jury trial convictions for robbery, unlawful restraint, simple assault, and recklessly endangering another person ("REAP") and his bench trial conviction for the summary offense of harassment. We affirm.

The relevant facts and procedural history of this case are as follows. On April 26, 2015, Appellant approached an accomplice, Richard Gould, about collecting on a debt Jacob Borowsky ("Victim") allegedly owed Appellant. Mr. Gould agreed to persuade his girlfriend to drive Mr. Gould and Appellant to the home of Victim's girlfriend. Before they arrived, Appellant moved behind the back seat to the cargo area of the vehicle, and covered himself with blankets to hide from view. Victim walked out of his girlfriend's home and got into the vehicle. As he did so, Appellant placed Victim in a chokehold and pressed "something cold" to Victim's head, which Victim believed was a gun. (N.T. Trial, 1/26/16, at 10). Appellant demanded Victim empty his pockets. Victim turned over approximately $100.00 to Appellant. Appellant then told Victim to exit the vehicle. Victim went back inside his girlfriend's home, and his girlfriend called police.

On August 28, 2015, the Commonwealth charged Appellant with the listed crimes. On October 2, 2015, Appellant filed a pretrial motion for habeas corpus relief, which the court denied following a hearing. Appellant proceeded to a jury trial. On January 26, 2016, the jury convicted Appellant of robbery, unlawful restraint, simple assault, and REAP. The court also convicted Appellant of harassment, and it ordered a pre-sentence investigation ("PSI") report. The court sentenced Appellant on March 2, 2016, to five (5) to ten (10) years' incarceration for the robbery conviction, with concurrent terms of six (6) to twelve (12) months' incarceration for simple assault and REAP.

Appellant timely filed a post-sentence motion on March 10, 2016, which the court denied following a hearing on May 4, 2016. Appellant timely filed a notice of appeal. On June 6, 2016, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); Appellant timely complied on June 20, 2016.

Appellant raises the following issues for our review:

1. DID THE TRIAL COURT ERR IN PERMITTING THE COMMONWEALTH TO INTRODUCE AT TRIAL A VIDEO RECORDING CONTAINING AUDIO WHICH PURPORTED TO BE OF THE INCIDENT GIVING RISE TO THE ABOVE-LISTED CHARGES WHEN THE PROPER FOUNDATION WAS NOT LAID PRIOR TO ITS ADMISSION INTO EVIDENCE BECAUSE THE WITNESS, RICHARD GOULD, DID NOT IDENTIFY THE VOICES IN THE RECORDING, NOR DID HE PROVIDE SUFFICIENTLY SPECIFIC INFORMATION CONCERNING THE CIRCUMSTANCES OF THE VIDEO AND AUDIO RECORDING.
2. DID THE TRIAL COURT ERR WHEN IT SUSTAINED THE COMMONWEALTH'S OBJECTION TO [APPELLANT] OFFERING INTO EVIDENCE THE TESTIMONY OF AMBER STULL-TUCKER, WHO WOULD HAVE TESTIFIED SHE HEARD THE ALLEGED VICTIM STATE THAT HE DID NOT WISH TO PURSUE THE CHARGES BUT WAS BEING FORCED INTO DOING SO WHEN SUCH EVIDENCE CONSTITUTES AN ADMISSION BY A PARTY OPPONENT.
3. DID THE TRIAL COURT ERR [IN] FINDING THAT THERE WAS SUFFICIENT EVIDENCE TO PROVE THE ROBBERY CHARGE WHEN, IN SUPPORT OF THE ROBBERY CHARGE, THE COMMONWEALTH DID NOT OFFER SUFFICIENT EVIDENCE THAT [APPELLANT] THREATENED THE VICTIM WITH SERIOUS BODILY INJURY WHERE THE CIRCUMSTANCES OF [APPELLANT'S] ALLEGED CONTACT WITH THE ALLEGED VICTIM DO NOT REASONABLY GIVE RISE TO A THREAT OF SERIOUS BODILY HARM, NOR WAS EVIDENCE OF ANY INJURY PRESENTED, AND WHEN THE VICTIM TESTIFIED HE WAS PLACED IN A "CHOKE HOLD" BUT DID NOT ARTICULATE THE NATURE OF HIS FEAR; WHERE THE RECORDING PURPORTING TO BE [APPELLANT] DID NOT MAKE ANY THREAT OF SERIOUS BODILY INJURY, NOR DID THE ALLEGED VICTIM TESTIFY TO ANY THREAT BEING MADE.
4. DID THE TRIAL COURT ERR IN FINDING THAT THERE
WAS SUFFICIENT EVIDENCE TO PROVE THE SIMPLE ASSAULT CHARGE WHEN THE COMMONWEALTH DID NOT OFFER SUFFICIENT EVIDENCE THAT [APPELLANT] THREATENED THE VICTIM WITH SERIOUS BODILY INJURY WHERE THE CIRCUMSTANCES OF [APPELLANT'S] ALLEGED CONTACT WITH THE ALLEGED VICTIM DO NOT REASONABLY GIVE RISE TO A THREAT OF SERIOUS BODILY HARM, NOR WAS EVIDENCE THAT ANY INJURY OCCURRED, AND WHEN THE VICTIM TESTIFIED HE WAS PLACED IN A "CHOKE HOLD" BUT DID NOT ARTICULATE THE NATURE OF HIS FEAR; WHERE THE RECORDING PURPORTING TO BE [APPELLANT] DID NOT MAKE ANY THREAT OF SERIOUS BODILY INJURY, NOR DID THE ALLEGED VICTIM TESTIFY TO ANY THREAT BEING MADE.
5. DID THE TRIAL COURT ERR IN FAILING TO GRANT A NEW TRIAL BASED ON AFTER-ACQUIRED EVIDENCE WHEN, AFTER THE CONCLUSION OF TRIAL, STATEMENTS WERE MADE TO [APPELLANT'S] FATHER BY THE ALLEGED VICTIM THAT THE INCIDENT DID NOT HAPPEN AS HE STATED AND THAT HE FELT PRESSURED BY THE COMMONWEALTH TO MAINTAIN THAT IT DID.

After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable William F. Morgan, we conclude Appellant's issues on appeal merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, filed July 26, 2016, at 2-8) (finding: (1) Appellant's cohort, Mr. Gould, recorded cell phone video of crimes inside vehicle as they took place; video was relevant to show Appellant committed crimes consistent with Mr. Gould's testimony; Mr. Gould testified that recording was fair and accurate representation of events as they occurred, thus laying proper foundation for video's introduction; video's probative value was not outweighed by danger of unfair prejudice; court properly admitted video into evidence; (2) Appellant attempted to offer testimony at trial from Amber Stull-Tucker to testify that she had heard Victim state he did not wish to pursue charges and Commonwealth was forcing him to do so; court sustained Commonwealth's hearsay objection to proposed testimony; Appellant's contention that testimony constituted admission by party opponent is erroneous, as Victim is not "party" to case; (3-4) Victim testified at trial that when he entered vehicle, he was immediately placed into chokehold by person behind backseat of car; Victim said he felt something cold around his ear, which Victim believed was gun; Victim recognized Appellant as person assaulting Victim; Victim was told to empty his pockets and then to exit car; Victim testified he was scared and nervous during incident, and feared that he faced serious bodily injury; Commonwealth presented sufficient evidence to sustain Appellant's robbery and simple assault convictions; (5) in Appellant's post-sentence motion, he claimed Victim told Appellant's father after trial that incident did not happen as Victim testified and that Victim felt pressured by Commonwealth to maintain that it did; Appellant failed to offer Victim or Appellant's father as witnesses at hearing on post-sentence motion; thus, court had no testimony to support Appellant's claim of after-acquired evidence; court therefore properly denied Appellant's post-sentence motion). The record supports the court's decision. Accordingly, we affirm on the basis of the trial court opinion.

Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/7/2016

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