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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________


*
    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
____________________________________________


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

____________________________________________


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
____________________________________________


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

____________________________________________


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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