J-S37038-15


                                  2015 PA Super 156

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

GEORGE WILSON WIDMER

                             Appellant                No. 3018 EDA 2014


          Appeal from the Judgment of Sentence September 23, 2014
               In the Court of Common Pleas of Monroe County
             Criminal Division at No(s): CP-45-CR-0000129-2014


BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

OPINION BY LAZARUS, J.:                                FILED JULY 20, 2015

        George Wilson Widmer appeals the judgment of sentence entered by

the Court of Common Pleas of Monroe County after he was convicted of

burglary of a building not adapted for overnight accommodation, 1 criminal

trespass,2 possessing an instrument of crime,3 theft by unlawful taking,4 and

criminal mischief.5 Widmer challenges the trial court’s order permitting the



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1
    18 Pa.C.S. § 3502(a)(4).
2
    18 Pa.C.S. § 3503.
3
    18 Pa.C.S. § 907.
4
    18 Pa.C.S. § 3921(a).
5
    18 Pa.C.S. § 3304(a)(5).
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Commonwealth to use his statements made during plea negotiations against

him at trial. After careful review, we affirm.

      The trial court summarized the relevant facts as follows:

      On March 21, 2014[,] during plea negotiations, the
      Commonwealth offered [Widmer] the opportunity to meet with
      his attorney, the assistant district attorney, and a trooper from
      the Pennsylvania State Police for the purpose of providing a
      sworn statement admitting to all burglaries he had committed.
      The parties agreed that in exchange for [Widmer’s] cooperation
      in helping to resolve several open files, the Commonwealth
      would recommend a jail sentence of 10 to 20 years in a State
      Correctional Institution, and not file additional charges on
      approximately 32 other cases. [Widmer], in the presence of his
      [a]ttorney, provided a sworn statement on the record of all
      burglaries he had recently committed. Twice, before [Widmer]
      made any statements, he was advised that anything said in
      conjunction with the proffer would be used against him if he
      later decided not to go through with his plea. . . . Following the
      making of the proffer, [Widmer] decided not to proceed with the
      agreement. On multiple other occasions prior to trial [Widmer]
      sought to reinstate his agreement with the Commonwealth only
      to renege before the agreement was brought before the [c]ourt.

      Counsel for [Widmer] filed a [m]otion in limine on August 21,
      2014, to prohibit the Commonwealth from using [Widmer’s]
      proffer at trial in their case-in-chief.

      On August 26, 2014, the Commonwealth filed a Motion for
      Expedited Hearing and a hearing was held on September 2,
      2014[,] where [the court] found that the Commonwealth could
      use [Widmer’s proffer in its] case-in-chief.

Trial Court Opinion, 12/30/14, at 1-2.

      The case proceeded to trial, and on September 8, 2014, a jury

convicted Widmer of the above-referenced offenses. Widmer was sentenced

on September 23, 2014, to 54 to 120 months’ incarceration.          No post-



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sentence motions were filed, and Widmer filed this timely appeal on October

22, 2014. Widmer raises one issue for our review, verbatim:

      Should the Commonwealth be permitted to use a statement
      made by [Widmer] in the course of plea negotiations under
      Pennsylvania Rule of Evidence 410 in their case in chief, or, are
      they only permitted to use said statement to impeach the
      defendant should he choose to take the stand at trial?

Brief of Appellant, at 5.

      We review a trial court’s denial of a motion in limine for an abuse of

discretion. Commonwealth v. Owens, 929 A.2d 1187, 1190 (Pa. Super.

2007). Further,

      [o]ur standard of review in addressing a challenge to the denial
      of a suppression motion is limited to determining whether the
      suppression court’s factual findings are supported by the record
      and whether the legal conclusions drawn from those facts are
      correct.    Because the Commonwealth prevailed before the
      suppression court, we may consider only the evidence of the
      Commonwealth 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 suppression court’s factual findings are
      supported by the record, we are bound by these findings and
      may reverse only if the court’s legal conclusions are erroneous.
      Where, as here, the appeal of the determination of the
      suppression court turns on allegations of legal error, the
      suppression court’s legal conclusions are not binding on an
      appellate court, whose duty it is to determine if the suppression
      court properly applied the law to the facts. Thus, the conclusions
      of law of the courts below are subject to our plenary review.

Commonwealth v. Hoppert, 39 A.3d 358, 361–62 (Pa. Super. 2012)

(citation omitted).

      Pa.R.E. 410 provides, in relevant part:

      (a) General rule. Except as otherwise provided in this rule,
      evidence of the following is not, in any civil or criminal


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       proceeding, admissible against the defendant who made the plea
       or was a participant in the plea discussions:

                                          ...

          (4) any statement made in the course of plea discussions
          with an attorney for the prosecuting authority which does
          not result in a plea of guilty or which results in a plea of
          guilty later withdrawn.

Pa.R.E. 410(a).

       As an initial matter, it is not disputed that Widmer was engaged in

plea negotiations at the time he made the proffer.                  Ordinarily, Widmer’s

statement     would       not   have   been       admissible   at     trial   during   the

Commonwealth’s case-in-chief. See Commonwealth v. Stutler, 966 A.2d

594 (Pa. Super. 2009) (finding reversible error where trial court permitted

admission     of      defendant’s   inculpatory    statements       made      during   plea

discussions). Instantly, however, the Commonwealth contends that Widmer

waived the inadmissibility of his statements as part of the bargain he struck

with the Commonwealth during plea negotiations.                 Widmer disputes the

extent to which he waived his rights under Rule 410 and argues that his

statements would have been admissible only for impeachment purposes if he

testified at trial.

       Here, Widmer had been charged in relation to a particular burglary and

was suspected of upwards of thirty other burglaries.                In exchange for his

statement under oath regarding the instant matter and other open cases,

the Commonwealth agreed to recommend a sentence of ten to twenty years’

incarceration.     Additionally, the Commonwealth predicated its plea bargain



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with Widmer upon Widmer waiving his rights pursuant to Rule 410. Before

Widmer began his proffer under oath, the assistant district attorney (ADA)

stated twice that Widmer’s statement would be admissible if Widmer later

determined not to proceed with making the plea.

     The specific language used by the ADA to address Widmer regarding

this component of the plea deal included the following:

     [The Commonwealth] is going to need you to identify the
     [burglaries] that you participated in, and any admissions that
     you make can be used against you if you determine later that
     this [plea is] not something you want to proceed with.

                                    ...

     So you understand that what you say, if you decide at some
     point after you do this proffer with us, that you no longer wish to
     do it, anything that’s on record here will be used against you.

N.T. Statement Under Oath, 3/21/14, at 3-4 (emphasis added). Widmer did

not object to this condition and proceeded to voluntarily provide the

Commonwealth with statements admitting to involvement in a large number

of burglaries he had been suspected of committing.

     After Widmer ultimately refused to proceed with the plea agreement, a

trial was held, during which the Commonwealth introduced Widmer’s

admissions in the proffer into evidence in the Commonwealth’s case-in-chief.

This was accomplished through testimony of State Police Trooper William

Skotleski, who had been present during Widmer’s plea negotiations and

proffer. Widmer now argues that his understanding of the plea negotiations,

as they pertained to Rule 410, involved waiver as to the use of his



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statements for impeachment purposes only and that neither he nor his

counsel understood that the Commonwealth intended to use his statements

in its case-in-chief.   Widmer merely “concedes[s] that if he had taken the

stand in his own defense at trial, the Commonwealth could use his proffer

against him for the purposes of impeachment.”      Brief of Appellant, at 10.

We disagree with this interpretation of the bargain struck between Widmer

and the Commonwealth.

      This Court has recognized “the importance of the plea bargaining

process as a significant part of the criminal justice system.     Under this

aspect of the system, a defendant is permitted to waive valuable rights in

exchange for important concessions by the Commonwealth when the

defendant is facing a slim possibility of acquittal.”   Commonwealth v.

Byrne, 833 A.2d 729, 735 (Pa. Super. 2003) (citations omitted).

      The facts of Byrne involved a plea bargain in which Byrne waived his

statutory right to credit for time served. In exchange, the Commonwealth

agreed to forego prosecution for first-degree murder. On appeal, this Court

rejected Byrne’s request for credit for time served, determining that Byrne’s

agreement to waive his right to such credit was “the key reason the

Commonwealth agreed to allow him to plead guilty to third[-]degree

murder.” Id. at 735. Furthermore, we determined that Byrne’s waiver of

his statutory right to such credit during plea negotiations was knowing,

voluntary, and intelligent. Id. at 736.




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     It appears that Pennsylvania courts have not expressly considered

waiver of the inadmissibility of statements made during plea negotiations

pursuant to Rule 410. However, noting that “the United States Supreme

Court has addressed a situation remarkably similar” to that of Byrne, we

referenced United States v. Mezzanatto, 513 U.S. 196 (1995), in support

of our conclusion that statutory rights can be waived in the plea negotiation

process. Byrne, supra, at 736.

     Significantly, the circumstances in Mezzanatto align with those of the

instant matter more closely than any Pennsylvania case to date. Similar to

the Pennsylvania Rules of Evidence, the Federal Rules of Evidence provide

that a defendant’s statements made during the plea process are inadmissible

against the defendant.   See F.R.E. 410.    In Mezzanatto, the prosecutor

indicated that as a condition to proceeding with plea discussions, Mezzanatto

“would have to agree that any statements he made during the meeting could

be used to impeach any contradictory testimony he might give at trial if the

case proceeded that far.” Mezzanatto, 513 U.S. at 198.

     Mezzanatto agreed to continue according to the prosecutor’s terms,

but he eventually was tried on one of the charges and took the stand in his

own defense. Mezzanatto’s statements during plea negotiations were used

to impeach him at trial. Mezzanatto appealed regarding the admissibility of

his prior statements, and, ultimately, the United States Supreme Court held

that “absent some affirmative indication that the agreement was entered

into unknowingly or involuntarily, an agreement to waive the exclusionary

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provisions of [Federal Rule of Criminal Procedure 11(e)(6) and Federal Rule

of Evidence 410] is valid and enforceable.” Id. at 210.

        Instantly, the Commonwealth made the waiver of Widmer’s Rule 410

rights a condition of its plea bargain offer to Widmer. Significantly, prior to

Widmer’s proffer, the ADA unequivocally indicated that Widmer’s statements

would be used at trial if the plea was not made as agreed.           The plain

meaning of this condition, to which Widmer agreed, is clear:         Widmer’s

statements definitively would be used.           Moreover, the Commonwealth

provided no indication that the use of Widmer’s statements would depend

upon whether Widmer decided to testify. Indeed, though Widmer asserts his

statements could have been used only to impeach him if he took the stand,

no such caveats were included in the ADA’s explanation of the waiver.

        Widmer also argues that when the Commonwealth indicated that his

statements would be used against him at trial, the Commonwealth must

have been referring to Pa.R.E. 410(b), which provides an exception to

otherwise inadmissible statements made during plea negotiations.6         This
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6
    Rule 410(b) includes the following:

        (b) Exceptions. The court may admit a statement described in
        Rule 410(a)(3) or (4):

           (1) in any proceeding in which another statement made
           during the same plea or plea discussions has been
           introduced, if in fairness the statements ought to be
           considered together[.]

Pa.R.E. 410(b).



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argument appears to conflate the Commonwealth’s condition that Widmer

waive his Rule 410 rights with an exception that would apply even if the

Commonwealth did not require such a waiver.            Additionally, Rule 410(b)

would apply only if Widmer first introduced a statement that permitted the

Commonwealth to introduce another statement from plea negotiations in the

interest of fairness.     Again, this is inconsistent with the Commonwealth’s

clear explanation that Widmer’s statements would be used against him at

trial, subject to no condition that Widmer testify.            Thus, we find this

argument to be without merit.

       Ultimately, it is clear that the rights provided for in Rule 410 are

waivable. See Byrne, supra. Furthermore, because the Commonwealth’s

presentation of the condition requiring Widmer to waive his rights under Rule

410    clearly   indicated    the    Commonwealth’s   intent   to    use   Widmer’s

statements regardless of whether he testified at trial, we find that Widmer’s

contention that neither he nor defense counsel understood the terms of the

agreement with the Commonwealth to be unpersuasive.7                Accordingly, we

cannot find that Widmer’s waiver was unknowing or involuntary.                 See

Byrne, supra, at 735. Finally, Widmer was a suspect in over thirty different
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7
  We note that if confusion existed regarding the waiver the Commonwealth
required of Widmer, defense counsel had ample opportunity to clarify the
ADA’s meaning. However, no clarification was requested. Moreover, we find
that the ADA’s explanation of the consequences should Widmer fail to follow
through with the plea was clear and unequivocal.




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burglary cases, and substantial circumstantial evidence existed to implicate

Widmer for the burglary for which he was charged in the instant matter.

Thus, Widmer’s chances of acquittal were relatively slim. See id. at 735.

     We find that Widmer’s waiver of his rights under Rule 410 meets all of

the conditions we have previously set forth regarding this type of waiver in

the plea bargaining context.   Thus, the trial court did not err in admitting

into evidence the statements Widmer made during plea negotiations with the

Commonwealth.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2015




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