J-S09006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA,                              :        PENNSYLVANIA
                                               :
                       Appellee                :
                                               :
                v.                             :
                                               :
    KEVIN D. ROUNER,                           :
                                               :       No. 1018 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-0001904-2013


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

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

       Appellant, Kevin D. Rouner, appeals from the judgment of sentence

imposed after his jury conviction of murder of the first degree.1 He received

a life sentence. Appellant chiefly challenges the weight of the evidence. We

affirm.

       We derive the facts of this case from the trial court’s Rule 1925(a)

opinion, filed August 30, 2017, which relied 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.              On October 26, 2016, the jury




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1 The conviction of Appellant’s co-defendant and paramour, Amy L. Gipe, is
the subject of a separate companion appeal at 1060 MDA 2017.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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convicted Appellant of the murder of David Gipe, the husband of his paramour,

Amy L. Gipe.

       Late in the evening of July 18, 2013, Appellant fatally shot David Gipe

on the street as he arrived home after his second-shift job. He died a few

minutes later, in the arms of Mrs. Gipe.

       Appellant was familiar to neighbors from his frequent visits to Mrs. Gipe

while her husband was away at work. Appellant claimed he was helping Mrs.

Gipes’ daughters pursue careers in modeling and singing, although he had no

obvious expertise or experience in the field of entertainment. Some family

and friends suspected that Appellant’s claim of talent management, including

a group field trip to Ohio to attend an audition for “America’s Got Talent,” was

only a pretext to spend time with Mrs. Gipe.

       It turned out that Mrs. Gipe was having another affair as well, with her

one-time boss, William Cardwell, and apparently a third, with one Freddy

Altice, all at the same time.2

       However, neighbors described the Dodge Durango seen in the vicinity

the night of the shooting as similar to one of the two vehicles Appellant was

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2 The Commonwealth’s theory of the case was that Mrs. Gipe solicited
Appellant to murder her husband and helped to carry out the plan, e.g., by
coordinating with Appellant through cell phone messages when her husband
was arriving home from work.       Appellant carried out the plan in the
expectation that he would start a new life with Mrs. Gipe, who told him that
she wanted to have his baby.




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known to drive from his prior visits.3 Also, various video surveillance cameras

captured footage of the vehicle as it departed from the neighborhood the night

of the murder.

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

Chambersburg (where the Gipes lived) the night of the murder, driving the

Dodge Durango. Central cell phone records confirmed frequent calls and text

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

deleted on the phones), in particular as Appellant approached the Gipes

residence, until a few minutes before the murder. They resumed the next

morning.

        Recovered messages were mostly romantic or emotionally suggestive in

nature, although the night before the shooting Appellant did text that they

should get together the next day before all hell breaks loose. Shortly after

the murder and the police began to investigate, Appellant absconded to

Florida, where he eventually gave himself up.

        Experts determined that the slug which killed Mr. Gipe came from a 12

gauge shotgun. Appellant denied owning any gun, but it turned out that he

had borrowed a 12-gauge shotgun from a cousin for “indoor skeet shooting.”

The shotgun was never recovered.               Appellant and Mrs. Gipe were tried




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3   The Durango actually belonged to Appellant’s father.

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together and convicted on all counts. The trial court imposed sentence on

December 21, 2016.

      This timely appeal followed the denial of Appellant’s post-sentence

motion challenging, inter alia, the weight of the evidence. Appellant and the

trial court both complied with Pa.R.A.P. 1925.

      Appellant presents four questions on appeal:

             1) Did the trial court err by finding that the verdict in
      [Appellant] Rouner’s case was not against the weight of the
      evidence due to the conflicting evidence regarding the angle of
      the slug which entered David Gipe’s body and the alleged
      positioning of the shooter from a tall SUV?

            2) Did the trial court err by finding that the verdict in
      [Appellant] Rouner’s case was not against the weight of the
      evidence based on the testimony given by Rebecca McCarty which
      placed the vehicle being driven by Appellant Rouner farther west
      on King Street and away from the scene at the time of the gunshot
      based on the timing of when she saw the vehicle?

            3) Did the [t]rial [c]ourt err by finding that the verdict in
      [Appellant] Rouner’s case was not against the weight of the
      evidence when the evidence presented by the Commonwealth to
      convict Appellant Rouner was almost entirely circumstantial, in
      that there was no eyewitness testimony presented, no one
      confessed to the shooting, and the weapon that fired the fatal shot
      has never been identified?

            4) Did the [t]rial [c]ourt err by denying Appellant Rouner’s
      motion for mistrial based on the Commonwealth showing a video
      to the jury during the course of trial wherein a detective
      interviewing [Appellant] Rouner mentions the death penalty in
      connection with [Appellant] Rouner multiple times thereby
      causing bias in the jury against [Appellant] Rouner[?]

(Appellant’s Brief, at 5-6).




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     Appellant’s first three issues all challenge the weight of the evidence.

We address them together.

     “An allegation that the verdict is against the weight of the evidence is

addressed to the discretion of the trial court.” Commonwealth v. Widmer,

744 A.2d 745, 751–52 (Pa. 2000). A challenge to the weight of the evidence

“concedes that the evidence is sufficient to sustain the verdict, but seeks a

new trial on the ground that the evidence was so one-sided or so weighted in

favor of acquittal that a guilty verdict shocks one’s sense of justice.”

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013) (citation omitted),

cert. denied, 134 S. Ct. 1792 (U.S. 2014).

           An appellate court’s standard of review when presented with
     a weight of the evidence claim is distinct from the standard of
     review applied by the trial court:

           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 review a trial 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.

            This does not mean that the exercise of discretion by the
     trial court in granting or denying a motion for a new trial based on
     a challenge to the weight of the evidence is unfettered. In
     describing the limits of a trial court's discretion, we have
     explained:

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            The term “discretion” imports the exercise of
            judgment, wisdom and skill so as to reach a
            dispassionate conclusion within the framework of the
            law, and is not exercised for the purpose of giving
            effect to the will of the judge. Discretion must be
            exercised on the foundation of reason, as opposed to
            prejudice, personal motivations, caprice or arbitrary
            actions.   Discretion is abused where the course
            pursued represents not merely an error of judgment,
            but where the judgment is manifestly unreasonable or
            where the law is not applied or where the record
            shows that the action is a result of partiality,
            prejudice, bias, or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations omitted).

      For an appellant to prevail on a challenge to the weight of the evidence,

“the evidence must be so tenuous, vague and uncertain that the verdict shocks

the conscience of the court.” Commonwealth v. Rodriguez, 174 A.3d 1130,

1140 (Pa. Super. 2017) (quoting Commonwealth v. Sullivan, 820 A.2d 795,

806 (Pa. Super. 2003).

      Here, after independent review, we conclude that the trial court properly

determined that the evidence did not shock the conscience of the court.

Furthermore, we find no basis to conclude that the law was not properly

applied, or that the verdict or the denial of the weight claims was a result of

partiality, prejudice, bias, or ill-will. See Clay, supra at 1055. Accordingly,

we discern no basis on which to disturb the discretion of the trial court in

denying the challenges to the weight of the evidence.

      Moreover, we note for the sake of completeness that Appellant’s weight

claims proceed on a faulty premise. As already observed, a challenge to the

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weight of the evidence “concedes that the evidence is sufficient to sustain the

verdict, but seeks a new trial on the ground that the evidence was so one-

sided or so weighted in favor of acquittal that a guilty verdict shocks one’s

sense of justice.” Lyons, supra at 1067.

      Therefore, Appellant’s complaints about perceived defects in the quality

of the evidence presented are of no moment, because they go to sufficiency,

and the sufficiency of the evidence is already conceded for the purpose of the

weight claim. It was the role of the jury sitting as factfinder to weigh the

evidence and resolve any conflicts. Additionally,

            The Commonwealth may sustain its burden by means of
      wholly circumstantial evidence. Accordingly, [t]he fact that the
      evidence establishing a defendant’s participation in a crime is
      circumstantial does not preclude a conviction where the evidence
      coupled with the reasonable inferences drawn therefrom
      overcomes the presumption of innocence. Significantly, we may
      not substitute our judgment for that of the fact finder; thus, so
      long as the evidence adduced, accepted in the light most favorable
      to the Commonwealth, demonstrates the respective elements of
      a defendant’s crimes beyond a reasonable doubt, the appellant’s
      convictions will be upheld.

Commonwealth v. Hecker, 153 A.3d 1005, 1008 (Pa. Super. 2016), appeal

denied, 169 A.3d 576 (Pa. 2017) (citation omitted).

      Here, the trial court, after a thorough review of the evidence presented

to the jury sitting as fact-finder, concluded that the evidence was not so

tenuous, vague or uncertain as to shock the conscience of the court.         We

discern no basis to disturb the trial court’s conclusion. Appellant’s first three

claims do not merit relief.


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       Finally, in his fourth claim, Appellant challenges the trial court’s denial

of his motion for a mistrial based on the Commonwealth’s playing of a video

of a police interview which mentions that the evidence against him made it a

“death penalty” case. (Appellant’s Brief, at 6).4 Appellant argues that the

reference to the death penalty in the video caused bias in the jury against

him. (See id. at 25-26). He claims that he is entitled to an acquittal or a

new trial. (See id. at 27). We disagree.

       Our standard of review of a court’s denial of a motion for mistrial is as

follows:

              A motion for a mistrial is within the discretion of the trial
       court. A mistrial upon motion of one of the parties is required only
       when an incident is of such a nature that its unavoidable effect is
       to deprive the appellant of a fair and impartial trial. It is within
       the trial court’s discretion to determine whether a defendant was
       prejudiced by the incident that is the basis of a motion for a
       mistrial. On appeal, our standard of review is whether the trial
       court abused that discretion.

Commonwealth v. Caldwell, 117 A.3d 763, 774 (Pa. Super. 2015), appeal

denied, 126 A.3d 1282 (Pa. 2015) (citations omitted).

       Preliminarily, on this issue, we note that Appellant’s objection was

untimely.     Even though the video disk had already been admitted into


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4 Appellant’s question and argument appear to assume that the interview on
the video at issue is that of himself, Kevin D. Rouner. (See Appellant’s Brief,
at 6, 25-26). In the sidebar conference on the motion for mistrial, etc., the
trial court and counsel appear to assume that the video at issue is actually of
Mrs. Gipe. (See. N.T. Trial, Day 4, 10/20/16, at 34-35). Defense counsel
concurs. (See id.). Neither the video nor a transcript of the video are
included in the record before us.

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evidence, counsel for Appellant concededly had not asked for any redactions,

and did not object until after the video was played for the jury. (See N.T.

Trial, Day 4, 10/20/16, at 32-35).

              It is axiomatic that in order to preserve an issue for
       appellate review, a party must make a timely and specific
       objection at the appropriate stage of the proceedings before the
       trial court. Failure to timely object to a basic and fundamental
       error will result in waiver of that issue. On appeal, we will not
       consider assignments of error that were not brought to the
       tribunal’s attention at a time at which the error could have been
       corrected or the alleged prejudice could have been mitigated. In
       this jurisdiction one must object to errors, improprieties or
       irregularities at the earliest possible stage of the adjudicatory
       process to afford the jurist hearing the case the first occasion to
       remedy the wrong and possibly avoid an unnecessary appeal to
       complain of the matter.

State Farm Mut. Auto. Ins. Co. v. Dill, 108 A.3d 882, 885 (Pa. Super.

2015), appeal denied, 116 A.3d 605 (Pa. 2015) (citations, internal quotation

marks and other punctuation omitted).

       Here, the trial court decided that the objection was too late. (See N.T.

Trial, Day 4, 10/20/16, at 36). We agree.

       Moreover, the claim would not merit relief. The trial court notes that

during jury selection, it had already declared that this was not a death penalty

case. (See Rule 1925(a) Opinion, 8/30/17, at 14). 5 Even so, after defense


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5 The trial court explained that it ruled out the death penalty to put the jurors’
minds at ease. (See N.T. Trial, Day 4, 10/20/16, at 36). The Commonwealth
appeared to argue categorically at trial that the case was not a death penalty
case. (See id. at 33) (“Obviously, this is not a death penalty case.”). Whether
this case could have qualified as a death penalty case is not at issue in this
appeal. Therefore, we need not decide that issue, and we decline to do so.

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counsel made his belated motion for a mistrial, the trial court proposed a

curative instruction to confirm that it was not a death penalty case, and

defense counsel agreed. (See N.T. Trial, Day 4, 10/10/16, at 36-38).

      In any event, a jury is presumed to follow a curative instruction. See

Commonwealth v. Baez, 720 A.2d 711, 722 (Pa. 1998), cert. denied, 528

U.S. 827 (1999). Appellant’s fourth issue is waived and would not merit relief.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/07/2018




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