J-S33030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellant                :
                                               :
                                               :
               v.                              :
                                               :
                                               :
    GREGORY DEAN KIMMEL                        :   No. 1515 MDA 2016

              Appeal from the Order Entered September 13, 2016
                 In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0001402-2015


BEFORE:      BENDER, P.J.E., OTT, J. and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                                 FILED AUGUST 29, 2017

        The Commonwealth appeals from the order entered September 13,

2016, in the Centre County Court of Common Pleas. 1              The trial court

precluded the Commonwealth from introducing into evidence edited excerpts

from Gregory Dean Kimmel’s recorded prison telephone conversations,

unless the recordings were offered for impeachment purposes. On appeal,

the Commonwealth contends the trial court abused its discretion when it




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   Pursuant to Pennsylvania Rule of Appellate Procedure 311(d), the
Commonwealth properly certified in its notice of appeal that the order “will
terminate or substantially handicap the prosecution.” Notice of Appeal,
9/13/2016. See Pa.R.A.P. 311(d).
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sustained Kimmel’s objection to the admission of edited portions of the

recorded calls during its case-in-chief. For the reasons below, we affirm.

         The facts underlying Kimmel’s arrest are as follows.     On August 5,

2015, at approximately 11:45 a.m., Cecil Barnhart robbed the Citizen’s Bank

on Atherton Street in State College, Pennsylvania. Barnhart appeared in a

“very noticeable” disguise, and demanded the teller give him all of the large

bills.   N.T., 9/12/2016, at 91.    During the robbery, Barnhart’s cell phone

began ringing.     He then became more aggressive, and walked behind the

teller station to grab the money himself. In doing so, Barnhart mistakenly

took a dye pack. See id. at 94-95.

         Shortly thereafter, Barnhart fled the building, and the dye pack

exploded. He then jumped into the passenger side of a waiting, blue sedan.

See id. at 116-117.       Immediately before the robbery, two women, who

worked in a nearby office building, noticed an older gentleman bent over the

hood of the blue sedan with a tire iron or crow bar in his hand.           They

observed that he seemed out of place.         When the women returned from

lunch after the robbery, the man and the car were gone. See id. at 56-60,

67-71.

         On August 7, 2015, the police received a confidential tip regarding the

robbery that led them to the home of Susan Carr Wilson, Barnhart’s

girlfriend. After obtaining a search warrant, the police went back to Wilson’s

residence and observed a blue sedan in the driveway, which had not been

there earlier that day. The officers looked in the car and saw, on the rear

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seat, two U.S. currency bills with red dye stain. See id. at 129-132. They

later learned the car was registered to Kimmel, and a subsequent search of

the car revealed red dye stain in the front interior of the vehicle. See id. at

190-192. The police also recovered an order form from Wilson’s residence,

which indicated two sandwiches had been purchased from a hoagie shop in

Potters Mills at approximately 12:13 p.m. on the same day as the robbery.2

The police later reviewed surveillance footage from the hoagie shop, and

obtained several still photos.          The individuals in the still photos were

subsequently identified as Barnhart and Kimmel. See id. at 132-140.

        Barnhart was arrested, and admitted his role in the bank robbery. He

told the police that some of the money was buried on his property, and

some was hidden under the hood of Kimmel’s car.           See id. at 202. After

finding the hidden money, the police arrested Kimmel and charged him with

robbery, theft, receiving stolen property, and three counts of conspiracy.3

Barnhart entered an open guilty plea prior to trial.         The Commonwealth

proceeded with Kimmel’s jury trial on September 12, 2016.             Barnhart’s

attorney informed the trial court that Barnhart intended to assert his Fifth




____________________________________________


2
  The hoagie shop is located 20 to 25 minutes from the bank.               N.T.,
9/12/2016, at 142.
3
    18 Pa.C.S. §§ 3701(a)(1)(vi), 3921(a), 3925(a), and 903, respectively.




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Amendment privilege against self-incrimination, and would not testify at

Kimmel’s trial.4 See N.T., 9/12/2016, at 78.

        During its case-in-chief, the Commonwealth sought to introduce into

evidence edited portions of Kimmel’s recorded prison telephone calls.

Kimmel objected,        contending the         statements constituted inadmissible

hearsay.      See id. at 215-216.              However, when the Commonwealth

successfully argued the calls were admissible as statements against interest,

Kimmel requested the recorded calls be played in their entirety so his

comments would not be taken out of context.                 See id. at 217.   The

Commonwealth then asserted it could not introduce the entire recordings

because they contained Bruton5 statements - during the calls, Kimmel
____________________________________________


4
    Barnhart’s sentencing was scheduled to take place after Kimmel’s jury trial.
5
  Bruton v. U.S., 391 U.S. 193 (1968). It is not clear to this panel whether
the introduction of Kimmel’s recorded prison calls would have violated
Bruton. Our Supreme Court has explained:

        The rule established in Bruton prevents the use of a statement
        of a non-testifying codefendant which directly inculpates one or
        more other defendants at a joint trial, but which has been
        deemed inadmissible against such defendant(s), based on the
        Sixth Amendment right to confront the witness.

Commonwealth v. Robins, 812 A.2d 514, 521 (Pa. 2002) (emphasis
added). Here, Kimmel was not tried jointly with Barnhart since Barnhart
entered a guilty plea prior to trial. Moreover, the statement at issue was not
Barnhart’s recorded confession, but rather, Kimmel’s own statement
regarding what Barnhart told police.

      Nevertheless, the Commonwealth does not raise this claim on appeal,
and, in fact, insisted at trial that it could not introduce the entire recordings
(Footnote Continued Next Page)


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stated several times that Barnhart told police Kimmel was involved in the

robbery. See id. Accordingly, the trial court conducted an in camera review

of the recorded calls to determine if the Commonwealth’s proposed excerpts

were taken out of context.          After listening to the recordings, and hearing

argument from both counsel, the court took the matter under advisement.

Following a short recess, the trial court sustained Kimmel’s objection, “with

the caveat that those tapes could possibly be used for impeachment

purposes should [Kimmel] testify.” Id. at 235. The Commonwealth asked

the court to reconsider its ruling, which the court declined. Consequently,

the Commonwealth informed the trial court that it intended to seek an

interlocutory appeal. This appeal followed.

      The sole issue raised by the Commonwealth on appeal is whether the

trial court abused its discretion in sustaining Kimmel’s objection to the

admission of seven edited segments from Kimmel’s prison phone calls. 6 The

Commonwealth insists the recordings contain inconsistent and inculpatory
                       _______________________
(Footnote Continued)

because they would violate Bruton.          See N.T., 9/12/2016, at 217.
Therefore, any challenge to the Bruton argument is waived. In any event,
as will be discussed infra, the trial court concluded the recordings did not
contain any relevant information regarding Kimmel’s culpability for the
crime.
6
  The edited recordings ranged in length from five seconds to 41 seconds
each, and totaled less than two and one-half minutes, out of the nearly 60
minutes of Kimmel’s recorded prison phone call conversations.         See
Commonwealth’s Brief at 20-22, n.2-8.




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statements made by Kimmel, which were “relevant and highly probative of

[his] guilt.”   Commonwealth’s Brief at 20.           It maintains Kimmel’s

inconsistent statements about his involvement in the bank robbery (first,

stating he was four hours away, but later placing himself at the scene)

evidence his “consciousness of guilt.”         Id. at 24.      Moreover, the

Commonwealth argues Kimmel’s statement that Barnhart received a call

“while we was doing the bank” constitutes a statement against interest and

“clearly inculpate[s]” him in the crime.   Id. at 21, 24 (emphasis added).

Furthermore, the Commonwealth disputes the trial court’s determination

that the edited portions of the calls were misleading, and could be taken out

of context. See id. at 18.

      Our standard of review of a trial court’s evidentiary ruling is well-

established:

      Admission of evidence rests within the discretion of the trial
      court, and we will not reverse absent an abuse of discretion.
      Commonwealth v. Washington, 63 A.3d 797, 805
      (Pa.Super.2013).      “Discretion is abused when 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.
      Martinez, 917 A.2d 856, 859 (Pa.Super.2007).

            Generally speaking, evidence is admissible if it is relevant,
      that is, “if it logically tends to establish a material fact in the
      case, tends to make a fact at issue more or less probable or
      supports a reasonable inference or presumption regarding a
      material fact.” Commonwealth v. Williams, 586 Pa. 553, 581,
      896 A.2d 523, 539 (2006) (citation omitted); Pa.R.E. 402.

Commonwealth v. Kinard, 95 A.3d 279, 284 (Pa. Super. 2014) (en banc).


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     Here, the Commonwealth sought to introduce only small portions of

Kimmel’s recorded prison telephone calls.     Pursuant to the Pennsylvania

Rules of Evidence, when a party seeks to introduce part of a recording, the

“adverse party may require the introduction, at that time, of any other part-

-or any other writing or recorded statement--that in fairness ought to be

considered at the same time.”     Pa.R.E. 106.   The Comment to Rule 106

makes clear:

     The purpose of Pa.R.E. 106 is to give the adverse party an
     opportunity to correct a misleading impression that may be
     created by the use of a part of a writing or recorded statement
     that may be taken out of context. This rule gives the adverse
     party the opportunity to correct the misleading impression at the
     time that the evidence is introduced.       The trial court has
     discretion to decide whether other parts, or other writings or
     recorded statements, ought in fairness to be considered
     contemporaneously with the proffered part.

Pa.R.E. 106, Comment. This Court has further explained: “Rule 106 is not

an exclusionary rule, but, rather, it merely permits the adverse party to

introduce related writings so that the documents originally introduced are

not read out of context” and the jury is not presented with “misleading or

impartial evidence.”   Commonwealth v. Passmore, 857 A.2d 697, 712

(Pa. Super. 2004), appeal denied, 868 A.2d 1199 (Pa. 2005).

     In the present case, when the Commonwealth first attempted to

present the partial recordings, Kimmel objected on hearsay grounds.      See

N.T., 9/12/2016, at 215-216.     The Commonwealth argued Kimmel’s calls

constituted statements against interest, and based on the Commonwealth’s

proffer regarding those proposed statements, the trial court agreed. See id.

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at 216-217. However, Kimmel then requested the Commonwealth introduce

the entire recordings so that his comments would not be taken out of

context. See id. at 217-218. At that point, the Commonwealth (perhaps

mistakenly) stated it could not introduce the calls in their entirety because

Kimmel’s statements would violate Bruton. See id. See also supra, n.5.

Therefore, the trial court proceeded to conduct an in camera review of the

recordings to determine whether Kimmel’s statements were relevant, and

whether the proposed edited portions were taken out of context. See N.T.,

9/12/2016, at 223-234. After a brief recess, the court sustained Kimmel’s

objection, prohibiting the Commonwealth from introducing the edited calls

during its case-in-chief. See id. at 234-235.

     The trial court explained its ruling as follows:

           After reviewing each of the recorded telephone calls in
     their entirety, the Court found [the Commonwealth’s] aim of
     introducing its edited sequence as an admission of guilt by
     [Kimmel] was misleading. None of [Kimmel’s] statements in the
     recorded telephone calls amounted to an admission or
     consciousness of guilt.     Rather, the overriding themes of
     [Kimmel’s] statements in the recorded telephone calls were how
     [Kimmel’s] life has changed since being charged with the
     underlying offenses … and that [Kimmel] is innocent of the
     crimes he has been charged with. The specific statements [the
     Commonwealth] sought to introduce were an edited sequence of
     [Kimmel] referencing facts in this case, some of which are in
     dispute. [The Commonwealth] was, in effect, attempting to
     preemptively impeach [Kimmel’s] credibility before it was even
     placed at issue.

           In summation, this Court undertook an analysis pursuant
     [to] Pa.R.E. 106 of the edited sequence of [Kimmel’s]
     statements and of the recorded telephone calls from which the
     edited sequence was created.     The Court found the edited


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     sequence of [Kimmel’s] statements was misleading and did not
     constitute an admission or consciousness of guilt as the
     [Commonwealth] proffered.        After reaching this finding, the
     Court undertook a relevancy analysis in regards to the entirety
     of the recorded telephone calls. The Court found the substance
     of the recorded phone calls was nearly wholly irrelevant to
     consequential facts in this case. Insofar as said calls referenced
     facts in this case, the Court determined the introduction of those
     edited portions would be unduly prejudicial to [Kimmel] in that
     they would impeach [his] credibility before it was even placed at
     issue.

Trial Court Opinion, 10/17/2016, at 3-4.

     Our review of the record - and in particular the recorded telephone

calls - reveals no abuse of discretion on the part of the trial court.    It is

axiomatic that “[t]he admissibility of evidence ‘depends on relevance and

probative value.’”   Commonwealth v. Bryant, 57 A.3d 191, 195 (Pa.

Super. 2012) (quotation omitted). Here, the trial court found none of the

statements the Commonwealth sought to introduce, when considered in

context, constituted “an admission or consciousness of guilt.”   Trial Court

Opinion, 10/17/2016, at 3. We agree. At no time did Kimmel state or imply

he was involved in the bank robbery. Rather, he insisted Barnhart had lied

to the police regarding Kimmel’s involvement. We note the Commonwealth

insists Kimmel’s statement that “someone called [Barnhart] while we was

doing the bank, it sure wasn’t me,” evidences his participation in the

robbery. Commonwealth’s Brief at 20-21 (emphasis added). However, at

the time he made that statement, Kimmel was referring to information that

was contained in his criminal “paperwork.”    See Commonwealth’s Exhibit

12c, recording #35643816785409 at 11:10-11:35 (Kimmel stating, “that’s


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the evidence they got on me.”).           Moreover, although Kimmel commented

several times that he was in trouble simply for giving a friend a ride, he

maintained his innocence in the bank robbery. Therefore, we agree with the

trial court’s determination that the proposed evidence was not relevant, and,

in fact would be more prejudicial than probative.7 See Trial Court Opinion,

10/17/2016, at 3-4.

       Order affirmed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2017




____________________________________________


7
  Of course, if Kimmel should decide to testify at trial, the recorded calls
could be used to impeach his credibility. See Order, 9/13/2016.



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