J. A20011/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                     v.                     :
                                            :
DANELLE RAE GEIER,                          :           No. 1438 MDA 2018
                                            :
                          Appellant         :


         Appeal from the Judgment of Sentence Entered April 23, 2018,
                in the Court of Common Pleas of Centre County
               Criminal Division at No. CP-14-CR-0001369-2016


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED JANUARY 06, 2020

        Danelle Rae Geier appeals from the April 23, 2018 aggregate judgment

of sentence of life imprisonment without the possibility of parole, imposed

after a jury found her guilty of first-degree murder, criminal conspiracy, and

tampering with or fabricating physical evidence.1         After careful review, we

affirm the judgment of sentence.

        The relevant facts and procedural history of this case, as gleaned from

the certified record, are as follows: On September 22, 2016, appellant and

co-defendant, George Gene Ishler, Jr.,2 were charged with first-degree murder

and related offenses in connection with the death of Pennsylvania State




1   18 Pa.C.S.A. §§ 2502(a), 903, and 4910(2), respectively.

2   Ishler is the half-brother of appellant’s mother.
J. A20011/19

University Professor Ronald V. Bettig (“the victim”), whose body was

discovered on the floor of a quarry pit in Centre County, Pennsylvania on

August 17, 2016.       Both appellant and Ishler gave statements to the

Pennsylvania State Police wherein they confessed to entering a conspiracy to

murder the victim and make it look like it had been an accident or a suicide.

The Commonwealth gave notice of its intention to consolidate appellant’s case

with Ishler’s case on September 22, 2016.

      On October 27, 2016, appellant filed an omnibus pretrial motion to,

inter alia, sever her case from that of Ishler.         The trial court denied

appellant’s motion on December 29, 2016. Following a joint, six-day jury trial,

a jury found appellant guilty of the aforementioned charges on April 23, 2018.

That same day, the trial court sentenced appellant to life imprisonment

without the possibility of parole. Appellant filed a timely post-sentence motion

on May 3, 2018, and a supplemental post-sentence motion on June 11, 2018.

Following hearings, the trial court denied appellant’s post-sentence motions

on August 6, 2018. This timely appeal followed.3

      Appellant raises the following issues for our review:

            A.    Did the trial court abuse its discretion and
                  unconstitutionally deny [appellant’s] due

3 The record reflects that on August 29, 2018, the trial court directed appellant
to file a concise statement of errors complained of on appeal, in accordance
with Pa.R.A.P. 1925(b), within 21 days.            Appellant filed her timely
Rule 1925(b) statement on September 10, 2018, and the trial court filed a
brief Rule 1925(a) opinion on September 24, 2018, indicating that it was
relying on the reasoning set forth in its prior August 6, 2018 opinion denying
appellant’s post-sentence motions.


                                      -2-
J. A20011/19


                  process rights to a fair trial and right to present
                  a defense when it summarily denied her request
                  to present the testimony of Jonathan E. Stube,
                  Ph.D., LPC, and Michael C. Wolff, Ph.D., CADC,
                  from the Penn State Psych Clinic, challenging
                  the voluntariness of her statements and the
                  voluntariness of her actions?

            B.    Did the trial court abuse its discretion when it
                  refused to sever a case where the defendants
                  had such clearly antagonistic defenses that the
                  opening    cross[-]examination     question  of
                  [appellant] by her co-defendant’s counsel was:
                  “You are a lying, manipulative woman who
                  would say and do anything to get whatever you
                  want?”

            C.    Did the trial court err when it failed to order a
                  new trial after the Commonwealth failed to
                  disclose prior to trial that one of its key
                  witnesses, Joel Allen Marlow, had pending
                  criminal charges in Centre County?

Appellant’s brief at 5-6 (extraneous capitalization omitted).

      Preliminarily, we recognize that

            a court has the discretion to require an expert, who
            has conducted an examination or test for a defendant
            but who has not completed a report for the defendant,
            to prepare (and the defendant to disclose) a report,
            which must provide, among other things, the subject
            matter on which the expert is expected to testify and
            a summary of the expert's opinion.          A court’s
            discretion to order the production of such a report is,
            again, dependent upon whether the defendant intends
            on calling the expert as a witness in the criminal
            proceedings. When the defendant fails to comply with
            a trial court’s order requiring preparation and
            disclosure of an expert report, the trial court may
            sanction the defendant by prohibiting the defendant
            from introducing evidence not disclosed, other than
            testimony of the defendant.



                                     -3-
J. A20011/19

Commonwealth v. Radecki, 180 A.3d 441, 452 (Pa.Super. 2018) (citations,

internal quotation marks, and footnote omitted).

      Likewise, “[a] motion for severance is addressed to the sound discretion

of the trial court, and . . . its decision will not be disturbed absent a manifest

abuse of discretion.”     Commonwealth v. Dozzo, 991 A.2d 898, 901

(Pa.Super. 2010) (citation omitted), appeal denied, 5 A.3d 818 (Pa. 2010).

Our supreme court has formulated the following three-part test for deciding

the merits of a motion to sever:

            [1] whether the evidence of each of the offenses
            would be admissible in a separate trial for the other;
            [2] whether such evidence is capable of separation by
            the jury so as to avoid danger of confusion; and, if the
            answers to these inquiries are in the affirmative,
            [3] whether the defendant will be unduly prejudiced
            by the consolidation of offenses.

Commonwealth v. Melvin, 103 A.3d 1, 29 (Pa. 2014) (citations omitted;

brackets in original).

      Lastly, we note that

            after-discovered evidence is the basis for a new trial
            when it: 1) has been discovered after the trial and
            could not have been obtained at or prior to the
            conclusion of trial by the exercise of reasonable
            diligence; 2) is not merely corroborative or
            cumulative; 3) will not be used solely for impeaching
            the credibility of a witness; and 4) is of such nature
            and character that a new verdict will likely result if a
            new trial is granted.

Commonwealth v. Chamberlain, 30 A.3d 381, 414 (Pa. 2011) (citations

and internal quotation marks omitted), cert. denied, 566 U.S. 986 (2012).



                                      -4-
J. A20011/19

      With these principles in mind, we note that the trial court authored a

comprehensive and well-reasoned opinion that properly addresses and

disposes of appellant’s three claims. Specifically, we agree that the trial court

properly exercised its discretion in precluding the introduction of the proposed

testimony of Dr. Wolfe and Dr. Stube immediately prior to the start of trial,

pursuant to Pa.R.Crim.P. 573(E). As recognized by the trial court, the defense

sought to introduce these witnesses as fact witnesses to testify regarding

appellant’s mental state, when clearly their testimony constituted untimely

expert testimony. (See trial court opinion, 8/6/18 at 3-4.) We further agree

with the trial court that appellant was not prejudiced by the trial court’s

decision to deny her motion to sever, as the record establishes that appellant

failed to satisfy the three-part test set forth in Melvin. Notably, the evidence

in this matter was clearly “capable of separation by the jury so as to avoid

danger of confusion,” as both defendants were charged with criminal

conspiracy and had previously confessed to the victim’s murder, and the

confessions were admitted at trial. (Id. at 2-3; see also Melvin, 103 A.3d

at 29.) Additionally, we agree that appellant is not entitled to a new trial on

account of the fact that she was not informed of the pending criminal charges

against Commonwealth witness Marlow, as appellant failed to satisfy the third

prong of the “after discovered evidence” test and “the only evidentiary value

of [the] charges against Marlow [was] to impeach his credibility.” (Id. at 4-5.)




                                      -5-
J. A20011/19

Accordingly, we adopt the pertinent portions of the trial court’s well-reasoned

August 6, 2018 opinion as our own and affirm on that basis.

      Judgment of sentence affirmed.

      Gantman, P.J.E. joins this Memorandum.

      McLaughlin, J. concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 01/06/2020




                                     -6-
                                                                                                             Circulated 12/10/2019 12:31 PM
Centre County Prothonotary                                                                                                                  Page 1 of 5




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                     IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA
                                           CRIMINAL DIVISION

             COMMONWEALTH OF PENNSYLVANIA

                               v.                                                No. CP-14-CR-1369-2016

             DANELLE RAE GEIER,
                        Defendant

             Attorney for the Commonwealth:                                      Bernard F. Cantorna, Esq.
             Attorney for Defendant:                                             Deborah Lux, Esq.

                                                                                                 n                     �         -,,




                                                                                                  mt:t ; i
                                                                                                 �'.!-nQ               � �

                                                  OPINION and ORDER
             Ruest, J.

                     Presently before the Court is a Post-Sentence Motion filed by Danelle Rae: · q��r :x
                                                                                             :-,,':Pl ,1;;
                                                                                                                                   rlJri
                                                                                                         --q-                      -:u
             (Defendant) on May 3, 2018 and a Supplemental Post-Sentence Motion filed on :dlme 11, '.291 £f5

             A hearing was held on May 8, 2018 regarding the Post-Sentence Motion, and on July 30, 2018

             regarding the Supplemental Post-Sentence Motion. Defendant alleges errors occurred prior to

             and during trial and requests either an arrest of judgment or a new trial. Upon consideration of

             Defendant's Motions and arguments of counsel, the Court rules as follows:

                                                       Background

                     Defendant was charged with Murder of the First Degree, 18 Pa.C.S.A. §2502(a); Murder

             of the Third Degree, 18 Pa.C.S.A. §2502(c); Aggravated Assault, 18 Pa.C.S.A. §2702(a)(1);

             Tampering with or Fabricating Evidence, 18 Pa.C.S.A. §4910(2); and Criminal Conspiracy

             (Murder of the First Degree), 18 Pa.C.S.A. §903(a)(1). The charges stemmed from the murder

             of Ronald V. Bettig on August 13, 2016. Defendant's case was consolidated with that of George

             Gene lshler, Jr.(lshler), her co-conspirator, on September 22, 2016. The Commonwealth no/

             prossed the Aggravated Assault charges.

                     Defendant filed an Omnibus Pre-Trial Motion on October 27, 2016 which included a

             Motion to Sever. The Court ruled on December 29, 2016 denying the Motion to Sever. A jury



             IBJO   ORD   OS




                                                                                                                              Appendix 118"

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Centre County Prothonotary                                                                                        Page 2 of 5


                                                         , .   I




           trial was held April 16, 2018 through April 23, 2018. Defendant was found Guilty of all charges,

            and immediately sentenced to imprisonment for the remainder of her natural life without

           eligibility for parole. Defendant timely filed a post-sentence motion.

                                                        Discussion

                   Defendant alleges the Court erred by denying a Motion to Sever and not permitting

           testimony by two defense witnesses. Defendant also alleges she was prejudiced when she was

           not informed of pending criminal charges of a prosecution witness prior to trial. Post-Sentence

           Motions shall be filed no later than 10 days after imposition of sentence. Pa.R.Crim.P.

           720(A)(1). A Post-Sentence Motion may request an arrest of judgment or a motion for a new

           trial. Pa.R.Crim.P. 720(B)(1)(a). The Court will address each motion in turn.

              I.   Motion to Sever

                   Defendant argues the Court erred in denying Defendant's Motion to Sever because she

           was prejudiced when confl!cting defenses were presented at trial. Consolidation of trial is within

           the discretion of the trial court and is only an abuse of discretion if there is prejudice and clear

           injustice against the defendant. Commonwealth v. Melvin, 2014 PA Super. 181, 103 A.3d 1,

           28.

                          Severance is governed by Pa.R.Crlm.P. Rule 583, which states: "the court may

           order separate trials ... of defendants, ... if it appears any party may be prejudiced by ...

           defendants being tried together." The Supreme Court has promulgated a three part test for

           ruling on the merits of a motion to sever:

                    1.    Whether the evidence of each of the offenses would be admissible in
                          a separate trial for the other;
                    2.    Whether such evidence is capable of separation by the jury so as to
                          avoid danger of confusion; and, if the answers to these inquiries are in
                          the affirmative,
                    3.    Whether the defendant will be unduly prejudiced by the consolidation
                          of offenses.

           Commonwealth v. Melvin, supra at 29 (citing Commonwealth v. Col/Ins, 550 Pa. 46, 703

           A.2d 418, 422 (1997)),(citing Commonwealth v. Lark, 518 Pa. 290, 302, 543 A.2d 491, 496-97

                                                               2




                                                                                                           Appendix "B-1"

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Centre County Prothonotary                                                                                          Page 3 of 5




            (1988)). When conspiracy is a charge, a joint trial is advisable, and severance should only be

            granted when the defenses are so antagonistic they are irreconcilable, that is when the jury

            would be forced to disbelieve a defendant's testimony in order to believe the co-defendant's

            testimony. Commonwealth v. Brown, 592 Pa. 376, 925 A.2d 147, 161-62 (2007). A defendant

            claiming error has the burden of demonstrating actual, not speculative, prejudice because of a

            joint trial. Id.

                      Here, Defendant argues the Court improperly denied the Motion to Sever because the

            antagonistic defenses presented at trial actually prejudiced Defendant. lshler's testimony at trial

            did not blame Defendant for the victim's death. I shier testified the victim committed suicide and

            neither defendant was responsible for his death. Defendant presented a defense blaming lshler

            for the murder, saying he planned everything and coerced her into covering up their actions.

            Their defenses are not so antagonistic they are irreconcilable.

              II.    Refusing to permit the testimony of Michael C. Wolff Ph.D., CADC and Jonathan E.
                     Stube, Ph.D. from the Pennsylvania State University Psychological Clinic

                     Defendant argues the Court erred by refusing to permit the testimony of Michael C.

            Wolff, Ph.D., CADC and Jonathan E. Stube, Ph.D. from the Pennsylvania State University

            Psychological Clinic. Defendant sought to introduce these witnesses as fact witnesses to testify

            regarding Defendant's mental state, especially her ability to be victimized and manipulated

            within the prison population. The Commonwealth objected to the introduction of these

            witnesses as inappropriate and untimely expert testimony, and there was insufficient time for the

            Commonwealth to review the reports.

                     A witness may be qualified to testify as to an expert opinion based on knowledge, skill,

            experience, training, or education if the witness's scientific, technical, or other specialized

            knowledge is beyond that of the average layperson and would help the trier of fact understand

            evidence or determine a fact in issue. Pa.RE. 702. If the Defendant intends to call an expert

            witness in a criminal trial, and the expert has not prepared a report, the court may order the


                                                              3




                                                                                                              Appendix "B-2"

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Centre County Prothonotary                                                                                         Page 4 of 5




            production of a report and require disclosure of the subject matter, facts, and expert opinion on

           which the expert is expected to testify. Pa.R.Crim.P. 573(C)(2). The court may prohibit the

            introduction of evidence not disclosed in a timely manner if deemed just under the

            circumstances. Pa.R.Crim.P. 573(E).

                    The testimony Defendant sought to elicit from these two witnesses was clearly within the

            realm of expert testimony. They would be unable to testify without using their specialized

           knowledge which is beyond what an average layperson possesses, and the testimony would be

           used to testify to Defendant's mental capacity, not any fact specific to the case. The testimony

           clearly was expert testimony, and no expert report was produced prior to the start of trial. The

           Court properly exercised its discretion in prohibiting the introduction of the proposed testimony.

             Ill.   Pending Criminal Charges of a Prosecution Witness

                    Defendant argues a new trial is proper because Defendant was not informed a

           Commonwealth witness, Joel Allen Marlow (Marlow) was criminally charged with Possession of

           Drug Paraphernalia, 35 Pa.C.S.A. §780-113(a)(32); Operation Following Suspension of

           Registration, 75 Pa.C.S.A. §1371(a); and Driving Under Suspension, 75 Pa.C.S.A. §1543(a),

           one month prior to trial. At trial, Marlow was questioned by Defendant regarding his extensive

           prior criminal history, but the new charges were not mentioned. Defendant argues the

           Commonwealth should have known about the charges and informed her prior to trial because

           the arresting officer was assigned to the same barracks as the affiant in the case.

                    The grant of a new trial on the basis of newly discovered evidence requires satisfying a

           four-prong test of whether the evidence: (1) could not have been obtained with reasonable

           diligence prior to trial; (2) is not corroborative or cumulative; (3) is not used solely to impeach a

           witness's credibility; and (4) likely would result in a different verdict. Commonwealth v. Castro,

           625 Pa. 582, 93 A.3d 818, 821 (2014). Defendant is unable to satisfy the third prong, as the

           only evidentiary value of the recent criminal charges against Marlow is to impeach his credibility.

           Additionally, the state trooper Defendant asserts worked with the state trooper who criminally

                                                             4




                                                                                                           Appendix 118-3"

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Centre County Prothonotary                                                                                      Page 5 of 5




            charged Marlow is no longer employed there, as he took a job with a different department prior

            to the charges being filed. As such, there is insufficient evidence to warrant a new trial.




                   The following order Is hereby entered:




                                                          ORDER

                   AND NOW, this 6th day of August, 2018, Defendant's Post-Sentence Motion and

            Supplemental Post-Sentence Motion are hereby DENIED.



                                                                  BY THE COURT:



                                                                 {Jn1uG0- C · �
                                                                   amela A Ruest, President Judge




                                                             5




                                                                                                          Appendix "B-4"

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