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Commonwealth v. Stutler

February 11, 2009


Appeal from the Judgment of Sentence entered on August 3, 2007 in the Court of Common Pleas of Fayette County, Criminal Division, Nos. 1/4, 2/4 and 3/4 of 2007, 106 of 2007.

The opinion of the court was delivered by: Musmanno, J.



¶ 1 John A. Stutler ("Stutler") appeals from the judgment of sentence imposed after he was found guilty of burglary, criminal conspiracy, criminal attempt to commit theft by unlawful taking, and criminal mischief.*fn1 We vacate the judgment of sentence and remand for a new trial.

¶ 2 The trial court set forth the pertinent facts of this case as follows:

On the evening of November 22, 2005, and into the early morning hours of November 23, 2005, [Stutler,] together with his cousin, George Lilley[, Jr.] ["Lilley"], and other individuals were partying at the Johnson residence . . . in Fayette County. Lilley arrived at that location at or about 5:00 P.M.[,] November 22, 2005[,] in his father's Chevrolet S-10 pickup truck. Later that night, [Stutler] requested that [Lilley] lend [him] [Lilley's] father's truck[,] ostensibly to visit a girl. At some time during the night[, Lilley] agreed to [Stutler's] request and provided him with the keys to the truck. In the early morning hours of November 23, 2005, [Stutler] called [Lilley] and subsequently reappeared at the Johnson residence before daylight [on] November 23, 2005. [Stutler] told [Lilley] that his father's S-10 pickup truck had been stolen. . . . [Lilley] called his father and learned that the police had already made [an] inquiry about the truck and that the truck had been used in the commission of a burglary.

On November 23, 2005, Ronald Craig ["Craig"] was residing . . . [in] a residence [] situate[d] on the opposite side of the road and approximately 1[,]200 feet from See Mor's Grill, a restaurant owned by Roxanne Kern. The restaurant had closed for business on November 22, 2005, [at] about 10:00 P.M. At or around 3:00 A.M. [on] November 23, 2005, Craig was on the porch of his home drinking a cup of coffee when he observed an S-10 pickup truck stop in front of See Mor's Grill. He observed an individual exit the passenger side of the vehicle and approach the restaurant. He observed the individual strike at the building and could hear glass being broken. Craig immediately telephoned the Kern residence and alerted Roxanne and her husband to the break-in. Craig then observed the pickup truck back up to the front of the restaurant and observed the passenger retrieve a chain from the vehicle to hook to [an] ATM machine[, which was located inside the restaurant.]

John Bevans ["Bevans"], Roxanne Kern's husband, responded to the scene in his truck approximately five minutes after receiving [Craig's] call. Upon his arrival at the restaurant, Bevans observed the pickup truck pulled up to the front door. Two men were standing in front of the pickup truck attempting to wrap a chain around the ATM machine[,] which was leaning out through the broken front door. The men were dressed in dark clothes with ski masks covering their faces. Bevans pulled his vehicle directly behind the S-10 pickup truck[,] blocking the vehicle's exit. Unable to flee in the truck, the two men fled on foot down the road in the opposite direction from the Craig residence[,] leaving behind the S-10 pickup truck and the chain. Bevans came into close enough proximity to the driver to observe through the ski mask that he was Caucasian.

On November 23, 2005, Shannon Parkinson, a friend of [Stutler], was . . . . contacted [by Stutler, who] told her that if the police came to her house[, she was to] tell them that [Lilley] had been sleeping on her couch and that his truck was stolen from her driveway. At approximately daybreak when the police arrived at her residence, she complied with [Stutler's] request and lied to the police.

On September 19, 2006, [Stutler,] while in the custody of the Pennsylvania State Police [regarding an unrelated charge of receiving stolen property,] in an interview room at the Uniontown State Police Station[,] provided the police with a statement indicating his involvement in the burglary of See Mor's Grill. [Stutler] indicated that he rented a truck from his cousin[, Lilley,] to take garbage from the Johnson residence. [Stutler] stated that he and [his accomplice] drove to See Mor's Grill, entered the building, knocked the ATM machine over and attempted to remove it from the restaurant. [Stutler] indicated that their vehicle was pinned in by another truck. They ran to [the] Johnson's house and call[ed] [Lilley] to report his truck stolen.

Trial Court Opinion, 3/19/08, at 2-5 (citations omitted).

¶ 3 As indicated by the trial court, on September 19, 2006, Stutler gave an inculpatory statement to Pennsylvania State Troopers James L. Garlick ["Trooper Garlick"] and Scott Krofcheck ["Trooper Krofcheck"] at the Uniontown barracks. See N.T., 7/9-10/07, at 85-86. Trooper Garlick testified that previously, on August 30, 2006, he and Trooper Krofcheck, while transporting Stutler regarding his arraignment on the receiving stolen property charge, "had a conversation with [Stutler] about cooperation with the Commonwealth." Id. at 23. Trooper Garlick testified that Stutler declined to cooperate at that time. Id. Of particular significance to this appeal, however, Trooper Garlick, in a Pennsylvania State Police Report dated October 21, 2006 ["PSP Report"], wrote that "Stutler[, on August 30, 2006,] advised that he would be willing to cooperate with the Commonwealth if he would receive judicial consideration for his cooperation." Docket No. 5, PSP Report at 10 (capitalization omitted).

¶ 4 At some point between August 30, 2006, and September 19, 2006, Trooper Krofcheck met with Fayette County District Attorney Nancy Vernon ["DA Vernon"] and spoke with her regarding Stutler. Id.; see also N.T., 7/9-10/07, at 31-32. DA Vernon told Trooper Krofcheck that if Stutler decided to cooperate with the Commonwealth, Troopers Krofcheck and Garlick were authorized to communicate to Stutler DA Vernon's plea bargain offer of county sentences for the receiving stolen property charge and the charges in the instant appeal as well as immunity for information regarding any other crimes in which Stutler had been involved. Docket No. 5, PSP Report at 10.*fn2 Trooper Garlick stated that on September 19, 2006, after he informed Stutler of DA Vernon's offer,*fn3 Stutler decided to cooperate with the Commonwealth. Id.; see also N.T., 7/9-10/07, at 26, 28.

¶ 5 Prior to Stutler's giving his statement, Trooper Garlick read Stutler his Miranda*fn4 rights and Stutler signed a Miranda waiver form. N.T., 7/9-10/07, at 86-89. Stutler then gave the statement detailing his involvement in the burglary. At the time Stutler gave his statement, he did not have counsel present. Id. at 98. However, after giving his statement, Stutler refused to cooperate with the Commonwealth, and the Commonwealth's offer for county time was withdrawn. Id. at 24, 27.

ΒΆ 6 At trial, Stutler sought to suppress his September 19, 2006 statement; the Commonwealth argued that it was admissible. After conducting a lengthy in camera discussion regarding the admissibility of Stutler's statement, the trial judge decided to admit the evidence over Stutler's objections. Id. at 18-34. At trial, Trooper Garlick read to the jury portions of the ...

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