February 11, 2009
COMMONWEALTH OF PENNSYLVANIA, APPELLEE
JOHN ARTHUR STUTLER, APPELLANT
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.
BEFORE: MUSMANNO, ORIE MELVIN and KLEIN, JJ.
¶ 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.
¶ 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 transcribed statement, in which Stutler fully admitted his complicity in the crime. Id. at 90-92.
¶ 7 On July 10, 2007, the jury found Stutler guilty of all of the above-mentioned charges. On August 3, 2007, the trial court sentenced Stutler to an aggregate prison term of two to seven years on the burglary conviction and a concurrent term of one to three years on the criminal attempt conviction. Regarding the criminal conspiracy and criminal mischief convictions, the trial court accepted the guilty verdicts without imposing further penalty. Stutler then filed the instant timely appeal.
¶ 8 On appeal, Stutler raises the following questions for our review:
1. Whether the [trial] court erred in admitting [Stutler's] statements made in the course of plea discussions with the arresting officer in violation of Pennsylvania Rule of Evidence Rule 410[(a)](4)[?]
2. Whether the evidence was legally and factually insufficient to show that [Stutler] committed the acts of burglary, criminal conspiracy to commit burglary, criminal attempt-theft by unlawful taking, and criminal mischief[?]
Brief for Appellant at 3 (issues re-numbered),(capitalization omitted).
¶ 9 Stutler argues that pursuant to Pennsylvania Rule of Evidence 410(a)(4), the lower court erred in failing to suppress Stutler's September 19, 2006 statement because it was made in the course of plea negotiations. Brief for Appellant at 9. Rule 410, governing the inadmissibility of pleas, plea discussions, and related statements, provides, inter alia, as follows:
(a) General Rule. Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal 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)(4) (emphasis added).
¶ 10 Stutler points out that DA Vernon authorized Trooper Krofcheck to communicate to Stutler the offer of a county incarceration sentence in exchange for Stutler's cooperation with the Commonwealth. Brief for Appellant at 9. Stutler further points out that Trooper Garlick testified at trial that he informed Stutler that the offer for county time was made by DA Vernon. See id; see also N.T., 7/9-10/07, at 28. Stutler maintains that his decision to make his statement and cooperate with the Commonwealth was directly responsive to DA Vernon's plea bargain offer, and that absent DA Vernon's offer, Stutler would not have admitted to his involvement in the incident at See Mor's Grill. Brief for Appellant at 9-10. Stutler therefore argues that although no attorney for the prosecuting authority was physically present at the time he made his statement, it is nonetheless inadmissible under Rule 410(a)(4) "because it was with [DA Vernon's] authority that . . . Troopers [Garlick and Krofcheck] made the plea offer to [Stutler]." Id. at 9
¶ 11 The trial court found Rule 410(a)(4) to be inapplicable since "at no time did the District Attorney personally engage in any plea negotiations with [Stutler] or [his] counsel relative to this case." Trial Court Opinion, 3/19/08, at 14.*fn5 At Stutler's trial, the court similarly rejected Stutler's Motion to suppress his statement, reasoning that, inter alia, "[t]his wasn't a plea negotiation. The District Attorney wasn't there." N.T., 7/9-10/07, at 32.
¶ 12 Although there is precedent in Pennsylvania closely analogous to this situation, this precise issue appears to be a question of first impression.*fn6
¶ 13 Our standard of review, however, is well settled: the admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion. Commonwealth v. Treiber, 874 A.2d 26, 31 (Pa. 2005).
¶ 14 In Commonwealth v. Calloway, 459 A.2d 795, 800 (Pa. Super. 1983), this Court held that, generally, any statements made during plea negotiations are inadmissible in light of several important policy considerations, including the essential role that plea bargaining plays in the administration of justice. The Calloway Court observed that the critical threshold inquiry is whether or not the accused's statement or statements were, in fact, made in connection with plea negotiations. Id. In Commonwealth v. Miller, 568 A.2d 228, 230-31 (Pa. Super. 1990), this Court further elaborated that
[i]t is only those admissions arising out of and inherent in the plea discussion which are protected by the theory that to permit their admission in evidence at trial, if negotiations fail or the plea is withdrawn, would be to place a chilling effect on such discussions.
The Calloway Court, relying upon a United States Court of Appeals for the Fifth Circuit decision,*fn7 set forth the following analytical framework to determine the appropriate characterization:
[F]irst, whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion, and second, whether the accused's expectation was reasonable given the totality of the objective circumstances. Of primary importance in assessing an accused's subjective expectation of negotiating a plea is whether the Commonwealth showed an interest in participating in such discussions.In line with this reasoning, voluntary, unsolicited statements uttered by an accused to authorities cannot be said to be made in furtherance of striking a plea bargain.
Calloway, 459 A.2d at 800-01 (emphasis added),(internal citation omitted).
¶ 15 In Calloway, the appellant met with a District Attorney regarding a crime that was under investigation and stated that he would be willing to provide inculpatory information to the Commonwealth, but only if the District Attorney "made a deal with him"; the District Attorney refused the appellant's offer. Id. at 788. The Calloway Court, in response to the appellant's argument that the lower court erred by admitting into evidence his statement to the District Attorney since it was made in connection with plea negotiations, held that the appellant's statement was properly admitted since appellant was not under arrest at the time that he made his statement and "[t]he Commonwealth neither compelled the appellant to come forward nor exhibited a willingness to enter into plea negotiations with him." Id. at 801. The Calloway Court held that the appellant's statement was admissible as it was "simply unsolicited [and] unilateral[,]" and thus, "appellant could not have had a reasonable subjective expectancy that his statements were made in regard to a plea negotiation." Id.
¶ 16 In Commonwealth v. Wolf, 510 A.2d 764 (Pa. Super. 1986), the appellant, a suspect in a rape investigation, walked into a police station and informed the investigating officer that he was under arrest for an unrelated crime and would like to admit to his involvement in the rape, if the officer would offer appellant "a deal." Id. at 767. The officer informed the appellant that he was unable to make appellant any offer as plea negotiations are the province of the District Attorney. Id. The appellant nonetheless confessed his involvement in the rape to the officer. Id.
¶ 17 The Wolf Court, holding that the lower court did not err in declining to suppress appellant's inculpatory statement to the investigating officer, discussed Calloway, stating that
[w]e read Calloway to condone the admission of any offer, whether it be made to a police officer or to an assistant district attorney handling the case, provided the Commonwealth showed no interest in participating in such discussions and the statements uttered were voluntary and unsolicited.
Id. (emphasis added). The Wolf Court held that the appellant's statement was admissible under the Calloway framework, as it was not made in connection with plea negotiations and "at no time did the accused point to evidence of any 'interest' on the part of the Commonwealth to engage in any type of negotiations." Id. However, the Wolf Court further held that "[if] the Commonwealth or a representative of the authorities had initiated the inquiry, or shown an interest in resolving the case short of trial, we would not hesitate to protect the accused's actions." Id. (emphasis added).
¶ 18 However, in Wolf, former President Judge Del Sole of this Court authored a dissenting opinion in which he concluded that the majority erred in determining that the appellant's statement was not made in connection with plea negotiations. Id. at 767-69. Judge Del Sole, in reaching this conclusion, opined that significantly, the appellant in Wolf, unlike the appellant in Calloway, was under arrest at the time he made his inculpatory statement, albeit on an unrelated charge. Id. at 768-69. Similarly, in the instant case, Stutler was under arrest and in police custody at the time he made his inculpatory statement regarding the robbery of See Mor's Grill, albeit on a charge unrelated to the robbery.
¶ 19 Here, in deciding whether or not the trial court erred in admitting Stutler's September 19, 2006 statement pursuant to Rule 410(a)(4), we must first determine whether the statement was made in connection with plea negotiations. See Calloway, 459 A.2d at 800. Upon review of the record, we conclude that at the time Stutler made his statement to Trooper Garlick, Stutler "exhibited an actual subjective expectation to negotiate a plea." Id. at 800-01. We also conclude that Stutler's "expectation [that he was engaged in plea discussions with the troopers on September 19, 2006] was reasonable given the totality of the objective circumstances." Id. at 801.
¶ 20 Here, the trial court opined that it was "not privy to [Stutler's] actual subjective expectation as to whether or not he actually intended to negotiate a plea at the time of the [September 19, 2006] discussion." Trial Court Opinion, 3/19/08, at 14. However, Trooper Garlick stated in his PSP Report that Stutler, when asked on August 30, 2006, about cooperating with the Commonwealth, informed the troopers 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. Subsequently, on September 19, 2006, after Trooper Garlick communicated to Stutler the offer of county time that DA Vernon had expressed to Trooper Krofcheck, Stutler responded that he was interested in cooperating with the Commonwealth. He then gave a statement fully confessing to his involvement in the incident at See Mor's Grill. Both Stutler's refusal to cooperate with the Commonwealth until he received leniency and Trooper Garlick's communication to Stutler that DA Vernon had extended an offer of county time in exchange for Stutler's cooperation support our conclusion that Stutler did, in fact, exhibit a "reasonable subjective expectancy that his statements were made in regard to a plea negotiation." Calloway, 459 A.2d at 801.
¶ 21 Moreover, we note that unlike the situation presented in Calloway and Wolf, Stutler's inculpatory statement to Trooper Garlick was neither voluntary nor unsolicited. See Calloway, 459 A.2d at 801; Wolf, 510 A.2d at 767. The record reflects that at the time Stutler gave his statement to Trooper Garlick, Stutler was under arrest, albeit on a charge unrelated to the November 23, 2005 incident at See Mor's Grill, and Stutler made his statement in response to DA Vernon's offer of county time for his cooperation.*fn8 See Calloway, 459 A.2d at 801 (stating that the appellant's inculpatory statement to police in Calloway was admissible under Rule 410(a)(4) because "[t]he Commonwealth neither compelled appellant to come forward nor exhibited a willingness to enter into plea negotiations with him."). Here, we observe that the Commonwealth did, in fact, "compel [Stutler] to come forward [and] exhibited a willingness to enter into plea negotiations with him" as DA Vernon expressly authorized Trooper Krofcheck to communicate the plea bargain offer to Stutler in exchange for Stutler's cooperation. Id. Also, Stutler maintains that absent DA Vernon's offer, he would not have provided his statement to the troopers. Brief for Appellant at 9-10.
¶ 22 Accordingly, we conclude that Stutler's September 19, 2006 statement was made during plea negotiations and that pursuant to Rule 410(a)(4), the lower court erred in admitting it into evidence.*fn9 We further hold that the fact that neither DA Vernon nor any other attorney on behalf of the prosecuting authority was physically present at the time that Trooper Garlick communicated the offer of county time to Stutler does not alter our conclusion that Stutler's statement was made in connection with plea negotiations, falling within the purview of Rule 410(a)(4). We note that our decision today is also consistent with certain federal courts that have considered the issue*fn10 as well as other authority commenting on the admissibility of an accused's statements to police who have been authorized by the prosecuting authority to communicate to the accused a plea bargain offer.*fn11
¶ 23 Although we conclude that the admission of Stutler's September 19, 2006 statement was error, a new trial would not be required if the trial court's error was harmless and could not have contributed to the verdict. Commonwealth v. McCloskey, 656 A.2d 1369, 1377 (Pa. Super. 1995).
Trial court error will be considered harmless where
(1) the error did not prejudice the defendant or the prejudice was de minimis; or (2) the erroneously admitted evidence was merely cumulative of other, untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.
Commonwealth v. Miles, 846 A.2d 132, 137-38 (Pa. Super. 2004) (en banc) (citation omitted).
¶ 24 Here, our review of the record reveals that, apart from Stutler's inculpatory statement, the evidence presented of Stutler's guilt consisted entirely of circumstantial evidence. Specifically, the Commonwealth at trial called Lilley, who testified that on the night of November 22, 2005, he loaned his father's pickup truck to Stutler for the night in exchange for a quantity of crack cocaine. See N.T., 7/9-10/07, at 66. Police investigating the incident at See Mor's Grill found Lilley's father's pickup truck at the scene of the crime. The Commonwealth also called Shannon Parkinson, who testified that Stutler, in the early morning hours of November 23, 2005, telephoned her and asked her to lie to the police and state that Lilley had been sleeping on her couch and that Lilley's truck was stolen from her driveway. Id. at 73-74. Further, the Commonwealth called as a witness Shelly Walker, the mother of Stutler's former girlfriend, who testified that Stutler, in December 2005, stated in her presence that he had been involved in the theft of an ATM machine. Id. at 79-81. Last, at trial the Commonwealth called one eyewitness, John Bevans, who was in close enough proximity to the masked men at See Mor's Grill on November 23, 2005, to allow for an identification. However, Bevans testified that he could discern only that one of the two masked men was Caucasian. Id. at 52.
¶ 25 We conclude that the above-mentioned properly admitted circumstantial evidence was not so overwhelming that it outweighed the prejudice resulting from the compelling but erroneously admitted evidence of Stutler's inculpatory statement. Although the circumstantial evidence pointed to Stutler, there was no specific eyewitness identification of him. In addition, Stutler's defense counsel contradicted, by cross-examination, some of the aforementioned evidence and attacked the credibility of some of the Commonwealth witnesses. "If honest, fair-minded jurors might very well have brought in not guilty verdicts, an error cannot be harmless on the basis of overwhelming evidence." Commonwealth v. McGrogan, 568 A.2d 924, 931 (Pa. 1990) (internal citations omitted). In the instant case, we determine that "honest, fair-minded jurors might very well have brought in not guilty verdicts" in Stutler's trial had his statement not been admitted. See id.
¶ 26 For the reasons discussed above, we conclude that the error committed by the lower court in this case was not harmless error. First, the admission of Stutler's inculpatory statement prejudiced him, and the prejudice was not de minimis. See Miles, 846 A.2d at 137. Second, Stutler's statement was not "merely cumulative of other, untainted evidence which was substantially similar to the erroneously admitted evidence." Id. at 138. Finally, we cannot conclude that "the properly admitted and uncontradicted evidence" of Stutler's guilt "was so overwhelming and the prejudicial effect of the error [in admitting Stutler's statement] was so insignificant by comparison that the error could not have contributed to the verdict." Id.
¶ 27 Because Stutler's statement made in connection with a plea bargain was improperly admitted pursuant to Rule 410(a)(4) and was prejudicial to him, he is entitled to a new trial. Thus, we need not decide his sufficiency challenge in this appeal.
¶ 28 Judgment of sentence vacated; case remanded for new trial in accordance with this Opinion; Superior Court jurisdiction relinquished.