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[U] Commonwealth v. Miller

Superior Court of Pennsylvania

February 19, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
RICKY L. MILLER, JR. Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence August 3, 2012 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0002605-2009

BEFORE: MUNDY, J., WECHT, J., and FITZGERALD, J. [*]

MEMORANDUM

MUNDY, J.

Appellant, Ricky L. Miller, Jr., appeals from the August 3, 2012 judgment of sentence of life imprisonment without possibility of parole, imposed after Appellant entered a guilty plea to homicide[1] generally in connection with the shooting death of Kenneth Geiger (the victim), and was found guilty of first-degree murder[2] by the trial court at the subsequent degree-of-guilt hearing.[3] After careful review, we affirm.

The factual and procedural history of the case, as summarized from the record, follows. Appellant was married to Ashley Miller, and in 2009, the couple had three children, a new home at 640 Narvon Road, Gap, Pennsylvania, and a business that afforded them a comfortable living. Appellant and Ashley were experiencing marital discord and in June 2009, Appellant asked Ashley to move out after she purchased a new vehicle, a Volvo SUV, against Appellant's wishes. Ashley and the children moved in with her parents, who lived a couple miles away from the Miller home in eastern Lancaster County.

Prior to that time, Ashley had rekindled an ongoing physical relationship with the victim, a former paramour. The victim was incarcerated for a short time for violating a protection from abuse (PFA) order entered for the protection of the victim's estranged wife and children. Ashley corresponded with the victim during his incarceration and resumed seeing him after his release.

After separating, Ashley told Appellant that she was seeing the victim but did not tell him that the relationship had been ongoing. Prior to the shooting, Appellant sent a number of threatening statements and text messages to Ashley and the victim, wherein he employed phrases such as "brains going everywhere, " "a dead man, " and "its hunting season on Creekbend Drive" (the victim's home street in Cumberland County). N.T., 8/1-3/12, at 34-39, 591. Following an incident where Appellant called Ashley and fired a gun while on the phone to make her believe he was shooting himself, Ashley removed a Smith and Wesson .357 and ammunition, including ammunition for Appellant's .45 caliber Glock, from their home when she returned to retrieve some of her belongings. She did not remove the .45 caliber Glock because she was concerned Appellant would notice. Ashley took the Smith and Wesson to her parents' home. Ashley and her parents took the Smith and Wesson to the police in Cumberland County following the shooting.

On July 20, 2009, Appellant contacted Ashley, demanding she come to their house. He revealed that he had discovered the victim's letters to Ashley, written while the victim was incarcerated. Upon her arrival, Ashley saw Appellant burning her childhood and family pictures. Subsequently, Ashley obtained a temporary PFA order. Appellant made comments to other people, including Ashley's parents and a friend, John Redcay, about his desire to kill the victim.

Prior to the shooting, Appellant travelled the 75 miles from his home in Lancaster County to the victim's place of employment and home in Cumberland County, intending to confront him. Missing the victim at work but obtaining his work schedule, Appellant spent the night in his vehicle and followed the victim after he was picked up by a co-worker the next morning to drive to his workplace. The victim noticed Appellant following them. The co-worker was able to maneuver his vehicle behind Appellant's vehicle, which avoided further confrontation that day. The victim reported the incident to the local police. The victim later contacted the police about the threatening texts he and Ashley received from Appellant. The police advised Appellant to stay away from the victim. Nevertheless, the threatening texts continued. The morning of the shooting, the police again warned Appellant to have no more contact with the victim.

The night before the shooting, Saturday, July 25, 2009, Ashley and the children encountered Appellant, driving a rented vehicle, at a gas station on her way back to her parents' home from a day of bowling with the victim. Appellant related that he was on his way to meet with the police in Cumberland County because he was in trouble because of her boyfriend. He further made the following comment. "[Y]ou just wait and see. What I am about to do will make headlines." N.T. 8/1-3/12, at 48. The next day Appellant called the victim's ex-wife and informed her he was going to the victim's house. She tried to dissuade him.

Ashley and the children returned to see the victim the next day. They picked up the victim and did some grocery shopping. Returning to the victim's house around 11:00 p.m., Ashley was driving her Volvo SUV, the victim was in the front passenger seat, and the children were in car seats in the back. When approaching the victim's residence, Ashley noticed Appellant waiting in his rented vehicle. Ashley drove toward the cul-de-sac's mailboxes when Appellant maneuvered his vehicle in a fashion that prevented her from proceeding. Appellant then approached the driver's side of Ashley's vehicle with the .45 caliber Glock in his waist band. Appellant reached in through the driver's side window past Ashley's head with the gun and shot the victim in the head. Forensic evidence suggested from the position of the wound that the victim was either flinching away from Appellant or attempting to exit the vehicle. Appellant then told Ashley, "I told you never to f---k with me, you f ------- g bitch." Id. at 62. Appellant returned to his vehicle and sped off. When Ashley drove on for help, the front passenger side door swung open. Appellant testified he saw a gun in the victim's possession, but no gun was found at the scene. The victim did not own a gun, but Appellant suggested it was the Smith and Wesson removed earlier by Ashley from the marital residence.[4]

Appellant drove to a nearby used car dealership where he attempted to unload his gun and dropped it by the side of his vehicle. He then took some sleeping pills, climbed to the top of an oil tank tower and fell asleep. Police searched Appellant's home and found a partially emptied box of Remington ammunition for a .30-06 rifle on a living room couch, a spent round of Remington ammunition found in the yard outside, and a bullet hole in the back-yard swing set. A neighbor reported hearing a gunshot the prior evening. After about 24 hours, Appellant and his vehicle were located at the dealership. The .45 caliber Glock was found on the pavement outside the vehicle. Appellant stumbled and fell off the tower, sustaining injuries. Appellant was arrested and flown to Hershey Medical Center. A search of Appellant's vehicle disclosed a blanket on the floor of the vehicle, under which was found a .30-06 rifle, loaded with four bullets, together with a Bushnell scope. Police also found a box of .45 caliber hollow point bullets that fit the .45 caliber Glock, two pillows, some bottled water, and a brief case containing the letters from the victim to Ashley, a business card from the victim's employer with his work hours written on the back, $745.00 in cash, and empty pill bottles. Additionally, $3, 980.00 in cash was found on Appellant's person. Testimony revealed that Appellant customarily used pillows and blankets to steady himself when shooting.

At the hospital, Appellant made statements to the police. Appellant stated that the victim "should be dead. I shot him with a .45 Glock from like a foot or something." Id. at 189. Appellant later related to the police that the killing had almost happened when he had followed the victim to work. Id. at 356. Appellant described the shooting to the police, indicating he "pushed" his hand past Ashley to avoid hurting anyone else. Id. at 359. He indicated an awareness that the children were in the vehicle when he shot the victim. Id. at 360. While in prison awaiting trial, Appellant made further inculpatory statements in correspondence to Ashley and to the members of a hunting club to which he had belonged.

On July 27, 2009, Appellant was charged in a criminal complaint with homicide and four counts of reckless endangerment. After a preliminary hearing held October 2, 2009, all charges were bound over to the trial court. After several continuances, Appellant was arraigned on April 15, 2010. On that date, pursuant to Pennsylvania Rule of Criminal Procedure 802, the Commonwealth filed a notice of its intent to present aggravating circumstances at sentencing, thus permitting the possibility for the imposition of a death sentence if Appellant was convicted of first-degree murder.[5]

On January 13, 2011, Appellant filed an omnibus pretrial motion. Therein, among other issues, Appellant challenged whether the Commonwealth made out a prima facie factual basis for asserting aggravating circumstances. Appellant also raised a generalized challenge to the constitutionality of Pennsylvania's death sentence statue.[6] Following a May 11, 2011 hearing, the trial court denied Appellant's omnibus pretrial motion on August 3, 2011.

On July 19, 2012, Appellant entered a plea of guilty to homicide generally. Per agreement, the Commonwealth dropped the reckless endangerment counts and withdrew its notice of aggravating circumstances, obviating the death penalty as a sentencing option in the case. N.T., 7/19/12, at 4. Pursuant to Pennsylvania Rule of Criminal Procedure 803, the case then proceeded to a degree-of-guilt hearing held on August 1-3, 2012 before the trial judge. At the conclusion of the degree-of-guilt hearing on August 3, 2012, the trial court found Appellant guilty of first-degree murder and sentenced him to life imprisonment without the possibility of parole. On August 13, 2012, the Commonwealth filed a motion to modify sentence, seeking a restitution award to the victim's Compensation Assistance Program. On August 14, 2012, the trial court granted the Commonwealth's motion and amended Appellant's sentence to include the requested restitution. Appellant did not file any post-sentence motions. Appellant filed a timely notice of appeal on August 28, 2012. On appeal, Appellant raises the following issues.[7]

I. Did the [trial] court err when it determined that the Pennsylvania death penalty statute is constitutional, both on its face and as applied?
II. Did the [trial] court err in determining that the Commonwealth presented sufficient evidence that [Appellant] committed murder in the first degree[, ] ...

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