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Commonwealth v. Gill

Superior Court of Pennsylvania

March 28, 2017


         Appeal from the Order Entered September 2, 2016 In the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-CR-0000908-2015

          BEFORE: OLSON, RANSOM, JJ., and STEVENS, P.J.E. [*]


          STEVENS, P.J.E.

         The Commonwealth appeals from the September 2, 2016, order entered in the Court of Common Pleas of Mercer County granting Appellee Robert Peter Gill, Jr.'s amended motion in limine for the admission of evidence of similar crimes, behaviors, and/or acts.[1] We reverse and remand for further proceedings.

         The relevant facts and procedural history are as follows: On June 2, 2015, Appellee was charged by criminal complaint with burglary, theft by unlawful taking, receiving stolen property, criminal trespass, terroristic threats, tampering with or fabricating physical evidence, and intimidation of witnesses.[2] In the accompanying affidavit of probable cause, Pennsylvania State Police Trooper Charles Turik averred that, on August 26, 2013, he was assigned to investigate the report of a burglary, which occurred at a residence in French Creek Township sometime between July 26, 2013, and August 26, 2013. Trooper Turik indicated that the owner of the residence ("the victim") informed him that money, which he had been saving for his wife's care in a nursing home, totaling $40, 000.00 in one hundred dollar bills, had been removed from his home. Specifically, Trooper Turik averred as follows:

The victim advised that he had been keeping the money in a bank bag inside of a lockbox in the basement. The victim advised that the last time he knew that the money was there was on 07/26/13 when he put his monthly deposit in the box. He further advised that since that time he has not observed any sign of forced entry into his residence. The victim advised that he suspected that entry had been made via the key pad on the garage door. I asked the victim who else besides him knew the code to the garage door. The victim advised that besides himself [the] only two people [who] knew the code were his neighbor [Ms.] Prather, and an acquaintance [Appellee]. The victim advised that he did not suspect [Ms.] Prather as he had known her for over 25 years and he trusted her completely. The victim advised that he had only known [Appellee] for a few years[, ] that he had financial problems[, ] that he had lent him money in the past[, ] and that [Appellee] had recently declared bankruptcy.
[Appellee] was interviewed relative to this investigation[.] [He] admitted to having knowledge of the money[, ] where it was kept[, ] and to where the key to the lockbox was kept[.] [H]e also admitted to having been to the victim's residence during the time frame when this crime occurred and the victim was not home. [The trooper] advised [Appellee] that it had been brought to [his] attention that [Appellee] had recently purchased at [sic] pulling truck to run in the Stoneboro Fair. [Appellee] was questioned as to who he brought the truck from and what he had paid for it. [Appellee] advised that he had bought the truck from a [Mr.] Nuhfer and that he had paid $1000.00 [] for the truck.
Nuhfer was interviewed relative to this investigation and advised that he had sold the truck to [Appellee] and that [Appellee] had paid him $1900.00 [] in all $100.00 [] bills.
Further in this investigation, [the trooper] interviewed a [Mr.] Beck III who advised [the trooper] that sometime in July or August of 2013 he had been contacted by [Appellee] who requested him to give him a ride. [Mr.] Beck advised that [Appellee] directed him to a residence which he later learned was the home of the victim and that [Appellee] then exited the vehicle advising that he had to "do something for a friend, " and that he would call him to come back and pick him up when [he was] finished. [Mr.] Beck advised that upon returning to the residence when called by [Appellee], [Appellee] was in possession of several large rolls of $100.00 [] bills. [Mr.] Beck advised that [Appellee] then directed him to drive him to the Greenville, P[A] area [] in an attempt to contact a subject about purchasing a pulling truck. At some point [Appellee] had advised [Mr.] Beck that he had taken the money from the victim's residence [and] gave him $4200.00 [] to purchase a new truck[.] [Appellee told him] not [to] tell anyone about the burglary. [Mr.] Beck further advised that [Appellee] told him "I will get 20 years for taking this money what is another 10 years for killing you if you tell on me."

Affidavit of Probable Cause, filed 6/2/15.

         Counsel entered an appearance on behalf of Appellee, and on August 1, 2016, he filed a motion in limine for the admission of certain evidence. Specifically, in the motion, Appellee averred that he recently became aware that an unknown party or parties unlawfully took money from the victim's residence on or about June 23, 2016, and then illegally re-entered the residence four days later, on or about June 27, 2016. He averred that the 2016 burglary incidents appeared to be identical to the 2013 burglary, for which he was charged, such that there was a serious question raised as to the identity of the perpetrators. Specifically, he relevantly averred the following with regard to the June 23, 2016, burglary:

Interestingly, the allegation of burglary with regard to June 23, 2016[, ] appears virtually identical to the charges in the matter before this [] Court, including;
a. The alleged amount stolen is again approximately $40, 000[.00];
b. The money is again allegedly stolen from a Sentry 1106 safe (lockbox);
c. The alleged perpetrator in the June 23, 2016[, ] crime is alleged to have used the key to gain access to the safe/lockbox;
d. There were no signs of forced entry as is believed the perpetrators entered through a "typically unlocked" basement door;
e. It is believed the perpetrator is someone the victim knew and who knew about the safe; and
f. The crime is alleged to have occurred over a one month period.

Appellee's Motion In Limine, filed 8/1/16.

         With regard to the June 27, 2016, incident, Appellee admitted that it "differs in that there is an apparent attempt at forced entry as opposed to an entry through an unlocked door[;]" however, he noted that there were similarities that made the crime, at the very least, a "coincidence" to the earlier burglaries. See id.

         On August 25, 2016, Appellee filed a counseled motion entitled "Amended Motion In Limine for Admission of Evidence of Similar Crimes, Behavior and/or Acts." Therein, Appellee incorporated fully his August 1, 2016, motion in limine, and additionally averred that the alleged victim's daughter informed defense counsel that, in 1995, the victim wrongfully accused her of stealing $30, 000.00 from him. She also informed defense counsel that the victim had accused two men of breaking into his house and stealing tools. Thus, Appellee sought to introduce at his trial the circumstances and evidence relevant to the 2016 burglary, as well as the ...

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