Com. v. Kirtley, D. ( 2014 )

J-S58011-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DANNY KEITH KIRTLEY,
Appellant No. 1680 WDA 2013
Appeal from the Judgment of Sentence November 28, 2012
in the Court of Common Pleas of Washington County
Criminal Division at No.: CP-63-CR-0000462-2011
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 7, 2014
Appellant, Danny Keith Kirtley, appeals from the judgment of sentence
imposed following a jury conviction of voluntary manslaughter and two
counts of aggravated assault. Appellant challenges the denial of various
motions to suppress, other evidentiary issues, the denial of a mistrial, and
the length of his sentence. We affirm on the basis of the trial court opinion.1
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*
Retired Senior Judge assigned to the Superior Court.
1
We note that the judge who presided at the jury trial, the Honorable Janet
Moschetta Bell, retired January 4, 2013. On February 1, 2013, the case was
re-assigned to the Honorable John F. DiSalle, who authored the trial court
opinion. (See Trial Court Opinion, 5/07/13, at 15).
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In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. (See Trial Court Opinion, 5/07/23,
at 3-15). Therefore, we have no reason to restate them in detail here.
We note briefly for convenience and context that Appellant shot the
victim, Trevor Compton, a co-worker, after the victim and another co-
worker, Roy Moll, physically attacked him in an ongoing workplace dispute at
the welding shop where they all worked. While recollections of details
differed, Appellant had severely criticized his fellow workers, including a
telephone conversation in which he called them “lazy and worthless.” It may
have been overheard by the co-workers he criticized. Also, apparently
unknown to Appellant at the time, but possibly known by his co-workers, the
owner of the welding shop, David (“Matt”) Rosenbloom, had informed his
shop supervisor, Chris Goss, that he planned to fire Appellant.
In any event, when Appellant returned to the welding shop on
February 10, 2011 from an outside assignment, Compton and Moll got into a
verbal altercation with him. Appellant threw a punch which missed, turning
the argument into a fistfight.2 They beat Appellant up. He suffered injuries
to the ear, face, and head, knocking him to the ground. Then Appellant
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2
Appellant also later claimed that he was beaten with a pipe.
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stood up, took a handgun out of his pocket and fired one shot at Compton,
fatally wounding him.3 The workers called 911.
Transported to a hospital, Appellant made various statements to law
enforcement en route. At the hospital he signed an acknowledgement of his
Miranda rights and a waiver of them, and spoke to Detective John
Wybranowski, Jr.4, 5
The trial court consolidated and denied five motions to suppress
Appellant’s various statements. At trial, Appellant testified, claiming self-
defense. He maintained he was in fear for his own life. His statements were
admitted into evidence. When the prosecutor cross-examined him on the
discrepancies between his prior statements and his trial testimony,
Appellant’s defense attorney asked for a mistrial, asserting that the cross-
examination violated his constitutional right against self-incrimination. The
jury convicted Appellant of voluntary manslaughter, (and the aggravated
assaults), but acquitted him of murder of the third degree.
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3
The night before, during a search for a prowler, Appellant had produced his
handgun and shown it to his coworkers.
4
See Miranda v. Arizona, 384 U.S. 436 (1966).
5
Police also overheard telephone conversations in which Appellant told both
his wife and his girlfriend that he had to shoot the victim to protect himself.
He spoke similarly to a corrections officer at county prison who asked him
what happened to his head. Appellant previously assigned error to the
admission of these statements, but he has abandoned those claims in this
appeal.
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At sentencing, the court noted, inter alia, its review of the presentence
investigation report (PSI). (See N.T. Sentencing, 11/28/12, at 23-26). It
observed that Appellant knowingly brought a loaded pistol into the
workplace. Furthermore, Appellant, who continued to claim self-defense, did
not show any remorse, indicating to the sentencing court a low likelihood of
rehabilitation. It acknowledged the permanent impact the victim’s death
would have on his children and the rest of his family. The court sentenced
Appellant to a term of not less than seven nor more than twenty years’
incarceration, a sentence in the aggravated range. This appeal followed.
Appellant raises eight questions for our review:6
1. Whether the Court failed to give adequate consideration
to all relevant factors, including [Appellant’s] criminal, family
and work history when crafting a sentence in this matter[?]
2. Whether it was an error to deny the motion to suppress
statements that [Appellant] made to Detective Wybranowski
during an interview on February 10, 2011[?]
3. Whether it was an error to deny the motion to suppress
statements that [Appellant] made to Detective Wybranowski
while being transported to jail on February 10, 2011[?]
4. Whether it was an error to deny the motion to suppress
statements that [Appellant] made at the crime scene on
February 10, 2011[?]
5. Whether it was an error to deny [Appellant’s] objection
to two 911 audiotapes, containing hearsay, which were admitted
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6
We note that after he filed a notice of appeal, Appellant’s trial counsel was
permitted to withdraw. The court then appointed the Public Defender to
represent Appellant.
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under the res gestae exception[?] (Trial Transcript (hereinafter
TT) p. 4 — 5). [sic]
6. Whether it was an error to deny [Appellant’s] objection
to the introduction of testimony that [Appellant] possessed a
weapon and displayed the weapon the night before the incident,
as it was irrelevant and highly prejudicial[?] (TT p. 66-67, 140-
141). [sic]
7. Whether it was an error to deny [Appellant’s] objection
to the introduction of evidence regarding a conversation between
D. Rosenboom and Chris Goss regarding whether to fire
[Appellant], which was never communicated to [Appellant] and
was inadmissible hearsay[?] (TT p. 204-210). [sic]
8. Whether it was an error to deny [Appellant’s] motion for
a mistrial based on the improper questioning of [Appellant]
regarding his decision to remain silent on the day of the
incident[?] (TT p. 775). [sic]
(Appellant’s Brief, at 7).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the comprehensive, well-reasoned opinion of the trial
court, we conclude that there is no merit to the issues Appellant has raised
on appeal. The trial court opinion properly disposes of the questions
presented. (See Trial Ct. Op., at 16-30) (finding: (1) sentence was
reasonable and proper under the circumstances where court had reviewed
PSI and gave the following reasons for the sentence: Appellant’s lack of
genuine remorse, his continued self-justification, and minimization of harm
and anguish caused, blame of others, and low likelihood of rehabilitation; (2)
court properly denied suppression of the statements to Detective
Wybranowski given after Appellant signed notice and waiver of Miranda
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rights, where, in totality of circumstances, Appellant, although treated eight
hours earlier for head injuries, was in no apparent discomfort and did not
appear to be fatigued or confused; (3) court properly denied suppression of
the statements to Detective Wybranowski while being transported where
statements were spontaneous utterances and not responses to
interrogation; (4) court properly denied suppression of statements made to
responding officers at crime scene under public safety exception; (5) 911
tapes were admissible under the res gestae exception; (6) evidence of
Appellant’s display of his handgun the night before the shooting to co-worker
was highly relevant and did not unduly prejudice Appellant; (7) conversation
between Rosenboom and Goss on firing Appellant was admissible to show
course of conduct and motive; and (8) motion for mistrial was properly
denied where cross-examination of Appellant addressed inconsistencies
between his trial testimony and his prior statements, not his Fifth
Amendment right to remain silent). Accordingly, we affirm on the basis of
the trial court’s opinion.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/2014
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