Com. v. Gist, K. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KAZAIR GIST :
:
Appellant : No. 1227 EDA 2020
Appeal from the PCRA Order Entered May 14, 2020
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0003596-2012
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PANELLA, P.J.: FILED APRIL 15, 2021
Kazair Gist appeals from the order entered in the Bucks County Court of
Common Pleas on May 14, 2020, denying and dismissing his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-
9546.1 For the reasons discussed below, we find the PCRA court properly
denied Gist relief and affirm.
We previously summarized the pertinent facts on direct appeal as
follows.
On December 28, 2011, [Gist], Jermaine Jackson, Breon Powell,
Tatyana Henderson, and Danasia Bakr traveled from Trenton, New
Jersey to Levittown, Bucks County, in order to rob Daniel
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* Retired Senior Judge assigned to the Superior Court.
1 The order additionally noted that the PCRA court and the Commonwealth
agreed that Gist was entitled to relief in the form of resentencing while
concluding that all other issues raised were without merit.
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DeGennaro at gunpoint. While casing Mr. DeGennaro's residence,
Ms. Henderson placed a call to a phone number listed on a sign
advertising the sale of a used car which was parked in the rear of
Mr. DeGennaro's home. Unbeknownst to the group, Mr.
DeGennaro allowed a neighbor to park the car in his back
driveway. Ms. Henderson made contact with Mr. DeGennaro's
neighbor, Nicholas Miller, and feigned interest in the car.
Shortly thereafter, [Gist], Mr. Jackson, and Mr. Powell entered Mr.
DeGennaro's home. Ms. Henderson operated as a look-out, and
Ms. Bakr remained in the car. The three men entered Mr.
DeGennaro's residence armed with a shotgun and a nine-
millimeter handgun, and intended to recover money that the
victim purportedly owed to Mr. Jackson. During a scuffle, the
conspirators fired two shots at Mr. DeGennaro, striking him once.
Mr. DeGennaro perished from the gunshot. The three men fled
from the scene, met with the women, and returned to New Jersey.
An investigation ensued. Mr. Miller reported to police that he
received a strange phone call regarding the used vehicle parked
in Mr. DeGennaro's backyard shortly before his death.
Investigating officers reviewed phone records and call logs and
established that Ms. Henderson had placed the call to Mr. Miller
from an area within 300 yards of Mr. DeGennaro's house. A review
of Ms. Henderson's phone records also indicated that she had
communicated with Ms. Bakr and Mr. Jackson around the time of
the incident. Further investigation placed those phones, as well as
Mr. Powell's and [Gist]’s phone, in close vicinity to Mr.
DeGennaro's home at the time in question. Eventually, the police
utilized wiretaps to monitor the cellular handsets associated with
Ms. Henderson, Ms. Bakr, and Mr. Jackson wherein they recorded
evidence of the murder and attempted cover up. Ms. Bakr also
made statements to police implicating herself, Ms. Henderson, Mr.
Jackson, Mr. Powell, and [Gist], in the shooting death of Mr.
DeGennaro.
[Gist] was arrested on March 29, 2012. On August 10, 2012, he
filed an omnibus pre-trial motion seeking, in part, the suppression
of wiretap evidence obtained by the Commonwealth. Following
numerous hearings, the trial court denied that motion.
See Commonwealth v. Gist, 1370 EDA 2014 (Pa. Super. filed September
25, 2017) (unpublished memorandum).
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A jury found Gist guilty of criminal homicide, conspiracy to commit
robbery, robbery, conspiracy to commit burglary, burglary, and possession of
an instrument of crime. He was sentenced to an aggregate term of fifty-two
to one-hundred-and-four years’ imprisonment. Gist filed a post-sentence
motion which was denied.
On April 24, 2014, Gist filed a timely notice of appeal to this Court. In
an unpublished memorandum, we rejected Gist’s claims and affirmed his
judgment of sentence. See Gist, 1370 EDA 2014 (Pa. Super. filed September
25, 2017) (unpublished memorandum). On April 3, 2018, the Pennsylvania
Supreme Court denied Gist’s petition for allowance of appeal. Gist did not
appeal to the United States Supreme Court.
On April 1, 2019, Gist filed a timely pro se PCRA petition. Counsel was
appointed who filed an amended PCRA petition on October 25, 2019. Following
a hearing, the PCRA court and the Commonwealth agreed Gist was entitled to
resentencing due to his age at the time of the offense. See N.T., 12/3/2019,
at 3-4.
At the direction of the trial court, Gist then filed another amended PCRA
petition. A hearing was held on the amended petition on February 10, 2020.
Following the hearing, the PCRA court issued notice of its intent to dismiss the
PCRA petition. After receiving both a pro se and counseled answer to the notice
of intent to dismiss, the PCRA court subsequently denied Gist’s PCRA petition.
This timely appeal followed.
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On appeal, Gist asserts the PCRA court erred by denying his claim that
cell phone data, specifically call detail records of the co-defendants between
December 2011 and February 2012,2 was unconstitutionally obtained without
a warrant in violation of Riley v. California, 573 U.S. 373 (2014), United
States v. Wurie, 573 U.S. 373 (2014), and Carpenter v. United States, __
U.S. __, 138 S.Ct. 2206 (2018).3
In 2012, Pennsylvania permitted a provider of electronic communication
services to disclose "a record or other information pertaining to a subscriber
to or customer of service," other than contents of communications, to law
enforcement officers when officers used one of several means, including a
grand jury subpoena. 18 Pa.C.S.A. § 5743(c)(2). Pursuant to this statute, the
police obtained many cellphone records in this case through grand jury
subpoenas.
On June 22, 2018, the United States Supreme Court held, for the first
time, that law enforcement officials violated an individual defendant's Fourth
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2 By obtaining call detail records for the co-conspirators in this case, police
determined that each had traveled from Trenton to Levittown, where the
murder occurred, and back again on December 28, 2011, and that all were in
the area of the murder around the time of the murder.
3 In his amended PCRA petition, Gist raised additional issues including
ineffective assistance of counsel, admission of a firearm, a claim against
consolidation of his case with that of his co-defendant, and sufficiency of the
evidence. Gist additionally included these claims in his concise statement of
matters complained of on appeal. However, on appeal, Gist has only raised a
single issue, listed above, for our review.
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Amendment rights by obtaining his historical cell site location information from
a third party carrier without first obtaining a search warrant supported by
probable cause. See Carpenter, 138 S.Ct. at 2216.
According to Gist, Carpenter was issued during his direct appeal and
therefore the historical location information was illegally obtained from his
cellphone. Gist also cites Fulton, in which our Supreme Court held that
accessing information from a cellphone without a warrant is unconstitutional
under United States Supreme Court precedent, including Riley and Wurie.
According to Gist, since Carpenter was issued during his direct appeal, the
historical location information obtained from his cellphone should not have
been admitted. Gist is not entitled to relief.
A PCRA petitioner is not eligible for relief if the allegation of error has
been previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). An issue is
waived if it could have been raised but was not, before trial, at trial, during
unitary review, on appeal or in another state post-conviction proceeding. 42
Pa.C.S.A. § 9544(b).
A review of the record shows that no motion was made to suppress the
phone record evidence on fourth amendment grounds. Although Gist does not
explicitly use the terminology, his argument is essentially a suppression issue.
See Appellant’s Brief, at 19-20 (arguing admission of the cell phone data was
not harmless error and requesting a new trial without unconstitutionally
obtained evidence). Gist should have raised the issue of whether his cell phone
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records were illegally obtained in a pretrial suppression motion. See
Pa.R.Crim.P. 578, 581. Gist’s failure to do so precludes him from seeking relief
during collateral review.
Assuming, for the sake of argument, that Gist’s case was pending on
direct appeal when Carpenter was issued,4 "in order for a new rule to apply
to a case pending on direct appeal, the issue must be preserved at all stages
of adjudication, including at trial and on direct appeal." Commonwealth v.
Hays, 218 A.3d 1260, 1267 (Pa. 2019).5 Our review of the record
demonstrates that Gist did not raise this argument during trial proceedings,
in this Court on direct appeal, or in his petition for allowance of appeal to the
Pennsylvania Supreme Court. See also Appellant’s Brief, at 17-18 (admitting
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4 The Commonwealth notes that there is no case law deciding the issue of
whether a case that has been finally decided by the state appellate courts is
still considered "on direct appeal" for purposes of determining whether a new
constitutional rule applies merely because the time for filing a petition for
certiorari to the United States Supreme Court has not yet passed. It argues
that the issue of finality of the judgment of sentence under the PCRA statute
should not control the issue of what is considered "on direct appeal" for
purposes of deciding the applicability of a newly recognized constitutional
right. Specifically, the Commonwealth argues that since Gist had no recourse
in the state courts at the time Carpenter was decided, it makes little sense
for him to gain the benefit of its application. As we find Gist has failed to
preserve his issue for our review, we need not reach this matter.
5 Chief Justice Saylor joined Justice Mundy’s lead opinion, while also penning
a concurrence. In his concurrence, the Chief Justice indicated that he was
willing to re-evaluate this requirement when an appellant provided focused
advocacy on whether the preservation requirement was unfair under the
circumstances of a particular case. Therefore, Justice Mundy’s lead opinion
garnered the votes of four Justices and is binding upon this Court.
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to having not raised the issue prior to this PCRA petition, claiming this was his
first opportunity to raise the issue). Gist’s failure to preserve this issue bars
him from raising it now.
For these reasons, the PCRA court properly denied relief to Gist.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/2021
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