Com. v. Gerber, G.
3201 EDA 2016
| Pa. Super. Ct. | Nov 21, 2017Background
- Defendant Gary Lee Gerber stabbed Robert Hagan in a parked car (admitted at trial) and later drove the victim’s vehicle; the victim was found 290 feet away with crushing and pattern injuries consistent with being run over.
- Gerber claimed he stabbed in self-defense (believing he was being sexually assaulted) and that he did not know he struck the victim with the vehicle (fog, intoxication, terror); he had earlier entered and later withdrew a guilty plea to third-degree murder.
- Trial evidence included Pennsylvania State Police Sergeant DeAndrea’s testimony about scene observations (blood drops, tire impressions, a string on the vehicle) and the Commonwealth’s forensic pathologist; jury convicted Gerber of first-degree murder and he received life imprisonment.
- Gerber’s first PCRA petition raised multiple ineffective-assistance claims: failure to object to DeAndrea’s testimony (expert/lay), failure to call rebuttal experts (forensic pathologist and accident reconstructionist), deficient cross-examination about blood-drop locations, failure to object to prosecutor’s questioning about attorney-client discussions and withdrawn plea, and cumulative prejudice.
- The PCRA court held evidentiary hearings, found trial counsel’s choices were strategic and reasonable, and denied relief; the Superior Court affirmed.
Issues
| Issue | Gerber’s Argument | Commonwealth’s / Trial Counsel’s Argument | Held |
|---|---|---|---|
| 1) Failure to object to Sergeant DeAndrea’s testimony as expert opinion | DeAndrea offered expert-level causation and reconstruction opinions (e.g., vehicle ran over victim twice, traveled in reverse) without being designated an expert or qualifying under Rule 702 | DeAndrea’s opinions were permissible lay testimony under Pa.R.E. 701, based on his perception and common-sense deductions from scene observations; counsel reasonably declined to object | Held: No arguable merit to ineffectiveness; testimony admissible as lay opinion and counsel not ineffective |
| 2) Failure to call rebuttal experts (forensic pathologist, accident reconstructionist) | Defense needed experts (Wecht, Baranowski) to contradict DeAndrea and Commonwealth pathologist to show different impact/number of runs | Counsel effectively cross-examined Commonwealth pathologist; calling Baranowski risked undermining defense (would suggest victim was lifted onto hood/braked), and availability of experts at trial was not established | Held: No ineffectiveness — Wecht not necessary; Baranowski would have contradicted defense theory; counsel’s choice reasonable |
| 3) Failure to cross-examine about blood-drop locations/misstatements | Counsel should have impeached DeAndrea where his testimony about blood being "on the berm" contradicted exhibit showing most drops were in roadway, which could refute Commonwealth’s intentionality argument | Counsel’s strategy was to avoid disputing precise location (immaterial to defense that Gerber didn’t see victim); raising it risked playing into Commonwealth’s theory | Held: No ineffectiveness — strategic decision with reasonable basis |
| 4) Failure to object to prosecutor’s questioning on attorney-client discussions and withdrawn guilty plea | Prosecutor elicited privileged strategic communications and questioned Gerber about his withdrawn plea (Rule 410), prejudicing jury against self-defense/intoxication claims | Defendant repeatedly opened the subject (mentioned the plea), counsel “chose” not to object to avoid appearing to hide things and to use the plea context advantageously on redirect; court instructed jury to disregard withdrawn plea | Held: No relief — some questioning implicated privilege but counsel had reasonable strategy; withdrawn plea was elicited by defendant and jury was instructed to disregard |
Key Cases Cited
- McKee by McKee v. Evans, 551 A.2d 260 (Pa. Super. 1988) (investigating officer may give lay opinions about point of impact when based on discernible factors)
- Commonwealth v. Chmiel, 30 A.3d 1111 (Pa. 2011) (standards for ineffectiveness claims for failing to call witnesses and experts)
- Commonwealth v. Kennedy, 151 A.3d 1117 (Pa. Super. 2016) (police crime-scene observations may be admissible as lay opinion)
- Commonwealth v. Bowser, 624 A.2d 125 (Pa. Super. 1993) (lay witness may express opinions embracing ultimate issues if based on perception)
- Commonwealth v. Miller, 819 A.2d 504 (Pa. 2002) (trial strategy/tactics entitled to deference where reasonable basis exists)
- Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011) (cumulative-prejudice rule: only aggregate prejudice from individually prejudicial claims may warrant relief)