Com. v. Gilmore, R.
1060 MDA 2015
| Pa. Super. Ct. | Oct 24, 2016Background
- On Feb. 13, 2014 in downtown Carlisle, Robert Gilmore and a co-conspirator fired multiple rounds at Stephen Robinson; Robinson escaped unharmed but bystanders Jayonna Pope (shot in the head) and Ashley Brown (grazed) were injured.
- An off-duty constable witnessed the shooters, followed a fleeing white vehicle, and later identified Gilmore from a photo array; surveillance video corroborated flight from the scene.
- Robinson and Pope were uncooperative or recanted at trial; contemporaneous text messages from Robinson (admitted at trial) identified him as the intended target and undermined his court testimony.
- A jury convicted Gilmore of attempted murder, two counts of aggravated assault (one relating to attempted serious injury, one for causing bodily injury with a deadly weapon), firearms offenses, and recklessly endangering another person; conspiracy count was later dismissed.
- Gilmore was resentenced (after a correction) to a 12½ to 25 year aggregate term composed of consecutive terms for attempted murder, aggravated assault, firearms possession, and REAP; he appealed challenging sufficiency/weight of evidence, evidentiary rulings, jury instructions (transferred intent), merger, and sentence length.
Issues
| Issue | Commonwealth's Argument | Gilmore's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for attempted murder/aggravated assault/REAP | Eyewitness ID, video, and Robinson's texts support intent, substantial steps, and reckless endangerment | Victim witnesses were unreliable/uncooperative; identification and intent not proved beyond reasonable doubt | Court affirmed: evidence (eyewitness ID, surveillance, texts) was sufficient and jury credibility findings were binding |
| Weight of the evidence | Jury reasonably disbelieved recanted/unhelpful witness testimony; verdicts not shocking | Guilty verdicts were against the weight given witness problems | Court declined to disturb trial court's discretionary denial of new trial; verdicts did not shock the conscience |
| Admission of Robinson's text messages | Texts were authenticated by Robinson's admission and subject to cross-examination | Texts were improperly authenticated/hearsay | Court held admission proper: Robinson admitted authorship; confrontation/cross-examination addressed reliability |
| Transferred intent instruction and application | Transferred intent applies even without a killing under 18 Pa.C.S. § 303(b); instruction tailored to facts | Court improperly modified standard instruction and transferred intent inapplicable absent a killing | Court held instruction legally correct and properly adapted; transferred intent applies to unintended injured bystanders |
| Merger of aggravated assault (Pope) with attempted murder | Multiple victims mean separate harms; aggravated assault with deadly weapon has element (deadly weapon causing bodily injury) not subsumed by attempted murder | Merger should prevent separate punishment for related offenses | Court held no merger: aggravated assault against Pope was not lesser-included and the crimes targeted different victims so separate sentences affirmed |
| Sentence excessive / failure to consider factors | Sentencing court abused discretion and ignored § 9721(b) factors; sentence beyond guidelines | Sentencing court considered PSI, record, nature of crime, defendant's character; sentence within statutory limits and justified | Court held no abuse: within statutory range, court considered factors, and consecutive sentences were appropriate given danger and injuries |
Key Cases Cited
- Commonwealth v. Gatling, 807 A.2d 890 (Pa. 2002) (framework for merger analysis and when offenses should merge for sentencing)
- Commonwealth v. Johnson, 874 A.2d 66 (Pa. 2005) (comparison of statutory elements to determine lesser-included offenses)
- Commonwealth v. Yates, 562 A.2d 908 (Pa. 1989) (victims protected individually; multiple punishments for harms to different victims permitted)
- Commonwealth v. Ramtahal, 33 A.3d 602 (Pa. 2011) (specific intent can be inferred from use of a deadly weapon)
- Commonwealth v. Koch, 103 A.3d 705 (Pa. 2014) (authentication issues for cell-phone text messages)
- Commonwealth v. Sullivan, 820 A.2d 795 (Pa. Super. 2003) (standard for weight-of-the-evidence claims)