Com. v. Gist, K.
1370 EDA 2014
| Pa. Super. Ct. | Sep 25, 2017Background
- On Dec. 28, 2011, Gist and four co-conspirators traveled from Trenton to Levittown to rob Daniel DeGennaro; during the intrusion three men (including Gist) entered armed and DeGennaro was fatally shot.
- Co-conspirators used a ruse involving a used-car listing to contact a neighbor and locate the house; phone records and cell-site data placed several suspects near the victim at the time of the crime.
- Police obtained wiretaps on phones of co-defendants (Henderson, Bakr, Jackson) and recorded inculpatory statements and post-offense communications; Bakr also made statements implicating the group.
- Gist was arrested March 29, 2012; he moved to suppress wiretap evidence (alleging failure to minimize) and later was convicted of criminal homicide, robbery, burglary, conspiracy, and PIC; acquitted of conspiracy to commit homicide.
- At sentencing the trial court mistakenly pronounced sentence on the acquitted count but corrected the sentencing sheet two days later; Gist filed a timely post-sentence motion and then timely appealed.
- Trial evidence included a nine millimeter handgun recovered from Gist’s bedroom; ballistics evidence could not positively match that gun to the scene but indicated a 9mm cartridge and a projectile in the wall consistent with 9mm/38 class.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether wiretap evidence should be suppressed for failure to minimize (incl. texts) | Commonwealth: wiretap lawful and minimization reasonable | Gist: monitoring exceeded minimization (200–300 calls + texts not minimized) and constituted an unconstitutional general search | Court affirmed denial of suppression; companion Powell decision disposed similarly; practical inability to "minimize" texts noted; no material deviation found |
| 2. Admissibility of handgun found in Gist’s bedroom (no direct link to crime) | Commonwealth: weapon admissible under similar-weapon exception as it tends to show a weapon like that used | Gist: no forensic match; admission speculative and unfairly prejudicial | Court held firearm admissible; Commonwealth laid sufficient foundation to infer likelihood it was similar to weapon used; weight, not admissibility, affected by lack of positive match |
| 3. Admissibility of cell-site/tower coverage expert testimony | Commonwealth: expert evidence on tower coverage admissible and reliable | Gist: expert failed to consider necessary factors and lacked scientific certainty | Court affirmed admission; relied on companion Powell rejecting similar challenge |
Key Cases Cited
- Commonwealth v. Dreves, 839 A.2d 1122 (Pa. Super. 2003) (untimely post-sentence motion does not toll appeal deadline)
- Commonwealth v. Duffy, 143 A.3d 940 (Pa. Super. 2016) (sentence runs from pronouncement in open court)
- Commonwealth v. Hicks, 156 A.3d 1114 (Pa. 2017) (appellate review of evidentiary rulings rests with trial court’s discretion)
- Commonwealth v. Christine, 125 A.3d 394 (Pa. 2015) (similar-weapon exception: weapon need not be positively identified; uncertainty goes to weight)
- Commonwealth v. Brown, 71 A.3d 1009 (Pa. Super. 2013) (admission of similar-caliber weapon upheld where bullet characteristics matched)
- Commonwealth v. Williams, 640 A.2d 1251 (Pa. 1994) (uncertainty that weapon is actual weapon used goes to weight)