Commonwealth v. Shull

148 A.3d 820

2016 PA Super 210

Commonwealth of Pennsylvania, Appellant

v.Gabriel Pio Jesus Shull, Appellee

Commonwealth of Pennsylvania, Appellee

v.Gabriel Pio Jesus Shull, Appellant

No. 1607 MDA 2015

No. 1670 MDA 2015

Superior Court of Pennsylvania.

Argued June 29, 2016

Filed September 13, 2016

Reargument Denied November 23, 2016

Bruce L. Castor, Jr., Assistant District Attorney, Ardmore, for Commonwealth.

Stephen M. Geday, North Wales, for Shull.

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J. E.^*

OPINION BY STEVENS, P.J.E.:

The Commonwealth appeals from the judgment of sentence entered in the Court of Common Pleas of Centre County, Senior Judge Michael Williamson presiding, who, sitting as finder of fact in Gabriel Pio Jesus Shull's (“Shull”) non-jury trial, convicted Shull of one count each of Robbery—Fear of Serious Bodily Injury, Unlawful Restraint, Simple Assault, Possessing an Instrument of Crime (“PIC”), and Possession of Drug Paraphernalia.¹ Raised in the Commonwealth's appeal are the contentions that the trial court abused its sentencing discretion in refusing to apply a deadly weapon enhancement, in sentencing Shull below the guideline range, and in modifying Shull's sentence for the sole purpose of changing his place of confinement.

In his cross-appeal, Shull asserts the trial court committed error when it denied his motion to disqualify the District Attorney, failed to transfer his case to juvenile court, denied his objection to the admission of other bad acts evidence, and failed to award credit for pre-trial time served for his voluntary admission in privately run, inpatient rehabilitation facilities. Shull also contends that evidence was insufficient to support his Robbery conviction. After careful review, we affirm Shull's convictions, but we remand for resentencing and caution the trial court to impose sentence in a manner consistent with this decision and in accordance with appropriate law.

This matter stems from then-seventeen year-old Gabriel Shull's conduct during the early morning hours of October 13, 2014, as he drove in Centre County smoking marijuana with a former high school acquaintance, Paul Sepich, who had entered his freshman year at Penn State University. N.T., 6/17/15 at 15-20. Sepich and Shull were not friends in high school, but they had crossed paths very briefly at a mutual friend's house a week earlier, Sepich would later testify at trial. He said he entered Shull's car as it pulled up that night thinking a different “Gabe”—Gabe Sandoval—had phoned and invited him to “smoke weed” and drive around town. Id. Despite his surprise at seeing Shull, Sepich remained in Shull's company for the duration of the night.

During the course of the night, Shull made stops at a convenience store and two different Walmart stores. At the North Atherton Walmart, Sepich and Shull walked to the sporting goods department and were looking at pellet guns. According to Sepich's testimony, he told Shull he hoped to buy one of the guns once he saved enough money. N.T., at 34-37. Shull took the box off the shelf and began to tamper with it, prompting Sepich to to disassociate himself with an apparent shoplifting in progress by walking away. Id. On cross-examination, Sepich denied the suggestion that he supported the theft by advising Shull to take a gun without an orange tip if he intended to use it for a robbery. N.T., at 80.

Walmart surveillance video admitted at trial captured Shull removing a Daisy CO-2 pellet gun—which replicates an actual handgun—from the box, placing it underneath his clothing, rejoining Sepich in a nearby aisle, and leaving the store without paying. N.T., at 108-09, 112. Lacking a CO-2 cartridge, however, the pellet gun was incapable of firing a pellet that night. N.T., at 116.

At approximately 3:00 a.m., the two were driving in downtown State College as 23 year-old Penn State student Morgan Grego was walking home after she had completed work at a local pub and stopped for groceries. N.T., at 160-162. Carrying grocery bags and her purse, Grego elected to turn down less-traveled Calder Avenue in order to avoid walking by “the drunk students that normally take College Avenue” during the early morning hours. N.T., at 162.

As she walked along Calder toward her residence on South Burrowes Street, Grego noticed two men in a car pull out of a nearby parking deck, drive past her “a little faster than what was appropriate,” and turn right onto South Burrowes. N.T., at 181-82. She did not think anything of it at the time, and she continued to walk. Before Grego reached the corner, however, Shull had alighted his vehicle and intercepted her on the pretext that he needed directions to a gas station. N.T., at 162-63.

Grego stopped and pointed the way to the convenience store where she had just been, to which Shull replied “[o]kay, do you think you can spot me some money?” N.T., at 163. Feeling uncomfortable, Grego answered “no” and attempted to walk away, but Shull, with his hands remaining in his hoodie pocket, blocked her path. N.T., at 163, 168. As Grego repeatedly tried to walk around Shull, he continued to block her path in an increasingly aggressive manner. N.T., at 163-68. Now frightened, Grego pushed Shull, but he remained in front of her. Id. She pushed harder, and, according to Grego, he “got really mad and kind of snapped and came at me.” N.T., at 163. At that point, Shull grabbed for Grego's purse with one hand and held her body with the other. N.T., at 171.

“When he couldn't separate me from any of my things, he just whipped me down on the ground[,]” Grego testified. N.T., at 169. With Grego on her back, Shull reached down, grabbed her by her hair, and dragged her as he walked in the direction opposite from her destination. Id. It was at this point that Grego looked up and saw a gun in Shull's other hand. N.T., at 169-70. Utterly panicked, Grego began to scream as Shull continued to drag her “like luggage” without either looking down at her or saying anything for just under ten seconds, Grego estimated, before a police car turned the corner. N.T., at 172-73. Grego described her experience and observations as follows:

Q: I mean, were you afraid?

A: I was very afraid. I didn't feel very human just because, like I said, when you are on your back, you are completely submissive. The person that is kind of controlling you, I guess, if they're not even looking at you, I just felt kind of dehumanized, I guess. I have never felt that way before.

So, like I said, I looked up at him. Saw just the back of his head as he was pulling me. I saw the gun and that's when I got really afraid. So I just looked straight up. I thought, okay, look for anything that you can get assistance from. I'm looking at the apartment buildings, looking for a parked car, like, just any kind of assistance, No lights were on in the tops of the windows. No lights. No cars. Obviously, no store is open.

So I just felt very alone. There was no one else on the streets. So, yeah, I just felt very helpless and, like I said, I was screaming. But then after I [ ] belted out a good four of them, I kind of realized there's no one here to help me and screaming might not work. I kind of felt like a statistic. I thought, you know, this happens every day to people and you hear about it in the news but I never thought it was going to happen to me, but I guess this is going to happen. Whatever is going to happen is going to happen. So, there's that odd, like, sad, acceptance that—

Q: You realize you were—

A: —I had no control.

***

Q: Can you describe what you saw of the gun/

A: I saw—he was holding it as if you were going to, you know, shoot something, you know, finger in the right place for the trigger. He was holding the end of it. I saw the—I don't know anatomy.

Q: That's okay.

A: I saw the barrel, if you will. So that's what I saw. I knew immediately what it was. It looked like a gun a police officer might carry. So I recognized it very—

Q: Did you[—]

A: —quickly.

Q: —think it was real?

A: Yes. That's when, like I said, I looked up and just looked for help because I knew that this is real right now. It's not someone just, you know, messing with me. He's—something bad is going to happen right now and I have no idea what it is.

***

Q: So, he had it out—just out in the open holding it in his one hand?

A: Yes, and me in the other.

***

Q: Do you know anything about guns?

A: A little. My parents are police officers and my dad and my brother and grandpa hunt. So I have always been around them. I don't use them for anything.

Q: Did you have an impression of what kind of gun you thought it was?

A: Like I said, it looked exactly like the ones that kind of [sic] police officers carry.

N.T., at 174-75, 176-77, 178-79. On cross-examination, Grego confirmed that Shull was holding the gun as if he was going to shoot someone. N.T., at 185-86.

Officer Adam Salyards of the State College Police Department was passenger in his patrol car at the intersection of West College Avenue and South Burrowes Street at approximately 3:00 a.m. when he and fellow officer, Officer Jeremy Gibson, heard what Salyards described as a “bloodcurdling scream” from nearby. N.T., at 86. Sensing something was “very bad...very wrong” from the “worst scream” he had ever heard in his 13 years' service, Officers Salyards and Gibson turned down South Burrowes, where the officers immediately saw Grego near the corner at Calder and a man, Shull, running away. N.T., at 87-88. The officers pursued Shull approximately 200 feet onto New Alley where they saw him getting into the driver's side of a vehicle already occupied by a passenger. N.T., at 89. The officers used their patrol car to block this vehicle and approached the vehicle on foot.

Officer Salyards encountered Sepich in the passenger seat and, seeing what appeared to be a black semi-automatic handgun² at Sepich's feet,³ alerted Officer Gibson of a gun and pulled Sepich out and down to the ground, where he handcuffed him, performed a weapons...