J-S33030-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

GREGORY DEAN KIMMEL

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1515 MDA 2016

Appeal from the Order Entered September 13, 2016

In the Court of Common Pleas of Centre County 

Criminal Division at No(s): CP-14-CR-0001402-2015

BEFORE: BENDER, P.J.E., OTT, J. and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.: FILED AUGUST 29, 2017

The Commonwealth appeals from the order entered September 13, 

2016, in the Centre County Court of Common Pleas.1 The trial court 

precluded the Commonwealth from introducing into evidence edited excerpts 

from Gregory Dean Kimmel’s recorded prison telephone conversations, 

unless the recordings were offered for impeachment purposes. On appeal, 

the Commonwealth contends the trial court abused its discretion when it 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1

Pursuant to Pennsylvania Rule of Appellate Procedure 311(d), the 

Commonwealth properly certified in its notice of appeal that the order “will 

terminate or substantially handicap the prosecution.” Notice of Appeal, 

9/13/2016. See Pa.R.A.P. 311(d).
J-S33030-17

- 2 -

sustained Kimmel’s objection to the admission of edited portions of the 

recorded calls during its case-in-chief. For the reasons below, we affirm.

The facts underlying Kimmel’s arrest are as follows. On August 5, 

2015, at approximately 11:45 a.m., Cecil Barnhart robbed the Citizen’s Bank 

on Atherton Street in State College, Pennsylvania. Barnhart appeared in a 

“very noticeable” disguise, and demanded the teller give him all of the large 

bills. N.T., 9/12/2016, at 91. During the robbery, Barnhart’s cell phone 

began ringing. He then became more aggressive, and walked behind the 

teller station to grab the money himself. In doing so, Barnhart mistakenly 

took a dye pack. See id. at 94-95. 

Shortly thereafter, Barnhart fled the building, and the dye pack 

exploded. He then jumped into the passenger side of a waiting, blue sedan. 

See id. at 116-117. Immediately before the robbery, two women, who 

worked in a nearby office building, noticed an older gentleman bent over the 

hood of the blue sedan with a tire iron or crow bar in his hand. They 

observed that he seemed out of place. When the women returned from 

lunch after the robbery, the man and the car were gone. See id. at 56-60, 

67-71.

On August 7, 2015, the police received a confidential tip regarding the 

robbery that led them to the home of Susan Carr Wilson, Barnhart’s 

girlfriend. After obtaining a search warrant, the police went back to Wilson’s 

residence and observed a blue sedan in the driveway, which had not been 

there earlier that day. The officers looked in the car and saw, on the rear 
J-S33030-17

- 3 -

seat, two U.S. currency bills with red dye stain. See id. at 129-132. They 

later learned the car was registered to Kimmel, and a subsequent search of 

the car revealed red dye stain in the front interior of the vehicle. See id. at 

190-192. The police also recovered an order form from Wilson’s residence, 

which indicated two sandwiches had been purchased from a hoagie shop in 

Potters Mills at approximately 12:13 p.m. on the same day as the robbery.2 

The police later reviewed surveillance footage from the hoagie shop, and 

obtained several still photos. The individuals in the still photos were 

subsequently identified as Barnhart and Kimmel. See id. at 132-140. 

Barnhart was arrested, and admitted his role in the bank robbery. He 

told the police that some of the money was buried on his property, and 

some was hidden under the hood of Kimmel’s car. See id. at 202. After 

finding the hidden money, the police arrested Kimmel and charged him with 

robbery, theft, receiving stolen property, and three counts of conspiracy.3 

Barnhart entered an open guilty plea prior to trial. The Commonwealth 

proceeded with Kimmel’s jury trial on September 12, 2016. Barnhart’s 

attorney informed the trial court that Barnhart intended to assert his Fifth 

____________________________________________

2 The hoagie shop is located 20 to 25 minutes from the bank. N.T., 

9/12/2016, at 142.

3 18 Pa.C.S. §§ 3701(a)(1)(vi), 3921(a), 3925(a), and 903, respectively.
J-S33030-17

- 4 -

Amendment privilege against self-incrimination, and would not testify at 

Kimmel’s trial.4 See N.T., 9/12/2016, at 78. 

During its case-in-chief, the Commonwealth sought to introduce into 

evidence edited portions of Kimmel’s recorded prison telephone calls. 

Kimmel objected, contending the statements constituted inadmissible 

hearsay. See id. at 215-216. However, when the Commonwealth 

successfully argued the calls were admissible as statements against interest, 

Kimmel requested the recorded calls be played in their entirety so his 

comments would not be taken out of context. See id. at 217. The 

Commonwealth then asserted it could not introduce the entire recordings 

because they contained Bruton5statements - during the calls, Kimmel 

____________________________________________

4 Barnhart’s sentencing was scheduled to take place after Kimmel’s jury trial.

5 Bruton v. U.S., 391 U.S. 193 (1968). It is not clear to this panel whether 

the introduction of Kimmel’s recorded prison calls would have violated 

Bruton. Our Supreme Court has explained:

The rule established in Bruton prevents the use of a statement 

of a non-testifying codefendant which directly inculpates one or 

more other defendants at a joint trial, but which has been 

deemed inadmissible against such defendant(s), based on the 

Sixth Amendment right to confront the witness.

Commonwealth v. Robins, 812 A.2d 514, 521 (Pa. 2002) (emphasis 

added). Here, Kimmel was not tried jointly with Barnhart since Barnhart 

entered a guilty plea prior to trial. Moreover, the statement at issue was not 

Barnhart’s recorded confession, but rather, Kimmel’s own statement 

regarding what Barnhart told police. 

Nevertheless, the Commonwealth does not raise this claim on appeal, 

and, in fact, insisted at trial that it could not introduce the entire recordings 

(Footnote Continued Next Page)
J-S33030-17

- 5 -

stated several times that Barnhart told police Kimmel was involved in the 

robbery. See id. Accordingly, the trial court conducted an in camera review 

of the recorded calls to determine if the Commonwealth’s proposed excerpts 

were taken out of context. After listening to the recordings, and hearing 

argument from both counsel, the court took the matter under advisement. 

Following a short recess, the trial court sustained Kimmel’s objection, “with 

the caveat that those tapes could possibly be used for impeachment 

purposes should [Kimmel] testify.” Id. at 235. The Commonwealth asked 

the court to reconsider its ruling, which the court declined. Consequently, 

the Commonwealth informed the trial court that it intended to seek an 

interlocutory appeal. This appeal followed.

The sole issue raised by the Commonwealth on appeal is whether the 

trial court abused its discretion in sustaining Kimmel’s objection to the 

admission of seven edited segments from Kimmel’s prison phone calls.6 The 

Commonwealth insists the recordings contain inconsistent and inculpatory 

(Footnote Continued) _______________________

because they would violate Bruton. See N.T., 9/12/2016, at 217. 

Therefore, any challenge to the Bruton argument is waived. In any event, 

as will be discussed infra, the trial court concluded the recordings did not 

contain any relevant information regarding Kimmel’s culpability for the 

crime. 

6 The edited recordings ranged in length from five seconds to 41 seconds 

each, and totaled less than two and one-half minutes, out of the nearly 60 

minutes of Kimmel’s recorded prison phone call conversations. See

Commonwealth’s Brief at 20-22, n.2-8.
J-S33030-17

- 6 -

statements made by Kimmel, which were “relevant and highly probative of 

[his] guilt.” Commonwealth’s Brief at 20. It maintains Kimmel’s 

inconsistent statements about his involvement in the bank robbery (first, 

stating he was four hours away, but later placing himself at the scene) 

evidence his “consciousness of guilt.” Id. at 24. Moreover, the 

Commonwealth argues Kimmel’s statement that Barnhart received a call 

“while we was doing the bank” constitutes a statement against interest and 

“clearly inculpate[s]” him in the crime. Id. at 21, 24 (emphasis added). 

Furthermore, the Commonwealth disputes the trial court’s determination 

that the edited portions of the calls were misleading, and could be taken out 

of context. See id. at 18.

Our standard of review of a trial court’s evidentiary ruling is wellestablished: 

Admission of evidence rests within the discretion of the trial 

court, and we will not reverse absent an abuse of discretion. 

Commonwealth v. Washington, 63 A.3d 797, 805 

(Pa.Super.2013). “Discretion is abused when the course 

pursued represents not merely an error of judgment, but where 

the judgment is manifestly unreasonable or where the law is not 

applied or where the record shows that the action is a result of 

partiality, prejudice, bias or ill will.” Commonwealth v. 

Martinez, 917 A.2d 856, 859 (Pa.Super.2007).

Generally speaking, evidence is admissible if it is relevant, 

that is, “if it logically tends to establish a material fact in the 

case, tends to make a fact at issue more or less probable or 

supports a reasonable inference or presumption regarding a 

material fact.” Commonwealth v. Williams, 586 Pa. 553, 581, 

896 A.2d 523, 539 (2006) (citation omitted); Pa.R.E. 402. 

Commonwealth v. Kinard, 95 A.3d 279, 284 (Pa. Super. 2014) (en banc). 
J-S33030-17

- 7 -

Here, the Commonwealth sought to introduce only small portions of 

Kimmel’s recorded prison telephone calls. Pursuant to the Pennsylvania 

Rules of Evidence, when a party seeks to introduce part of a recording, the 

“adverse party may require the introduction, at that time, of any other part-

-or any other writing or recorded statement--that in fairness ought to be 

considered at the same time.” Pa.R.E. 106. The Comment to Rule 106 

makes clear: 

The purpose of Pa.R.E. 106 is to give the adverse party an 

opportunity to correct a misleading impression that may be 

created by the use of a part of a writing or recorded statement 

that may be taken out of context. This rule gives the adverse 

party the opportunity to correct the misleading impression at the 

time that the evidence is introduced. The trial court has 

discretion to decide whether other parts, or other writings or 

recorded statements, ought in fairness to be considered 

contemporaneously with the proffered part.

Pa.R.E. 106, Comment. This Court has further explained: “Rule 106 is not 

an exclusionary rule, but, rather, it merely permits the adverse party to 

introduce related writings so that the documents originally introduced are 

not read out of context” and the jury is not presented with “misleading or 

impartial evidence.” Commonwealth v. Passmore, 857 A.2d 697, 712 

(Pa. Super. 2004), appeal denied, 868 A.2d 1199 (Pa. 2005).

In the present case, when the Commonwealth first attempted to 

present the partial recordings, Kimmel objected on hearsay grounds. See

N.T., 9/12/2016, at 215-216. The Commonwealth argued Kimmel’s calls 

constituted statements against interest, and based on the Commonwealth’s 

proffer regarding those proposed statements, the trial court agreed. See id.
J-S33030-17

- 8 -

at 216-217. However, Kimmel then requested the Commonwealth introduce 

the entire recordings so that his comments would not be taken out of 

context. See id. at 217-218. At that point, the Commonwealth (perhaps 

mistakenly) stated it could not introduce the calls in their entirety because 

Kimmel’s statements would violate Bruton. See id. See also supra, n.5. 

Therefore, the trial court proceeded to conduct an in camera review of the 

recordings to determine whether Kimmel’s statements were relevant, and 

whether the proposed edited portions were taken out of context. See N.T., 

9/12/2016, at 223-234. After a brief recess, the court sustained Kimmel’s 

objection, prohibiting the Commonwealth from introducing the edited calls 

during its case-in-chief. See id. at 234-235. 

The trial court explained its ruling as follows:

After reviewing each of the recorded telephone calls in 

their entirety, the Court found [the Commonwealth’s] aim of 

introducing its edited sequence as an admission of guilt by 

[Kimmel] was misleading. None of [Kimmel’s] statements in the 

recorded telephone calls amounted to an admission or 

consciousness of guilt. Rather, the overriding themes of 

[Kimmel’s] statements in the recorded telephone calls were how 

[Kimmel’s] life has changed since being charged with the 

underlying offenses ... and that [Kimmel] is innocent of the 

crimes he has been charged with. The specific statements [the 

Commonwealth] sought to introduce were an edited sequence of 

[Kimmel] referencing facts in this case, some of which are in 

dispute. [The Commonwealth] was, in effect, attempting to 

preemptively impeach [Kimmel’s] credibility before it was even 

placed at issue.

In summation, this Court undertook an analysis pursuant 

[to] Pa.R.E. 106 of the edited sequence of [Kimmel’s] 

statements and of the recorded telephone calls from which the 

edited sequence was created. The Court found the edited 
J-S33030-17

- 9 -

sequence of [Kimmel’s] statements was misleading and did not 

constitute an admission or consciousness of guilt as the 

[Commonwealth] proffered. After reaching this finding, the 

Court undertook a relevancy analysis in regards to the entirety 

of the recorded telephone calls. The Court found the substance 

of the recorded phone calls was nearly wholly irrelevant to 

consequential facts in this case. Insofar as said calls referenced 

facts in this case, the Court determined the introduction of those 

edited portions would be unduly prejudicial to [Kimmel] in that 

they would impeach [his] credibility before it was even placed at 

issue.

Trial Court Opinion, 10/17/2016, at 3-4.

Our review of the record - and in particular the recorded telephone 

calls - reveals no abuse of discretion on the part of the trial court. It is 

axiomatic that “[t]he admissibility of evidence ‘depends on relevance and 

probative value.’” Commonwealth v. Bryant, 57 A.3d 191, 195 (Pa. 

Super. 2012) (quotation omitted). Here, the trial court found none of the 

statements the Commonwealth sought to introduce, when considered in 

context, constituted “an admission or consciousness of guilt.” Trial Court 

Opinion, 10/17/2016, at 3. We agree. At no time did Kimmel state or imply 

he was involved in the bank robbery. Rather, he insisted Barnhart had lied 

to the police regarding Kimmel’s involvement. We note the Commonwealth 

insists Kimmel’s statement that “someone called [Barnhart] while we was 

doing the bank, it sure wasn’t me,” evidences his participation in the 

robbery. Commonwealth’s Brief at 20-21 (emphasis added). However, at 

the time he made that statement, Kimmel was referring to information that 

was contained in his criminal “paperwork.” See Commonwealth’s Exhibit 

12c, recording #35643816785409 at 11:10-11:35 (Kimmel stating, “that’s 
J-S33030-17

- 10 -

the evidence they got on me.”). Moreover, although Kimmel commented 

several times that he was in trouble simply for giving a friend a ride, he 

maintained his innocence in the bank robbery. Therefore, we agree with the 

trial court’s determination that the proposed evidence was not relevant, and, 

in fact would be more prejudicial than probative.7 See Trial Court Opinion, 

10/17/2016, at 3-4.

Order affirmed. Case remanded for further proceedings. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/29/2017

____________________________________________

7 Of course, if Kimmel should decide to testify at trial, the recorded calls 

could be used to impeach his credibility. See Order, 9/13/2016.