J-M03001-24

2024 PA Super 142

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES R. MILLER, JR. 

Petitioner

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 30 WDM 2024

Appeal from the Order Entered April 3, 2024

In the Court of Common Pleas of Westmoreland County 

Criminal Division at No.: CP-65-CR-0001019-2024

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and LANE, J.

OPINION BY LAZARUS, P.J.: FILED: JULY 11, 2024

Petitioner, James R. Miller, Jr., filed a “Petition for Specialized Review” 

(“Petition”), seeking review of the April 3, 2024 order of the Court of Common 

Pleas of Westmoreland County, which granted the Commonwealth’s petition 

to modify bail and, consequently, revoked Petitioner’s bail. Upon review, we 

affirm. 

The facts of this case are undisputed and, unless otherwise specified, 

are derived from the trial court’s May 16, 2024 “Statement of the Court Issued 

Pursuant to Pa.R.A.P. 1762(e)” (“Trial Court Opinion”). See Trial Court 

Opinion, 5/16/24, at 1-10. As a result of a nighttime shooting incident that 

occurred on January 28, 2024, Petitioner was charged with discharge of a 

firearm into an occupied structure, and two counts of recklessly endangering 
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another person (“REAP”) on January 31, 2024.1 Following arraignment, bail 

was set at $500,000.00. On March 4, 2024, Petitioner filed a motion to modify 

bail. 

On March 6, 2024, the day a hearing on Petitioner’s motion was 

scheduled, the Commonwealth withdrew the original charges, and substituted 

them with the following: two counts of attempted homicide, several counts 

of aggravated assault, two counts of assault of a law enforcement officer –

firearm discharged, several counts of simple assault, discharge of firearm into 

an occupied structure, three counts of REAP, and possession of drug 

paraphernalia.2

At the March 6, 2024 hearing, the Commonwealth indicated on the 

record that it was “looking for either no bond or a high monetary bond.” N.T.,

Hearing, 3/6/24, at 40. The Commonwealth further stated that “the bond was 

set properly on the prior charges at $500,000.00.” Id. Despite the new 

charges, including attempted homicide of two police officers, the 

Commonwealth repeated that either “no bond be set,” given the danger 

Petitioner posed to himself and the community, or “a high bond be set for 

$500,000.00.” Id. at 40-41. At the conclusion of the hearing, the Magisterial 

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1 18 Pa.C.S.A. §§ 2707.1(a) and 2705.

2 18 Pa.C.S.A. §§ 901(a), 2702(a)(1), (2), (6), 2702.1.(a)(1), 2701(a)(1), 

(3), 2707.1(a), and 2705; and 35 P.S. § 780-113(a)(32), respectively.
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District Judge kept Petitioner’s bond at $500,000.00. Petitioner thereafter 

posted the bond and was released from prison. 

On March 27, 2024, the Commonwealth filed a petition to modify bail, 

requesting that Petitioner be held without bond given the nature of the 

charges and the alleged facts and circumstances of the case. On April 3, 2024, 

the trial court conducted a hearing on the petition, at which the 

Commonwealth presented testimony and evidence from two police officers 

who were involved in the January 28, 2024 shooting incident. 

The Commonwealth first called to the stand State Trooper Brandon 

Gelet, who testified that, at approximately 9:30 p.m. on January 28, 2024, he 

responded to a report of approximately five to six shots fired. Upon arriving 

at the location, Trooper Gelet was informed that individuals heard shots being 

fired outside and one of the rounds hit a house. A bullet hole was located in 

the attic of a residence. Based on the trajectory of the bullet hole, Trooper 

Gelet determined the general direction from where the bullet could have 

originated. During the canvassing of the neighborhood that ensued, Trooper 

Gelet knocked multiple times on the front door of a residence, but there was 

no answer. His colleague, Trooper Smith, went to the right side of the 

residence by the yard area. Trooper Gelet went to the left side of the 

residence and did not see any lights on. Trooper Gelet again knocked on the 

door and observed a small dog go through a door and begin to bark. 

At the time, attired in their Pennsylvania State Police uniforms, both 

troopers had arrived in their marked police vehicles with activated lights. 
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Trooper Gelet shone his flashlight through the porch to determine if he could 

see anyone. According to Trooper Gelet’s testimony, he observed an AR rifle 

on a counter and informed Trooper Smith about it. Trooper Gelet also 

observed a “Ring” doorbell on a windowsill pointed towards his waist. He 

grabbed the doorbell, positioned the camera toward his face, and pressed the 

button to activate it. 

Moments later, Trooper Gelet observed lights turn on in the same room 

where the AR rifle was located. He observed an individual, later identified as 

Petitioner, walking aggressively at a fast rate and going directly for the AR 

rifle. Trooper Gelet immediately informed Trooper Smith about what was 

happening and yelled for Petitioner to drop the weapon. Trooper Gelet 

testified that Petitioner started moving toward the troopers through the 

doorway area. The troopers retreated into the yard with their pistols drawn 

while continuously yelling for Petitioner to drop the weapon. 

According to Trooper Gelet, Petitioner did not drop the weapon and

instead went through the front door. Petitioner immediately fired two rounds 

directly in front of himself, holding the rifle in the hip-firing position. The 

troopers continued to instruct Petitioner to drop his weapon. Petitioner did 

not comply. Instead, Petitioner started turning toward the troopers, at which 

point they fired at him. Trooper Gelet observed Petitioner fall to the ground 

without the rifle in his hands. Petitioner was struck in the abdominal area. 

The Commonwealth next presented the testimony of Corporal Jeffrey 

Summits of the Pennsylvania State Police. Corporal Summits testified that he 
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served as the lead investigator of the officer-involved shooting. According to 

Corporal Summits, he discovered threatening text messages on Petitioner’s 

cell phone that were made in the evening hours leading up to the incident. 

Specifically, the messages were sent from Petitioner’s cell phone to John 

McKelvey and Sarah Egbert, stating that he was coming for them, “bringing 

hell” with him, and threatening to kill them. In addition, Petitioner texted 

Ms. Egbert, stating that if he “was a female, he would kill her too.” Petitioner 

also sent to Mr. McKelvey and Ms. Egbert a picture of himself posing with an 

AR-style rifle that was consistent with the rifle that was used in the shooting 

incident. 

Separately, Corporal Summits testified that, during the course of his 

investigation, he learned that Petitioner was at the Sons and Daughters of 

Italy Club in Scottsdale prior to the incident. There, Petitioner was irate, 

yelling, stomping his feet on the ground, and stating that he was going to 

harm someone. 

Herbert Mitchell, III, who works as an agent for a surety bail company 

in Westmoreland County, testified on Petitioner’s behalf. Additionally, defense 

counsel described Petitioner’s medical condition for the court, highlighting the 

fact that Petitioner was shot six times and is largely confined to a wheelchair. 

See N.T. Hearing, 4/3/24, at 79 (Petitioner is “currently in a wheelchair”). 

At the conclusion of the hearing, and based on the evidence presented 

by the Commonwealth, the trial court granted the Commonwealth’s petition 

for bail modification, revoking bail. 
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On April 17, 2024, Petitioner filed a motion for reconsideration, asserting 

that the Commonwealth failed to disclose exculpatory evidence. Specifically, 

Petitioner claimed that, on August 31, 2022, Petitioner was the target of an 

attempted homicide perpetrated by Orlando Holt, Kristin Kruell, and Tammy 

Vrable, and that Mr. McKelvey was a friend of Petitioner, who assisted 

Petitioner in that altercation. Further, Petitioner asserted that he had an 

opportunity to shoot Mr. Holt, but he declined to do so. Petitioner asserted 

that he was the Commonwealth’s witness in the Holt and Kruell cases. 

According to Petitioner, both Mr. Holt and Ms. Kruell are incarcerated in the 

same prison as Petitioner. 

On April 19, 2024, the trial court denied Petitioner’s reconsideration 

motion. In so doing, the court found:

1. The August 31, 2022 incident involving [Petitioner], [Mr.] 

McKelvey, [Mr.] Holt, [Ms.] Kruell, and [Ms.] Vrabel would have 

been within the knowledge of [Petitioner], who attended the 

April 3, 2024 bond hearing, and he would have had the 

opportunity to elicit testimony about that incident at the bond 

modification hearing regardless of whether the Commonwealth 

had submitted that information prior to the bond hearing.

2. While the additional information could provide some insight 

into [Petitioner’s] motivation on January 28, 2024, it would not 

change the fact that the court has grave concerns regarding 

[Petitioner’s] mental health and state of mind that, without 

some type of assurance of safety from a mental health 

professional, would preclude the issuance of a bond in this 

matter.

Trial Court Order, 4/19/24 (footnote and unnecessary capitalization omitted). 
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On May 3, 2024, Petitioner filed the instant Petition under Pa.R.A.P. 

1610,

3 presenting three issues for our review:

[I.] Whether the Pennsylvania Constitution supports the trial 

court’s decision to revoke Petitioner’s bail?

[II.] Whether the trial court erred in failing to consider exculpatory 

evidence?

[III.] Whether the trial court’s decision is supported by evidence?

Petition, at 4 (unpaginated). Petitioner principally challenges the revocation 

of bail. The Commonwealth did not file a response. 

At the outset, we observe that, in light of our Supreme Court’s recent 

decision in N.E.M., 311 A.3d 1088 (Pa. 2024), wherein the Court held that 

this Court “lacks discretion to decide whether to grant or deny these petitions 

for specialized review,” review of the merits of the instant Petition is now 

mandatory. N.E.M., 311 A.3d at 1101. We recognize that, although N.E.M.

addressed petitions for specialized review under Pa.R.A.P. 1612, relating to 

juvenile out-of-home placement, its rationale is equally applicable to petitions 

for specialized review of bail filed under Rule 1610. The Court explained that, 

unlike Chapter 13 of our Rules of Appellate Procedure, which governs 

interlocutory appeals by permission, Chapter 16—where Rule 1610 is 

housed—evidences a “mandatory nature” for petitions for specialized review 

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3 Rule 1610 provides in relevant part, “[w]here the trial court enters an order 

under Pa.R.A.P. 1762(b) granting or denying release or modifying the 

conditions of release before sentence, a party may seek review of that order 

by filing a petition for specialized review in the appellate court that would have

jurisdiction over the appeal from the judgment of sentence.” Pa.R.A.P. 1610.
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and provides a “procedure for appellate review of certain discrete issues.” Id.

at 1099 (citation omitted). The Court further explained that Pa.R.A.P. 1601 

“controls how appellate review will be afforded, not how a party can seek 

permission to appeal.” Id. The Court remarked that the “separation of 

appeals placed in Chapter 16 from the permissive appeals consigned to 

Chapter 13 was intentional. Had we intended the review afforded by Appellate 

Rule 1612 to be discretionary, it would have been placed in Chapter 13.” Id. 

Thus, we now turn to the merits of the instant Petition. 

Generally, this Court reviews orders denying bail for an abuse of 

discretion, reversing only where the trial court misapplies the law, or its 

judgment is manifestly unreasonable, or the evidence of record shows that its 

decision is a result of partiality, prejudice, bias, or ill will. See 

Commonwealth v. Bishop, 829 A.2d 1170, 1172 (Pa. Super. 2003). 

Moreover, this Court’s scope of review from the denial of bail is limited to the 

record evidence adduced at the bail hearing and the findings of the lower 

court, reviewed in the light most favorable to the prevailing party. 

Commonwealth v. Talley, 265 A.3d 485, 527 (Pa. 2021). This Court will 

affirm the trial court’s denial of bail “if [the court’s] factual findings are 

supported by competent evidence of record, and [its] legal conclusions drawn 

therefrom are correct.” Id. 
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The right to bail,4 with certain exceptions, is enshrined in Article I, 

Section 14 of the Pennsylvania Constitution, which provides in pertinent part: 

All prisoners shall be bailable by sufficient sureties, unless for 

capital offenses or for offenses for which the maximum sentence 

is life imprisonment or unless no condition or combination of 

conditions other than imprisonment will reasonably assure 

the safety of any person and the community when the proof 

is evident or presumption great[.]

Pa. Const. art. I, § 14 (emphasis added). 

Rule 520 of the Pennsylvania Rules of Criminal Procedure provides that 

“[b]ail before verdict shall be set in all cases as permitted by law. Whenever 

bail is refused, the bail authority shall state in writing or on the record the 

reasons for that determination.” Pa.R.Crim.P. 520(A). 

In Talley, our Supreme Court conducted a thorough analysis of a 

defendant’s right to bail pursuant to Article I Section 14 of the Pennsylvania 

Constitution. The Court concluded:

[A] trial court may deny bail under Article I Section 14 when the 

Commonwealth’s proffered evidence makes it substantially more 

likely than not that the accused: (1) committed a capital 

offense, (2) committed an offense that carries a maximum 

sentence of life imprisonment, or (3) presents a danger to any 

person and the community, which cannot be abated using 

any available bail conditions. That determination requires a 

qualitative assessment of the Commonwealth’s case. 

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4 The fundamental purpose of bail is to ensure the accused’s presence at trial. 

Talley, 265 A.3d at 515, n.18; see Pa.R.Crim.P. 103 (defining bail as “the 

security or other guarantee required and given for the release of a person, 

conditioned upon a written undertaking, in the form of a bail bond, that the 

person will appear when required and comply with all conditions set forth in 

the bail bond”). 
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Talley, 265 A.3d at 525-26 (emphasis added). The Court provided a nonexhaustive list of factors a trial court should consider in denying bail, which

include: (1) the defendant’s character; (2) relevant behavioral history or past 

patterns of conduct; (3) the gravity of the charged offense; (4) the conditions 

of bail reasonably available to the court; and (5) any evidence that tends to 

show that those conditions would be inadequate to ensure the protection of 

any person or the community.5 Id. at 525. Thus, according to the Court, “[i]f 

the balance of the evidence is rife with uncertainty, legally is incompetent, 

requires excessive inferential leaps, or lacks any indicia of credibility, it simply 

is not evident proof, nor can it give rise to a great presumption, that the 

accused is not entitled to bail.” Id. at 526. 

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5 These factors either largely mirror or overlap with factors set forth in 

Pa.R.Crim. 523(A), relating to release criteria. The Rule 523(A) factors 

include: (1) the nature of the offense charged and any mitigating or 

aggravating factors that may bear upon the likelihood of conviction and 

possible penalty; (2) the defendant’s employment status and history, and 

financial condition; (3) the nature of the defendant’s family relationships; (4) 

the length and nature of the defendant’s residence in the community, and any 

past residences; (5) the defendant’s age, character, reputation, mental 

condition, and whether addicted to alcohol or drugs; (6) if the defendant has 

previously been released on bail, whether he or she appeared as required and 

complied with the conditions of the bail bond; (7) whether the defendant has 

any record of flight to avoid arrest or prosecution, or of escape or attempted 

escape; (8) the defendant’s prior criminal record; (9) any use of false 

identification; and (10) any other factors relevant to whether the defendant 

will appear as required and comply with the conditions of the bail bond.
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With the foregoing standard in mind, and for ease of disposition, we

combine Petitioner’s first and third issues on review.6 Petitioner essentially 

claims that the trial court abused its discretion in revoking his bail. In support, 

Petitioner points out that, while released on bail, he was not only present for 

all court proceedings, but also posed no threat to the community. See

Petition, at 5-6 (unpaginated). Additionally, Petitioner claims that to ensure 

the safety of the community, the trial court had at its disposal “less restrictive 

measures other than imprisonment—such as house arrest.” Id. at 6 

(unpaginated). Finally, Petitioner claims that the Commonwealth did not offer 

any expert testimony sufficient to revoke bail on the basis of Petitioner’s 

mental health. Id. at 7 (unpaginated). 

Based upon our review of the record, we conclude that the trial court 

considered multiple factors consistent with Talley and, as a result, did not 

abuse its discretion in revoking Petitioner’s bail. The trial court explained on 

the record that it had no intention of revoking Petitioner’s bail prior to the April 

3, 2024 hearing. In fact, the court stated that, because a high bail was set 

and Petitioner had not caused any trouble since being released on bail, its 

initial intention was to maintain the status quo. See N.T., Hearing, 4/3/24, 

at 80, 82 (stating that the court’s initial thought was house arrest). However, 

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6 To the extent Petitioner claims that the revocation of his bail was 

unconstitutional under Article I, Section 14 of the Pennsylvania Constitution, 

see Petition, at 5-6 (unpaginated), we are unable to engage in a meaningful 

review of the claim because, beyond a bald allegation of unconstitutionality, 

Petitioner has failed to develop this claim with any citation to authority.
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the trial court further explained that the evidence presented at the hearing 

raised three “different lines of concern.” Id. at 80. 

First, finding credible Trooper Gelet’s testimony, the trial court was 

concerned by Petitioner’s act of shooting in the vicinity of the troopers when 

they came to his house. See id. (noting that Petitioner was shooting in vicinity 

of troopers and pivoted toward them when they shot him). The trial court’s 

second concern was that prior to the January 28 incident, Petitioner was 

shooting a gun in public late at night. Id. The trial court’s final concern 

pertained to Petitioner’s sending threatening messages to Mr. McKelvey and 

Ms. Egbert. Id. at 80-81. 

As a result of these concerns, the trial court found that Petitioner posed 

a safety threat to the community. Id. at 81. The trial court reasoned:

[We are] looking at somebody that certainly that night was 

completely out of control, and if somebody is that out of control 

that they’re—that somebody comes to their home, they hear a 

doorbell, and he comes out shooting immediately, what’s house 

arrest—what’s home electronic monitoring going to do there? 

Id. at 82. We agree. Thus, given the unique circumstances of this case, 

where Petitioner shot a firearm in public and subsequently in the vicinity of 

uniformed troopers late at night, and viewed in a light most favorable to the 

Commonwealth as the prevailing party, we cannot conclude that the trial court 
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abused its discretion in determining that the Commonwealth established, by 

evident proof and great presumption, that Petitioner was not entitled to bail.7 

We turn finally to Petitioner’s second claim that the trial court erred in 

failing to consider exculpatory evidence. See Petition, at 6 (unpaginated). 

Petitioner argues that the Commonwealth committed a Brady8 violation in 

failing to disclose that Petitioner was the target of an attempted homicide on 

August 31, 2022, when Mr. Holt pointed a firearm at Petitioner and pulled the 

trigger. Id. Additionally, Petitioner argues the Commonwealth did not 

disclose that Petitioner was a witness for the Commonwealth in those cases 

and, despite having an opportunity to shoot Mr. Holt, Petitioner declined to do 

so. Id.

Petitioner is not entitled to relief on this issue. As the trial court aptly 

explained, “it is not clear that said information constitutes Brady material, 

that the Commonwealth was aware of it prior to the hearing, or that it was 

required to provide exculpatory information at this early stage of the case.” 

Trial Court Order, 4/19/24, at ¶ 1, n.1. Indeed, this information would have 

been known to Petitioner, who was present at the April 3, 2024 hearing. 

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7 The trial court acknowledged that expert testimony regarding Petitioner’s 

medical condition or his mental health might have led to a different outcome 

on the Commonwealth’s petition for bail modification. See N.T., Hearing, 

4/3/24, at 81, 83-84. 

8 Brady v. Maryland, 373 U.S. 83 (1963) (holding that a due process 

violation occurs when the state suppresses or fails to disclose material 

exculpatory evidence).
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Accordingly, in light of the foregoing, and pursuant to N.E.M.’s mandate 

to consider petitions for specialized review on their merits, we affirm the trial 

court’s April 3, 2024 order. 

Order affirmed. 

DATE: 7/11/2024