J-S86037-16

_____________________________

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SHAD GUTSHALL

Appellant No. 796 WDA 2016

Appeal from the Judgment of Sentence March 2, 2016

In the Court of Common Pleas of McKean County

Criminal Division at No(s): CP-42-CR-0000400-2015

BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 7, 2016

Appellant, Shad Gutshall, appeals from the judgment of sentence 

entered in the McKean County Court of Common Pleas, following his jury 

trial convictions for robbery, unlawful restraint, simple assault, and 

recklessly endangering another person (“REAP”) and his bench trial 

conviction for the summary offense of harassment.1 We affirm. 

The relevant facts and procedural history of this case are as follows. 

On April 26, 2015, Appellant approached an accomplice, Richard Gould, 

about collecting on a debt Jacob Borowsky (“Victim”) allegedly owed 

Appellant. Mr. Gould agreed to persuade his girlfriend to drive Mr. Gould 

____________________________________________

1 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 2902(a)(1), 2701(a)(3), 2705, and 

2709(a)(1), respectively. 
J-S86037-16

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and Appellant to the home of Victim’s girlfriend. Before they arrived, 

Appellant moved behind the back seat to the cargo area of the vehicle, and 

covered himself with blankets to hide from view. Victim walked out of his 

girlfriend’s home and got into the vehicle. As he did so, Appellant placed 

Victim in a chokehold and pressed “something cold” to Victim’s head, which 

Victim believed was a gun. (N.T. Trial, 1/26/16, at 10). Appellant 

demanded Victim empty his pockets. Victim turned over approximately 

$100.00 to Appellant. Appellant then told Victim to exit the vehicle. Victim 

went back inside his girlfriend’s home, and his girlfriend called police. 

On August 28, 2015, the Commonwealth charged Appellant with the 

listed crimes. On October 2, 2015, Appellant filed a pretrial motion for 

habeas corpus relief, which the court denied following a hearing. Appellant 

proceeded to a jury trial. On January 26, 2016, the jury convicted Appellant 

of robbery, unlawful restraint, simple assault, and REAP. The court also 

convicted Appellant of harassment, and it ordered a pre-sentence 

investigation (“PSI”) report. The court sentenced Appellant on March 2, 

2016, to five (5) to ten (10) years’ incarceration for the robbery conviction, 

with concurrent terms of six (6) to twelve (12) months’ incarceration for 

simple assault and REAP. 

Appellant timely filed a post-sentence motion on March 10, 2016, 

which the court denied following a hearing on May 4, 2016. Appellant timely 

filed a notice of appeal. On June 6, 2016, the court ordered Appellant to file 
J-S86037-16

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a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b); Appellant timely complied on June 20, 2016. 

Appellant raises the following issues for our review:

1. DID THE TRIAL COURT ERR IN PERMITTING THE 

COMMONWEALTH TO INTRODUCE AT TRIAL A VIDEO 

RECORDING CONTAINING AUDIO WHICH PURPORTED TO 

BE OF THE INCIDENT GIVING RISE TO THE ABOVE-LISTED 

CHARGES WHEN THE PROPER FOUNDATION WAS NOT 

LAID PRIOR TO ITS ADMISSION INTO EVIDENCE BECAUSE 

THE WITNESS, RICHARD GOULD, DID NOT IDENTIFY THE 

VOICES IN THE RECORDING, NOR DID HE PROVIDE 

SUFFICIENTLY SPECIFIC INFORMATION CONCERNING THE 

CIRCUMSTANCES OF THE VIDEO AND AUDIO RECORDING.

2. DID THE TRIAL COURT ERR WHEN IT SUSTAINED THE 

COMMONWEALTH’S OBJECTION TO [APPELLANT] 

OFFERING INTO EVIDENCE THE TESTIMONY OF AMBER 

STULL-TUCKER, WHO WOULD HAVE TESTIFIED SHE 

HEARD THE ALLEGED VICTIM STATE THAT HE DID NOT 

WISH TO PURSUE THE CHARGES BUT WAS BEING FORCED 

INTO DOING SO WHEN SUCH EVIDENCE CONSTITUTES AN 

ADMISSION BY A PARTY OPPONENT.

3. DID THE TRIAL COURT ERR [IN] FINDING THAT THERE 

WAS SUFFICIENT EVIDENCE TO PROVE THE ROBBERY 

CHARGE WHEN, IN SUPPORT OF THE ROBBERY CHARGE, 

THE COMMONWEALTH DID NOT OFFER SUFFICIENT 

EVIDENCE THAT [APPELLANT] THREATENED THE VICTIM 

WITH SERIOUS BODILY INJURY WHERE THE 

CIRCUMSTANCES OF [APPELLANT’S] ALLEGED CONTACT 

WITH THE ALLEGED VICTIM DO NOT REASONABLY GIVE 

RISE TO A THREAT OF SERIOUS BODILY HARM, NOR WAS 

EVIDENCE OF ANY INJURY PRESENTED, AND WHEN THE

VICTIM TESTIFIED HE WAS PLACED IN A “CHOKE HOLD” 

BUT DID NOT ARTICULATE THE NATURE OF HIS FEAR; 

WHERE THE RECORDING PURPORTING TO BE 

[APPELLANT] DID NOT MAKE ANY THREAT OF SERIOUS 

BODILY INJURY, NOR DID THE ALLEGED VICTIM TESTIFY 

TO ANY THREAT BEING MADE.

4. DID THE TRIAL COURT ERR IN FINDING THAT THERE 
J-S86037-16

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WAS SUFFICIENT EVIDENCE TO PROVE THE SIMPLE 

ASSAULT CHARGE WHEN THE COMMONWEALTH DID NOT 

OFFER SUFFICIENT EVIDENCE THAT [APPELLANT] 

THREATENED THE VICTIM WITH SERIOUS BODILY INJURY 

WHERE THE CIRCUMSTANCES OF [APPELLANT’S] ALLEGED 

CONTACT WITH THE ALLEGED VICTIM DO NOT 

REASONABLY GIVE RISE TO A THREAT OF SERIOUS 

BODILY HARM, NOR WAS EVIDENCE THAT ANY INJURY 

OCCURRED, AND WHEN THE VICTIM TESTIFIED HE WAS 

PLACED IN A “CHOKE HOLD” BUT DID NOT ARTICULATE 

THE NATURE OF HIS FEAR; WHERE THE RECORDING 

PURPORTING TO BE [APPELLANT] DID NOT MAKE ANY 

THREAT OF SERIOUS BODILY INJURY, NOR DID THE 

ALLEGED VICTIM TESTIFY TO ANY THREAT BEING MADE.

5. DID THE TRIAL COURT ERR IN FAILING TO GRANT A 

NEW TRIAL BASED ON AFTER-ACQUIRED EVIDENCE 

WHEN, AFTER THE CONCLUSION OF TRIAL, STATEMENTS 

WERE MADE TO [APPELLANT’S] FATHER BY THE ALLEGED 

VICTIM THAT THE INCIDENT DID NOT HAPPEN AS HE 

STATED AND THAT HE FELT PRESSURED BY THE 

COMMONWEALTH TO MAINTAIN THAT IT DID. 

(Appellant’s Brief at 5). 

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable William F. 

Morgan, we conclude Appellant’s issues on appeal merit no relief. The trial 

court opinion comprehensively discusses and properly disposes of the 

questions presented. (See Trial Court Opinion, filed July 26, 2016, at 2-8) 

(finding: (1) Appellant’s cohort, Mr. Gould, recorded cell phone video of 

crimes inside vehicle as they took place; video was relevant to show 

Appellant committed crimes consistent with Mr. Gould’s testimony; Mr. 

Gould testified that recording was fair and accurate representation of events 

as they occurred, thus laying proper foundation for video’s introduction; 
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video’s probative value was not outweighed by danger of unfair prejudice; 

court properly admitted video into evidence;2(2) Appellant attempted to 

offer testimony at trial from Amber Stull-Tucker to testify that she had heard 

Victim state he did not wish to pursue charges and Commonwealth was 

forcing him to do so; court sustained Commonwealth’s hearsay objection to 

proposed testimony; Appellant’s contention that testimony constituted 

admission by party opponent is erroneous, as Victim is not “party” to case; 

(3-4) Victim testified at trial that when he entered vehicle, he was 

immediately placed into chokehold by person behind backseat of car; Victim 

said he felt something cold around his ear, which Victim believed was gun; 

Victim recognized Appellant as person assaulting Victim; Victim was told to 

empty his pockets and then to exit car; Victim testified he was scared and 

nervous during incident, and feared that he faced serious bodily injury; 

Commonwealth presented sufficient evidence to sustain Appellant’s robbery 

and simple assault convictions; (5) in Appellant’s post-sentence motion, he 

claimed Victim told Appellant’s father after trial that incident did not happen 

____________________________________________

2

“A party complaining, on appeal, of the admission of evidence in the court 

below will be confined to the specific objection there made. If counsel states 

the grounds for an objection, then all other unspecified grounds are waived 

and cannot be raised for the first time on appeal.” Commonwealth v. 

Lopez, 57 A.3d 74, 81-82 (Pa.Super. 2012), appeal denied, 619 Pa. 678, 62 

A.3d 379 (2013). At trial, Appellant’s counsel objected to the video 

recording on the basis that it was a wiretap violation. The court overruled 

the objection. Appellant’s contention on appeal, that the Commonwealth 

failed to lay a proper foundation for introducing the video at trial, was not 

raised before the trial court and is therefore waived. See id. 
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as Victim testified and that Victim felt pressured by Commonwealth to 

maintain that it did; Appellant failed to offer Victim or Appellant’s father as 

witnesses at hearing on post-sentence motion; thus, court had no testimony 

to support Appellant’s claim of after-acquired evidence; court therefore 

properly denied Appellant’s post-sentence motion). The record supports the

court’s decision. Accordingly, we affirm on the basis of the trial court 

opinion.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/7/2016
. - finding that there was sufficient evidence to prove the Robbery charge when, in support of the 

and that he felt pressured by the Commonwealth to maintain that it did; 4) the trial court erred in 

made to the Defendant's father by the alleged victim that the incident did not happen as he stated 

grant a new trial based on after-acquired evidence when, after conclusion of trial, statements were 

such evidence constitutes an admission by a party opponent; 3) the trial court erred in failing to 

victim state that he did not wish to pursue the charges but was being forced into doing so when 

into evidence the testimony of Amber Stull-Tucker, who would have testified she heard the alleged 

2) the trial court erred when it sustained the Commonwealth's objection to Defendant's offering 

~ 

sufficiently specific information concerning the circumstances of the video and audio recording; 

the witness, Richard Gould, did not identify the voices in the recording, nor did he provide 

listed charges when the proper foundation was not laid prior to its admission into evidence because 

video recording containing audio which purported to be of the incident giving rise to the aboveissues on appeal: 1) the trial court erred in permitting the Commonwealth to introduce at trial a 

(M2), and Count 4- Recklessly Endangering Another Person (M2). The Defendant raises five 

1 - Robbery (Fl), Count 2- Unlawful Restraint (Ml), Count 3- Simple Assault-Physical Menace 

At a jury trial held on January 26, 2016, the Defendant was convicted of four counts: Count 

1925(a) STATEMENT 

Date: July 25, 2016 

Defendant. NO. 400 CR 2015 

SHAD M. GUTSHALL, CRIMINAL DMSION 

vs. McKEAN COUNTY, PENNSYLVANIA 

COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF 

Circulated 11/18/2016 10:16 AM
2 

In evaluating a challenge to the sufficiency of the evidence on appeal from a criminal 

conviction, the Superior Court must determine whether, viewing the evidence in the light most 

favorable to the Commonwealth as verdict winner, together with all reasonable inferences 

therefrom, the trier of fact could have found that each and every element of the crimes charged 

was established beyond a reasonable doubt. Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa. 

Super. 2008). The facts and circumstances established by the Commonwealth need not be 

absolutely incompatible with the defendant's innocence, but the question of any doubt is for the 

. factfinder unless the evidence is so weak and inconclusive that as a matter oflaw no probability 

Robbery charge, the Commonwealth did not offer sufficient evidence that the Defendant 

threatened the victim with serious bodily injury where the circumstances of Defendant's alleged 

contact with the alleged victim do not reasonably give rise to a threat of serious bodily harm, nor 

was evidence of any injury presented, and when the victim testified he was placed in a "choke 

hold" but did not articulate the nature of his fear; where the recording purporting to be the 

Defendant did not make any threat of serious bodily injury, nor did the alleged victim testify to any 

threat being made; and, 5) the trial court erred in finding that there was sufficient evidence to prove 

the Simple Assault charge when, in support of the Robbery charge, the Commonwealth did not 

offer sufficient evidence that the Defendant threatened the victim with serious bodily injury where 

the circumstances of Defendant's alleged contact with the alleged victim do not reasonably give 

rise to a threat of serious bodily harm, nor was evidence of any injury presented, and when the 

victim testified he was placed in a "choke hold" but did not articulate the nature of his fear; where 

the recording purporting to be the Defendant did not make any threat of serious bodily injury, nor 

did the alleged victim testify to any threat being made. 

APPLICABLE AUTHORITY and ANALYSIS 
3 

Pa.RE. 401 and Comment, Pa. R Evid. 401. The decision of relevance rests in the Court's 

"sound discretion[.]" Laubach v. Haigh, 252 A.2d 682, 683 (Pa. 1969). 

(a) it has any tendency to make a fact more or less probable than it 

would be without the evidence; and 

(b) the fact is of consequence in determining the action. 

Comment: This rule is identical to F .RE. 401. 

Whether evidence has a tendency to make a given fact more or less 

probable is to be determined by the court in the light of reason, 

experience, scientific principles and the other testimony offered in 

the case. 

Jury Trial Transcript, January 26, 2016, Page 57, Line 16 through Line 23. Second, evidence is 

relevant if: 

A. Yes. 

Q. Okay. And that video represents a true and accurate depiction of the events as 

they occurred on that day? 

A. Yah, I watched it. 

Q. And you -- and you watched that video? 

A. Yes, it should be in your possession. 

Q. Now when you pulled up to his house did you record this incident on the cell 

phone? 

the authenticity of the video as a fair and accurate representation that he recorded: 

Commonwealth. v. Serge, 896 A.2d 1170, 1179 (Pa. 2006). First, Robert Gould testified to 

(1) is properly authenticated pursuant to Pa.RE. 901 as a fair and accurate representation 

of the evidence it purports to portray; (2) is relevant pursuant to Pa.RE. 401 and 402; and 

(3) has a probative value that is not outweighed by the danger of unfair prejudice 

pursuant to Pa.RE. 403. 

A video recording is demonstrative evidence if it is: 

1. Video Recording 

1006, 1019 (Pa. Super. 2011) (internal citation references omitted). 

of fact can be drawn from the combined circumstances. Commonwealth v. Baker, 24 A.3d 
4 

would be hearsay and would not have been within a recognized exception to the hearsay rule. 

The Commonwealth objected and the court sustained the objection as the proposed testimony 

was being forced into doing so and such evidence constituted an admission by a party opponent. 

would have testified she had heard the victim state that he did not wish to pursue the charges but 

At trial, the Defendant attempted to offer the testimony of Amber Stull-Tucker, who 

2. Testimony of Amber Stull-Tucker 

proper foundation had been laid and the evidence was relevant. 

err when it permitted the video recording containing audio to be admitted into evidence. A 

confused but, instead, it recorded what occurred inside the Jeep. In sum, the trial court did not 

danger of unfair prejudice as the video would unlikely cause the jury to speculate or become 

taken and what was being said. Third, the video's probative value was not outweighed by the 

crimes occurred and to recording the video that portrayed what was occurring at the time it was 

were committed by the Defendant as Richard Gould testified to being inside the Jeep when the 

unlawful restraint, simple assault by physical menace, and recklessly endangering another person 

(internal citations omitted). Here, the video was relevant to show that the crimes of robbery, 

Klein v. Aronchick, 85 A.3d 487, 498 (Pa. Super. 2014), reargument denied (Mar. 18, 2014) 

In determining the admissibility of evidence: 

"[T]he admission of evidence is within the sound discretion of the 

trial court and will be reversed only upon a showing that the trial 

court clearly abused its discretion. Admissibility depends on 

relevance and probative value. Evidence is relevant 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. Evidence, even if relevant, 

may be excluded if its probative value is outweighed by the 

potential prejudice." 
5 

trial based on the above alleged statements made to the Defendant's father. Further, neither the 

At the hearing for Defendant's Post-Sentence Motion, the court denied the motion to grant a new 

Commonwealth v. Lyons, 79 A.3d 1053, 1068 (2013). 

A trial court should grant a motion for new trial on the ground of afterdiscovered evidence where producible and admissible evidence discovered after 

trial (1) could not have been obtained prior to the end of trial with the exercise of 

reasonable diligence; (2) is not merely corroborative or cumulative evidence; (3) is 

not merely impeachment evidence; and (4) is of such a nature that its use will likely 

result in a different verdict on retrial. 

Commonwealth to maintain that it did. 

by the alleged victim that the incident did not happen as he stated and that he felt pressured by the 

acquired evidence when, after conclusion of trial, statements were made to the Defendant's father 

Defendant claims that the trial court erred in failing to grant a new trial based on after3. Failure to Grant New Trial 

exceptions under Pa.RE. 803(25)(A-E). 

a party opponent as the victim is not a party to this action as it does not fit into one of the 

pursue the charges and was being forced into doing so would not be considered an admission by 

Pa.R.E. 803(25). Here, the statement of the victim to Amber Stull-Tucker that he did not want to 

The statement may be considered but does not by itself establish the declarant's authority under 

(C); the existence or scope of the relationship under (D); or the existence of the conspiracy or 

participation in it under (E). 

(A) was made by the party in an individual or representative capacity; 

(B) is one the party manifested that it adopted or believed to be true; 

(C) was made by a person whom the party authorized to make a statement on the subject; 

(D) was made by the party's agent or employee on a matter within the scope of that 

relationship and while it existed; or 

(E) was made by the party's coconspirator during and in furtherance of the conspiracy. 

(25): An Opposing Party's Statement, the statement is offered against an opposing party and: 

Under the Pennsylvania Rules of Evidence 803: Exceptions to the Rule Against Hearsay 
6 

A.. When I entered a Jeep I was surprised with a chokehold from behind. 

Q. Okay. And did anything else happen during this time? 

Q. Okay. And how did you come into contact with him? 

A. Yah, yes. 

Q. Okay. And did ~ou have a chance to come into contact with the Defendant on the 

date of April 261 , 2015? 

injury. At trial, Jacob Borowsky testified: 

Borowsky, by placing him in a chokehold which put him in fear of immediate serious bodily 

committing a theft of the victim's money, and, b) the Defendant threatened the victim, Jacob M. 

presented at trial of the following: a) the Defendant Shad Gutshall was in the course of 

with the intent to deprive the financial institution thereof." 18 Pa.C.S.A. § 3701. Evidence was 

institution by making a demand of an employee of the financial institution orally or in writing 

takes or removes the money of a financial institution without the permission of the financial 

physically takes or removes property from the person of another by force however slight; or (vi) 

another or threatens another with or intentionally puts him in fear of immediate bodily injury; (v) 

immediately to commit any felony of the first or second degree; (iv) inflicts bodily injury upon 

or intentionally puts him in fear of immediate serious bodily injury; (iii) commits or threatens 

committing a theft, he: (i) inflicts serious bodily injury upon another; (ii) threatens another with 

As stated in 18 Pa.C.S.A. § 3701, "[a] person is guilty of robbery if, in the course of 

4. Robbery 

proper. 

being described as "after-acquired evidence." The Court's denial of the Post-Sentence Motion was 

the above conversation. Therefore, the court had no evidence upon which it could consider what is 

victim nor the Defendant's father was called at the time of the Post-Sentence Motion to testify to 
7 

A. I was just told to empty my pockets and then afterwards I was told to get out. 

Q. Okay. Was anything placed by your head? 

A. I'm not sure. I just felt something cold like right around my ear. 

Q. Okay. And at the time what did you believe that was? 

A. I thought it was a gun. 

Q. Okay. 

A. Like that is what I first thought. 

Q. And how did you feel at that time? 

A. Nervous and just scared. 

Jury Trial Transcript, January 26, 2016, Page 9, Line 20 through Page 10, Line 14. The victim 

testified to the fact that he was placed in a chokehold, told to empty his pockets, and that 

something cold was placed next to his ear, which he thought to be a gun. Further, the victim 

stated he was nervous, scared, and thus feared that he may have been presented with serious 

bodily injury. Said evidence was sufficient for the fact finder, the jury, to find that a robbery was 

committed. 

5. Simple Assault - Physical Menace 

As stated in 18 Pa.C.S.A. § 2701, a person commits simple assault "ifhe: (1) attempts to 

cause or intentionally, knowingly or recklessly causes bodily injury to another; (2) negligently 

causes bodily injury to another with a deadly weapon; (3) attempts by physical menace to put 

another in fear of imminent serious bodily injury; or (4) conceals or attempts to conceal a 

hypodermic needle on his person and intentionally or knowingly penetrates a law enforcement 

officer or an officer or an employee of a correctional institution, county jail or prison, detention 

facility or mental hospital during the course of an arrest or any search of the person." 18. 
8 

1 Se~ abov~ in Section 4 about testimony about how the .victim. was placed in the fear of 

immediate serious bodily injury. 

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WILLIAM F. MORGAN, S.J., 

Specially Presiding 

BY THE COURT: 

Defendant is not entitled to relief on appeal. 

WHEREFORE, based on the foregoing reasons, it is respectfully asserted that the 

sufficient evidence to find that a simple assault by physical menace was committed. 

chokehold which put him in fear of immediate serious bodily injury. 1 Therefore, the jury had 

committed a simple assault by physical menace by placing the victim, Jacob M. Borowsky in a 

Pa.C.S.A. § 2701. Evidence was presented at trial of the following: the Defendant Shad Gutshall