J-S37038-15

2015 PA Super 156

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

GEORGE WILSON WIDMER

Appellant No. 3018 EDA 2014

Appeal from the Judgment of Sentence September 23, 2014

In the Court of Common Pleas of Monroe County

Criminal Division at No(s): CP-45-CR-0000129-2014

BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

OPINION BY LAZARUS, J.: FILED JULY 20, 2015

George Wilson Widmer appeals the judgment of sentence entered by 

the Court of Common Pleas of Monroe County after he was convicted of 

burglary of a building not adapted for overnight accommodation,1criminal 

trespass,2 possessing an instrument of crime,3theft by unlawful taking,4and 

criminal mischief.5 Widmer challenges the trial court’s order permitting the 

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1 18 Pa.C.S. § 3502(a)(4).

2 18 Pa.C.S. § 3503.

3 18 Pa.C.S. § 907.

4 18 Pa.C.S. § 3921(a).

5 18 Pa.C.S. § 3304(a)(5).
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Commonwealth to use his statements made during plea negotiations against 

him at trial. After careful review, we affirm.

The trial court summarized the relevant facts as follows:

On March 21, 2014[,] during plea negotiations, the 

Commonwealth offered [Widmer] the opportunity to meet with 

his attorney, the assistant district attorney, and a trooper from 

the Pennsylvania State Police for the purpose of providing a 

sworn statement admitting to all burglaries he had committed. 

The parties agreed that in exchange for [Widmer’s] cooperation 

in helping to resolve several open files, the Commonwealth 

would recommend a jail sentence of 10 to 20 years in a State 

Correctional Institution, and not file additional charges on 

approximately 32 other cases. [Widmer], in the presence of his 

[a]ttorney, provided a sworn statement on the record of all 

burglaries he had recently committed. Twice, before [Widmer] 

made any statements, he was advised that anything said in 

conjunction with the proffer would be used against him if he 

later decided not to go through with his plea. . . . Following the 

making of the proffer, [Widmer] decided not to proceed with the 

agreement. On multiple other occasions prior to trial [Widmer] 

sought to reinstate his agreement with the Commonwealth only 

to renege before the agreement was brought before the [c]ourt.

Counsel for [Widmer] filed a [m]otion in limine on August 21, 

2014, to prohibit the Commonwealth from using [Widmer’s] 

proffer at trial in their case-in-chief.

On August 26, 2014, the Commonwealth filed a Motion for 

Expedited Hearing and a hearing was held on September 2, 

2014[,] where [the court] found that the Commonwealth could 

use [Widmer’s proffer in its] case-in-chief.

Trial Court Opinion, 12/30/14, at 1-2.

The case proceeded to trial, and on September 8, 2014, a jury 

convicted Widmer of the above-referenced offenses. Widmer was sentenced 

on September 23, 2014, to 54 to 120 months’ incarceration. No post-
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sentence motions were filed, and Widmer filed this timely appeal on October 

22, 2014. Widmer raises one issue for our review, verbatim:

Should the Commonwealth be permitted to use a statement 

made by [Widmer] in the course of plea negotiations under 

Pennsylvania Rule of Evidence 410 in their case in chief, or, are 

they only permitted to use said statement to impeach the 

defendant should he choose to take the stand at trial?

Brief of Appellant, at 5.

We review a trial court’s denial of a motion in limine for an abuse of 

discretion. Commonwealth v. Owens, 929 A.2d 1187, 1190 (Pa. Super. 

2007). Further,

[o]ur standard of review in addressing a challenge to the denial 

of a suppression motion is limited to determining whether the 

suppression court’s factual findings are supported by the record 

and whether the legal conclusions drawn from those facts are 

correct. Because the Commonwealth prevailed before the 

suppression court, we may consider only the evidence of the 

Commonwealth and so much of the evidence for the defense as 

remains uncontradicted when read in the context of the record 

as a whole. Where the suppression court’s factual findings are 

supported by the record, we are bound by these findings and 

may reverse only if the court’s legal conclusions are erroneous. 

Where, as here, the appeal of the determination of the 

suppression court turns on allegations of legal error, the 

suppression court’s legal conclusions are not binding on an 

appellate court, whose duty it is to determine if the suppression 

court properly applied the law to the facts. Thus, the conclusions 

of law of the courts below are subject to our plenary review.

Commonwealth v. Hoppert, 39 A.3d 358, 361–62 (Pa. Super. 2012) 

(citation omitted).

Pa.R.E. 410 provides, in relevant part: 

(a) General rule. Except as otherwise provided in this rule, 

evidence of the following is not, in any civil or criminal 
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proceeding, admissible against the defendant who made the plea 

or was a participant in the plea discussions: 

. . .

(4) any statement made in the course of plea discussions 

with an attorney for the prosecuting authority which does 

not result in a plea of guilty or which results in a plea of 

guilty later withdrawn. 

Pa.R.E. 410(a). 

As an initial matter, it is not disputed that Widmer was engaged in 

plea negotiations at the time he made the proffer. Ordinarily, Widmer’s 

statement would not have been admissible at trial during the 

Commonwealth’s case-in-chief. See Commonwealth v. Stutler, 966 A.2d 

594 (Pa. Super. 2009) (finding reversible error where trial court permitted 

admission of defendant’s inculpatory statements made during plea 

discussions). Instantly, however, the Commonwealth contends that Widmer 

waived the inadmissibility of his statements as part of the bargain he struck 

with the Commonwealth during plea negotiations. Widmer disputes the 

extent to which he waived his rights under Rule 410 and argues that his 

statements would have been admissible only for impeachment purposes if he 

testified at trial.

Here, Widmer had been charged in relation to a particular burglary and 

was suspected of upwards of thirty other burglaries. In exchange for his 

statement under oath regarding the instant matter and other open cases, 

the Commonwealth agreed to recommend a sentence of ten to twenty years’ 

incarceration. Additionally, the Commonwealth predicated its plea bargain 
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with Widmer upon Widmer waiving his rights pursuant to Rule 410. Before 

Widmer began his proffer under oath, the assistant district attorney (ADA) 

stated twice that Widmer’s statement would be admissible if Widmer later 

determined not to proceed with making the plea. 

The specific language used by the ADA to address Widmer regarding 

this component of the plea deal included the following:

[The Commonwealth] is going to need you to identify the 

[burglaries] that you participated in, and any admissions that 

you make can be used against you if you determine later that 

this [plea is] not something you want to proceed with.

. . .

So you understand that what you say, if you decide at some 

point after you do this proffer with us, that you no longer wish to 

do it, anything that’s on record here will be used against you.

N.T. Statement Under Oath, 3/21/14, at 3-4 (emphasis added). Widmer did 

not object to this condition and proceeded to voluntarily provide the 

Commonwealth with statements admitting to involvement in a large number 

of burglaries he had been suspected of committing.

After Widmer ultimately refused to proceed with the plea agreement, a 

trial was held, during which the Commonwealth introduced Widmer’s 

admissions in the proffer into evidence in the Commonwealth’s case-in-chief. 

This was accomplished through testimony of State Police Trooper William 

Skotleski, who had been present during Widmer’s plea negotiations and 

proffer. Widmer now argues that his understanding of the plea negotiations, 

as they pertained to Rule 410, involved waiver as to the use of his 
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statements for impeachment purposes only and that neither he nor his 

counsel understood that the Commonwealth intended to use his statements 

in its case-in-chief. Widmer merely “concedes[s] that if he had taken the 

stand in his own defense at trial, the Commonwealth could use his proffer 

against him for the purposes of impeachment.” Brief of Appellant, at 10. 

We disagree with this interpretation of the bargain struck between Widmer 

and the Commonwealth.

This Court has recognized “the importance of the plea bargaining 

process as a significant part of the criminal justice system. Under this 

aspect of the system, a defendant is permitted to waive valuable rights in 

exchange for important concessions by the Commonwealth when the 

defendant is facing a slim possibility of acquittal.” Commonwealth v. 

Byrne, 833 A.2d 729, 735 (Pa. Super. 2003) (citations omitted). 

The facts of Byrne involved a plea bargain in which Byrne waived his 

statutory right to credit for time served. In exchange, the Commonwealth 

agreed to forego prosecution for first-degree murder. On appeal, this Court 

rejected Byrne’s request for credit for time served, determining that Byrne’s 

agreement to waive his right to such credit was “the key reason the 

Commonwealth agreed to allow him to plead guilty to third[-]degree 

murder.” Id. at 735. Furthermore, we determined that Byrne’s waiver of 

his statutory right to such credit during plea negotiations was knowing, 

voluntary, and intelligent. Id. at 736. 
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It appears that Pennsylvania courts have not expressly considered 

waiver of the inadmissibility of statements made during plea negotiations 

pursuant to Rule 410. However, noting that “the United States Supreme 

Court has addressed a situation remarkably similar” to that of Byrne, we 

referenced United States v. Mezzanatto, 513 U.S. 196 (1995), in support 

of our conclusion that statutory rights can be waived in the plea negotiation 

process. Byrne, supra, at 736.

Significantly, the circumstances in Mezzanatto align with those of the 

instant matter more closely than any Pennsylvania case to date. Similar to 

the Pennsylvania Rules of Evidence, the Federal Rules of Evidence provide 

that a defendant’s statements made during the plea process are inadmissible 

against the defendant. See F.R.E. 410. In Mezzanatto, the prosecutor 

indicated that as a condition to proceeding with plea discussions, Mezzanatto 

“would have to agree that any statements he made during the meeting could 

be used to impeach any contradictory testimony he might give at trial if the 

case proceeded that far.” Mezzanatto, 513 U.S. at 198. 

Mezzanatto agreed to continue according to the prosecutor’s terms, 

but he eventually was tried on one of the charges and took the stand in his 

own defense. Mezzanatto’s statements during plea negotiations were used 

to impeach him at trial. Mezzanatto appealed regarding the admissibility of 

his prior statements, and, ultimately, the United States Supreme Court held 

that “absent some affirmative indication that the agreement was entered 

into unknowingly or involuntarily, an agreement to waive the exclusionary 
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provisions of [Federal Rule of Criminal Procedure 11(e)(6) and Federal Rule

of Evidence 410] is valid and enforceable.” Id. at 210. 

Instantly, the Commonwealth made the waiver of Widmer’s Rule 410 

rights a condition of its plea bargain offer to Widmer. Significantly, prior to 

Widmer’s proffer, the ADA unequivocally indicated that Widmer’s statements 

would be used at trial if the plea was not made as agreed. The plain 

meaning of this condition, to which Widmer agreed, is clear: Widmer’s 

statements definitively would be used. Moreover, the Commonwealth 

provided no indication that the use of Widmer’s statements would depend 

upon whether Widmer decided to testify. Indeed, though Widmer asserts his 

statements could have been used only to impeach him if he took the stand, 

no such caveats were included in the ADA’s explanation of the waiver. 

Widmer also argues that when the Commonwealth indicated that his 

statements would be used against him at trial, the Commonwealth must 

have been referring to Pa.R.E. 410(b), which provides an exception to 

otherwise inadmissible statements made during plea negotiations.6 This 

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6 Rule 410(b) includes the following:

(b) Exceptions. The court may admit a statement described in 

Rule 410(a)(3) or (4): 

(1) in any proceeding in which another statement made 

during the same plea or plea discussions has been 

introduced, if in fairness the statements ought to be 

considered together[.]

Pa.R.E. 410(b).
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argument appears to conflate the Commonwealth’s condition that Widmer 

waive his Rule 410 rights with an exception that would apply even if the 

Commonwealth did not require such a waiver. Additionally, Rule 410(b) 

would apply only if Widmer first introduced a statement that permitted the 

Commonwealth to introduce another statement from plea negotiations in the 

interest of fairness. Again, this is inconsistent with the Commonwealth’s 

clear explanation that Widmer’s statements would be used against him at 

trial, subject to no condition that Widmer testify. Thus, we find this 

argument to be without merit. 

Ultimately, it is clear that the rights provided for in Rule 410 are 

waivable. See Byrne, supra. Furthermore, because the Commonwealth’s 

presentation of the condition requiring Widmer to waive his rights under Rule 

410 clearly indicated the Commonwealth’s intent to use Widmer’s 

statements regardless of whether he testified at trial, we find that Widmer’s 

contention that neither he nor defense counsel understood the terms of the 

agreement with the Commonwealth to be unpersuasive.7 Accordingly, we 

cannot find that Widmer’s waiver was unknowing or involuntary. See

Byrne, supra, at 735. Finally, Widmer was a suspect in over thirty different 

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7 We note that if confusion existed regarding the waiver the Commonwealth 

required of Widmer, defense counsel had ample opportunity to clarify the 

ADA’s meaning. However, no clarification was requested. Moreover, we find 

that the ADA’s explanation of the consequences should Widmer fail to follow 

through with the plea was clear and unequivocal.
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burglary cases, and substantial circumstantial evidence existed to implicate 

Widmer for the burglary for which he was charged in the instant matter. 

Thus, Widmer’s chances of acquittal were relatively slim. See id. at 735. 

We find that Widmer’s waiver of his rights under Rule 410 meets all of 

the conditions we have previously set forth regarding this type of waiver in 

the plea bargaining context. Thus, the trial court did not err in admitting 

into evidence the statements Widmer made during plea negotiations with the 

Commonwealth.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/20/2015