J-S37003-16 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

LANA KAY ROE 

 Appellant No. 138 WDA 2015 

Appeal from the Judgment of Sentence March 28, 2014

In the Court of Common Pleas of Greene County 

Criminal Division at No(s): CP-30-CR-0000343-2012; 

CP-30-CR-0000344-2012 

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

MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 13, 2016 

 Appellant, Lana Kay Roe, appeals from the judgment of sentence 

entered in the Greene County Court of Common Pleas, following her jury 

trial convictions of first-degree murder and false reports to law enforcement 

authorities.1 We affirm. 

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

Around June 2012, Appellant and her husband, Jason William Roe, moved to 

Daisytown, Pennsylvania, and befriended their neighbor, Cordele Patterson 

(“Victim”). Later that summer, Appellant and Mr. Roe experienced marital 

difficulties, which resulted in both parties moving out of their residence in 

____________________________________________ 

1

 18 Pa.C.S.A. §§ 2502(a) and 4906(a), respectively. 
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Daisytown. During the separation, and without Mr. Roe’s knowledge, 

Appellant sold two of the couple’s firearms. In early August 2012, Appellant 

and Mr. Roe reconciled and returned home to discover that someone had 

burglarized their home while they were away. Appellant contacted police 

and reported the incident. In her report, Appellant informed police that 

Victim had taken numerous items from the home including twelve firearms; 

however, only ten firearms were taken in the burglary. The two additional 

firearms listed in the report were the ones Appellant sold during her 

separation from Mr. Roe. 

 In the early morning hours of August 14, 2012, Mr. Roe took Victim to 

a cabin owned by the Brewer family. Mr. Roe allegedly took Victim there to 

hide because of the police report filed by Appellant. After dropping Victim 

off, Mr. Roe returned to Daisytown where he and Appellant went to Victim’s 

home and started removing items that allegedly belonged to them. 

Appellant and Mr. Roe then drove Appellant’s Jeep out to the cabin. On the 

way to the cabin, Appellant and Mr. Roe stopped at a True Value hardware 

store and purchased a 12-gauge shotgun as well as buckshot and birdshot 

ammunition. Appellant and Mr. Roe stopped again on the way to the cabin, 

so Mr. Roe could test-fire the shotgun. When Appellant and Mr. Roe reached 

the cabin, Mr. Roe told Appellant to go inside and get Victim. Appellant 

complied; and, as she returned from the cabin with Victim behind her, Mr. 

Roe shot Appellant in the face. Victim turned around and ran back into the 
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cabin, while Appellant ran to her Jeep and drove away. Mr. Roe chased 

Victim into the cabin and fatally shot Victim. 

 After Mr. Roe shot her, Appellant drove to a neighbor’s house; the 

neighbor called the police and reported the shooting. Police and paramedics 

responded to the neighbor’s house, and paramedics transported Appellant to 

Ruby Memorial Hospital in Morgantown, West Virginia. Police then 

proceeded to the cabin where they discovered Victim’s body. Meanwhile, Mr. 

Roe fled from the cabin on foot and borrowed a white van from a nearby 

relative. Mr. Roe subsequently drove the van to West Virginia, where West 

Virginia authorities apprehended him. In the evening of August 14, 2012, 

Pennsylvania police interviewed Appellant at the hospital. At the time, police 

regarded Appellant as a victim. On August 15, 2012, police conducted a 

second interview of Appellant at the cabin where the shooting occurred. 

Police still considered Appellant a victim at this time. After learning of 

various inconsistencies in Appellant’s account of the shooting, police 

interviewed Appellant again on August 24, 2012. This time police suspected 

Appellant’s involvement in Victim’s shooting, so Corporal Jeremy Barni read 

Appellant her Miranda2 rights prior to the interview. After Appellant waived 

her rights, police questioned Appellant for over two hours. During this time, 

Appellant admitted various facts that implicated her involvement in Victim’s 

____________________________________________ 

2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 
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murder. Appellant invoked her right to an attorney at the conclusion of the 

interview. 

 On September 20, 2012, the Commonwealth charged Appellant with 

criminal homicide and false reports to law enforcement authorities at two 

separate dockets. The Commonwealth also charged Mr. Roe with criminal 

homicide and aggravated assault. On October 23, 2012, Appellant filed an 

omnibus pre-trial motion in which she asked the court to sever her case 

from Mr. Roe’s case for purposes of trial. After a hearing, the court agreed 

to sever Appellant’s false reports to law enforcement authorities charge on 

March 12, 2013, based on concerns that it would cause jury confusion in Mr. 

Roe’s case. On November 5, 2013, Appellant proceeded to a joint jury trial 

with Mr. Roe on the criminal homicide charge. The trial resulted in Mr. Roe’s 

conviction of first-degree murder on November 15, 2013. That same day, 

the court declared a mistrial with respect to Appellant’s criminal homicide 

charge because the jury was unable to reach a verdict. 

 Following the mistrial, the court set a new trial date for Appellant’s 

case. On November 27, 2013, the Commonwealth filed a motion to 

consolidate Appellant’s criminal homicide charge and false reports to law 

enforcement authorities charge. In its motion, the Commonwealth argued 

the risk of jury confusion no longer existed due to Mr. Roe’s conviction. The 

court granted the motion on December 10, 2013. On January 6, 2014, 

Appellant filed a motion to sever the charges, which the court denied on 
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January 13, 2014. Appellant proceeded to a jury trial on March 24, 2014. 

During trial, the Commonwealth asked Corporal Barni a question, which 

resulted in a reference to Appellant’s request for an attorney. Immediately 

after the reference, Appellant’s counsel moved for a mistrial. The court 

denied the mistrial, but it did give a cautionary instruction about the 

reference to the jury. On March 28, 2014, the jury convicted Appellant of 

first-degree murder and false reports to law enforcement authorities. 

 Immediately following Appellant’s conviction, the court sentenced 

Appellant to life imprisonment without the possibility of parole for the firstdegree murder conviction, and a concurrent term of one (1) to two (2) 

years’ imprisonment for the false reports to law enforcement authorities 

conviction. Appellant timely filed a post-sentence motion on March 31, 

2014, which the court denied on December 22, 2014. Appellant timely filed 

a notice of appeal on January 21, 2015.3 The court did not order Appellant 

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3

 “A direct appeal in a criminal proceeding lies from the judgment of 

sentence.” Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa.Super. 

2007), appeal denied, 599 Pa. 691, 960 A.2d 838 (2008). If a defendant in 

a criminal case files a timely post-sentence motion, the notice of appeal shall 

be filed within 30 days of the entry of the order deciding the motion. 

Pa.R.Crim.P. 720(A)(2)(a). The denial of a timely post-sentence motion 

becomes the triggering event for filing a notice of appeal. Pa.R.Crim.P. 

720(A)(2). Generally, where a defendant timely files a post-sentence 

motion, the court shall decide the motion within 120 days of the filing; 

otherwise, the motion shall be deemed denied by operation of law. See

Pa.R.Crim.P. 720(B)(3)(a). A clerk of courts’ failure to enter an order 

stating a post-sentence motion has been denied by operation of law and to 

furnish the parties with a copy of the order, however, constitutes a 

(Footnote Continued Next Page) 
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to file a concise statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(b), and Appellant filed none.4 

 Appellant raises the following issues for our review: 

WHETHER...APPELLANT’S STATE AND FEDERAL DUEPROCESS-RIGHTS TO A FAIR TRIAL WERE VIOLATED: 

(Footnote Continued) _______________________ 

breakdown in the court system. Commonwealth v. Braykovich, 664 A.2d 

133, 138 (Pa.Super. 1995), appeal denied, 544 Pa. 622, 675 A.2d 1242 

(1996). Such a breakdown warrants extension of the appeal period or the 

grant of an appeal nunc pro tunc. Id. Instantly, the record makes clear 

Appellant timely filed her post-sentence motion. The court did not hold a 

hearing or rule on the motion within 120 days (no extension was requested). 

Thus, the post-sentence motion was deemed denied by operation of law. 

Nevertheless, the clerk of courts failed to enter a Rule 720(B)(3)(c) order on 

behalf of the court, which constitutes a breakdown in the court system. See 

id. The trial court actually denied the post-sentence motion on December 

22, 2014. Therefore, we will treat the December 22, 2014 order as a Rule 

720(B)(3)(c) order solely for purposes of the date on which Appellant’s 

appeal period began to run. Appellant timely filed her notice of appeal on 

January 21, 2015, within the 30-day appeal period, so we have no 

impediment to appellate jurisdiction. See Patterson, supra (stating 

appellate court can raise issue of jurisdiction sua sponte). 

4

 Over one year after her appellate brief was filed on March 3, 2015, and 

while still represented by counsel of record, Appellant filed a pro se motion 

on April 4, 2016, to proceed on appeal separately from Mr. Roe (whose 

appeal is docketed at No. 130 WDA 2015 and separately listed at J-S37002-

16). In the same motion, Appellant requested new counsel for her appeal. 

We deny the motion in its entirety. See Commonwealth v. Ellis, 534 Pa. 

176, 626 A.2d 1137 (1993) (proscribing hybrid representation). See also 

Commonwealth v. Jette, 611 Pa. 166, 23 A.3d 1032 (2011) (reiterating 

rule that court will not consider pro se filings of defendant who is 

represented by counsel of record; stating that absent timely motion for 

change of counsel, in which appellant can demonstrate irreconcilable 

differences which preclude counsel from representing her, or timely petition 

for self-representation, or retention/appointment of new counsel, appellant 

must remain with current counsel through conclusion of appeal; in this 

context, “timely” means motion or petition must be filed before filing of 

counseled brief). 
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A. WHEN THE TRIAL COURT CONSOLIDATED 

WITHOUT A HEARING APPELLANT’S CASES AND 

DENIED WITHOUT A HEARING APPELLANT’S MOTION 

TO SEVER AFTER THE PARTIES AGREED AND 

STIPULATED TO SEVERANCE IN EXCHANGE FOR 

WITHDRAWAL OF APPELLANT’S SUPPRESSION 

MOTION? 

B. WHEN THE TRIAL COURT DENIED APPELLANT’S 

MOTION FOR MISTRIAL AFTER THE 

COMMONWEALTH COMMENTED IN A LEADING 

QUESTION TO THE LEAD INVESTIGATOR DURING 

ITS CASE-IN-CHIEF ABOUT APPELLANT’S REQUEST 

FOR AN ATTORNEY AND SUBSEQUENT SILENCE? 

WHETHER THE TRIAL COURT’S CURATIVE INSTRUCTION 

WAS SUFFICIENT TO SATISFY DUE PROCESS? 

WHETHER THE JURY VERDICT IS SUPPORTED BY THE 

WEIGHT AND SUFFICIENCY OF THE EVIDENCE? 

(Appellant’s Brief at 5).5 

 In issue 1(A), Appellant argues that prior to her first trial, the 

Commonwealth agreed to sever her criminal homicide charge and false 

reports to law enforcement authorities charge in exchange for Appellant’s 

withdrawal of her suppression motion. Appellant avers the court 

implemented this agreement in the first trial, and it should have enforced 

the agreement in her second trial. Appellant further claims the temporal 

remoteness of the false police report and the homicide did not warrant 

____________________________________________ 

5

 In Appellant’s brief, counsel concedes the evidence was sufficient to 

support the jury’s verdict. Counsel further concedes the jury’s verdict was 

not against the weight of the evidence. Therefore, we will not address 

Appellant’s third issue on appeal. 
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consolidation of the charges. Appellant concludes the court abused its 

discretion when it consolidated Appellant’s charges without a hearing on 

either the Commonwealth’s motion to consolidate or Appellant’s motion to 

sever, and this Court should vacate her judgment of sentence, sever the 

charges, and remand for new, separate trials. We disagree. 

 Our standard of review for the denial of a severance motion is as 

follows: 

A motion for severance is addressed to the sound 

discretion of the trial court, and...its decision will not be 

disturbed absent a manifest abuse of discretion. The 

critical consideration is whether the appellant was

prejudiced by the trial court’s decision not to sever. The 

appellant bears the burden of establishing such prejudice. 

Commonwealth v. Mollett, 5 A.3d 291, 305 (Pa.Super. 2010), appeal 

denied, 609 Pa. 686, 14 A.3d 826 (2011). 

 The Pennsylvania Rules of Criminal Procedure govern the joinder and 

severance of offenses as follows: 

Rule 582. Joinder—Trial of Separate Indictments or 

Informations 

(A) Standards 

(1) Offenses charged in separate indictments or 

informations may be tried together if: 

(a) the evidence of each of the offenses would be 

admissible in a separate trial for the other and is

capable of separation by the jury so that there is no 

danger of confusion; or 

(b) the offenses charged are based on the same act 

or transaction. 
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Pa.R.Crim.P. 582(A)(1). 

Rule 583. Severance of Offenses or Defendants 

The court may order separate trials of offenses or 

defendants, or provide other appropriate relief, if it 

appears that any party may be prejudiced by offenses or 

defendants being tried together. 

Pa.R.Crim. 583. “Under Rule 583, the prejudice the defendant suffers due to 

the joinder must be greater than the general prejudice any defendant suffers 

when the Commonwealth’s evidence links him to a crime.” Commonwealth 

v. Dozzo, 991 A.2d 898, 902 (Pa.Super. 2010), appeal denied, 607 Pa. 709, 

5 A.3d 818 (2010). 

The prejudice of which Rule [583] speaks is, rather, that 

which would occur if the evidence tended to convict [the] 

appellant only by showing his propensity to commit crimes, 

or because the jury was incapable of separating the

evidence or could not avoid cumulating the evidence. 

Additionally, the admission of relevant evidence connecting 

a defendant to the crimes charged is a natural 

consequence of a criminal trial, and it is not grounds for 

severance by itself. 

Commonwealth v. Lauro, 819 A.2d 100, 107 (Pa.Super. 2003), appeal 

denied, 574 Pa. 752, 830 A.2d 975 (Pa. 2003) (internal citations and 

quotation marks omitted). 

 Reading Rules 582 and 583 together, our Supreme Court established 

the following test for severance matters: 

Where the defendant moves to sever offenses not based 

on the same act or transaction...the court must therefore 

determine: [1] whether the evidence of each of the 

offenses would be admissible in a separate trial for the 
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other; [2] whether such evidence is capable of separation 

by the jury so as to avoid danger of confusion; and, if the 

answers to these inquiries are in the affirmative, [3] 

whether the defendant will be unduly prejudiced by the 

consolidation of offenses. 

Dozzo, supra (quoting Commonwealth v. Collins, 550 Pa. 46, 55, 703 

A.2d 418, 422 (1997), cert. denied, 525 U.S. 1015, 119 S.Ct. 538, 142 

L.Ed.2d 447 (1998). 

 “[W]hen reprosecution subsequent to the grant of a mistrial is not 

barred, the proceedings revert to a pretrial status as though the original trial 

had never occurred.” Commonwealth v. Mulholland, 549 Pa. 634, 652, 

702 A.2d 1027, 1035-36 (1997). Significantly, the parties are free to relitigate pre-trial rulings when the facts governing the issue have changed 

between the first and second trial. Id. at 652, 702 A.2d at 1036. 

 Instantly, prior to Appellant’s joint trial with Mr. Roe, the court severed 

Appellant’s false reports to law enforcement authorities charge, based on 

jury confusion concerns with respect to Mr. Roe. Appellant subsequently 

proceeded to a joint trial with Mr. Roe on the criminal homicide charge, 

which resulted in Mr. Roe’s conviction of first-degree murder and a mistrial 

for Appellant. After the court declared a mistrial, the Commonwealth sought 

to consolidate Appellant’s criminal homicide charge and false reports to law 

enforcement authorities charge on November 27, 2013. The court granted 

the Commonwealth’s request without a hearing on December 10, 2013. The 

court then denied Appellant’s January 6, 2014 motion to sever the charges 
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on January 13, 2014. 

 After the court’s declaration of a mistrial as to Appellant’s criminal 

homicide charge, Appellant’s case returned to its pre-trial status. See 

Mulholland, supra. Importantly, unlike the first trial, jury confusion was 

not a concern in the second trial because Mr. Roe was no longer a codefendant. This factual change justified the court’s reevaluation of the 

severance issue. Id. Further, the criminal homicide charge and false 

reports to law enforcement authorities charge were not temporally remote. 

Appellant filed the police report, which implicated Victim in the burglary and 

contained false information, four days prior to Victim’s murder. Appellant 

and Mr. Roe then used the police report to lure Victim to the cabin where the 

shooting occurred. Thus, the police report was integral to the 

Commonwealth’s prosecution of Appellant’s criminal homicide charge. In 

fact, the Commonwealth introduced the police report and false information in 

Appellant’s first trial to establish the motive for the homicide. See Dozzo, 

supra. Under these circumstances, Appellant failed to demonstrate the risk 

of undue prejudice necessary to warrant severance of the charges. See 

Lauro, supra. Therefore, the court properly granted the Commonwealth’s 

motion to consolidate the charges, and issue 1(A) warrants no relief. See 

Mollett, supra. 

 In issue 1(B) and issue (2), Appellant argues the Commonwealth made 

an improper reference at trial to Appellant’s request for an attorney and 
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subsequent silence. Appellant avers the prosecutor’s question to Corporal 

Barni elicited a reference that had no purpose other than to imply 

Appellant’s guilt. Appellant maintains the improper reference prejudiced 

Appellant’s presumption of innocence because no juror could disregard 

Appellant’s request for an attorney. Appellant further submits the court’s 

curative instruction did not overcome the prejudice caused by the improper 

reference. Appellant concludes the court abused its discretion when it 

denied Appellant’s motion for a mistrial, and this Court should vacate her 

judgment of sentence and remand for a new trial. We disagree. 

 “[T]he review of a trial court’s denial of a motion for mistrial is limited 

to determining whether the trial court abused its discretion.” 

Commonwealth v. Brooker, 103 A.3d 325, 332 (Pa.Super. 2014), appeal 

denied, ___ Pa. ___, 118 A.3d 1107 (2015). “An abuse of discretion is not 

merely an error of judgment, but if in reaching a conclusion the law is 

overridden or misapplied, or the judgment exercised is manifestly 

unreasonable, or the result of partiality, prejudice, bias or ill-will...discretion 

is abused.” Id. 

It is a clear violation of [a defendant’s] constitutional right 

against self-incrimination to make a reference at trial to 

his silence while in police custody. Not every such 

reference, however, requires a new trial. Prompt and 

adequate cautionary instructions can cure what might 

otherwise be reversible error. 

Commonwealth v. Gbur, 474 A.2d 1151, 1154 (Pa.Super. 1984) (internal 

citations omitted). To evaluate whether cautionary instructions can cure a 
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reference to a defendant’s silence, “courts must consider 1) the nature of 

the reference to the defendant’s silence; 2) how it was elicited; 3) whether 

the district attorney exploited it; and 4) the promptness and adequacy of the 

cautionary instruction.” Commonwealth v. Moury, 992 A.2d 162, 176 

(Pa.Super. 2010). 

 A reference to a defendant’s silence could also constitute harmless 

error. Commonwealth v. Boone, 862 A.2d 639, 646 (Pa.Super. 2004). 

The reference is harmless error if: 

[T]he appellate court concludes beyond a reasonable doubt 

that the error could not have contributed to the verdict. If 

there is a reasonable possibility that the error may have 

contributed to the verdict, it is not harmless. In reaching 

that conclusion, the reviewing court will find an error 

harmless where the uncontradicted evidence of guilt is 

overwhelming, so that by comparison the error is 

insignificant. The burden of establishing that the error was 

harmless rests upon the Commonwealth. 

Commonwealth v. Mitchell, 576 Pa. 258, 280, 839 A.2d 202, 214-15 

(2003). 

 Instantly, the trial court addressed the reference to Appellant’s silence 

and her request for a mistrial as follows: 

[Appellant] believes she is entitled to a new trial because 

the prosecution called attention to her request to speak to 

an attorney. 

In this case, [Appellant] had three extensive interviews 

with the investigating officers. The first interview was on 

August [14], 2012, in the emergency room of Ruby 

Memorial Hospital after the shooting. The second 

interview was August 15, 2012, which took place at the 

scene of the shooting and was videotaped. The third 
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interview was on August 24, 2012, at the state police 

barracks in Waynesburg. On August 14 and 15, 

[Appellant] was considered to be a victim as opposed to a 

suspect because she had been shot at the same time and 

place as [Victim]. By August 24, 2012, investigators had 

gathered additional evidence and had become aware of 

discrepancies in [Appellant’s] version of events. This 

interview lasted over two hours. The interview began with 

the officer [formally] advising [Appellant] of her rights to 

an attorney and her right to say nothing. [Appellant] 

acknowledged those rights and signed a waiver. ...[T]he 

following exchange occurred in [c]ourt [with respect to this 

interview]: 

Q [ADA Chambers]: And did she sign a written 

waiver of her rights? 

A [Trooper Barni]: Yes, she does. It’s a form, our

form, explains the, her rights waivers, and that she 

voluntarily agrees to talk to us. 

Q: Okay. And you also advised her she had a right 

to an attorney? 

A: That’s right. 

Q: At some point during the interview did she invoke 

that right? 

A: At the very end of the interview, she did. 

At that moment, defense counsel approached the bench 

and at side bar moved for a mistrial. The motion was 

denied and [the court] gave the following instruction to the 

jury: 

Ladies and gentlemen, if there was any mention of 

[Appellant’s] request for an attorney, it has nothing 

to do with the guilt or innocence of [Appellant]. As I 

said at the very beginning, a person accused of a 

crime or even suspected of a crime need say 

nothing. And not only need a suspect say nothing, 

but that silence cannot be used against her. 

Whether or not it should have been mentioned 
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today, you must put it out of your mind, it has 

nothing whatsoever to do with [Appellant’s] guilt or 

innocence of anything she is charged with. 

* * * 

If any reference to an accused’s exercise of her right to 

[an] attorney was minimally prejudicial, it was this case. 

The fact of the matter is, [Appellant] was not silent. She 

talked to investigators for many hours on August 14 and 

15 and she talked to them for over two hours on August 

24, after she had been advised of her rights and before 

she finally asked to speak to an attorney. ...Here, there 

was not much silence. [Appellant] invoked her right to 

silence only after extensively reviewing all the relevant 

events. 

Next, we consider how it was elicited. Frankly, we are at a 

loss to explain what the [prosecutor] intended to elicit. 

Usually, statements about an accused’s silence are made 

in response to some more general inquiry, such as “what 

happened next?” Here, the question expressly asked

whether [Appellant] invoked her right to [an attorney]. 

The trooper answered that she did, but did not until the 

conclusion of the interview. However, the inquiry went no 

further. 

Third, the [prosecutor] did not exploit the disclosure by the 

police officer. There was no further reference to 

[Appellant’s] request and the topic did not come up in 

closing arguments. 

Finally, we believe that our cautionary instruction

effectively instructed the jury to ignore the reference to 

[Appellant’s] request for an attorney because there was 

abundant testimony that she talked to the officers 

repeatedly and at length. 

* * * 

The cautionary instruction as well as the lengthy account 

by Trooper Barni of his interviews with [Appellant]

sufficiently protected her from any prejudice arising from 

the jury’s knowledge of her request for counsel at the end 
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of an extensive conversation with the investigating

officers. 

(See Trial Court Opinion, filed December 22, 2014, at 2-6). The record 

supports the court’s sound reasoning. See Brooker, supra. Therefore, 

Appellant’s issues 1(B) and 2 warrant no relief. Based upon the foregoing, 

we affirm the judgment of sentence. 

 Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 10/13/2016