Commonwealth v. Crispell, D., Aplt. ( 2018 )

[J-97A&B-2017][M.O. - Wecht, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : Nos. 722 & 723 CAP
:
: Appeal from the Order dated 1/6/16 and
Appellee/Cross-Appellant : entered on the docket on 1/12/16 in the
: Court of Common Pleas, Clearfield
: County, Criminal Division at No. CP-17-
: 0000062-1990
v. :
:
:
DANIEL CRISPELL, :
:
Appellant/Cross-Appellee : SUBMITTED: December 6, 2017
CONCURRING AND DISSENTING OPINION
CHIEF JUSTICE SAYLOR DECIDED: September 21, 2018
I join Parts I, II(A) and (D), and III of the majority opinion, concur in the result as
to Part II(B), and respectfully dissent as to Part II(C).
With reference to Part II(B), I have difficulty with the majority’s conclusion that
trial counsel could have had no reasonable strategy for failing to adduce evidence that
Christopher Weatherill had scratches on his arms and chest at the time of his arrest.
See Majority Opinion, slip op. at 14-15. Along these lines, the majority itself ultimately
reasons that “the inference that Crispell would have asked the jury to draw from
Weatherill’s scratches was inconsistent with and undermined by other uncontradicted
evidence of record,” id. at 22-23.1 Notably, moreover, trial counsel relied upon just such
reasoning, at the PCRA hearing, in defending his stewardship. See, e.g., N.T., March
31, 2014, at 101-102 (reflecting counsel’s explanation, relative to evidence of the
scratches, that “I don’t know what use this would have been,” inter alia, in light of his
understanding that the scrapings from fingernail clippings from the victim did not contain
Weatherill’s DNA). I know of no authority requiring counsel to potentially undermine the
credibility of the defense by pursuing every possibly favorable inference, no matter how
weak or unsubstantiated.2
Part II(C) concerns trial counsel’s stewardship in failing to seek to exclude (or at
least secure a limiting instruction relative to) evidence of a subsequent attempted purse
1 While I agree with this reasoning, I note the apparent tension between it and the
majority’s initial assessment that the evidence concerning Weatherill’s scratches “might
tip the balance in favor of the defendant” and supports a “reasonable inference that, as
Crispell testified, Weatherill was the killer.” Majority Opinion, slip op. at 14-15.
2 In this regard, I observe that Appellant related in his statement to police, which was
presented to the jury, that he and Weatherill carried the body of the victim through the
woods, that Weatherill tripped on a rock and fell to the ground, and that a window in the
car the pair was driving was shattered in an accident. In other words, there were
multiple alternative explanations for the scratches.
In terms of the majority’s prejudice assessment, to the degree that the majority relies on
the testimony of jailhouse informant Donald Skinner, see Majority Opinion, slip op. at 22
(positing that “it comes down to Skinner’s testimony alone”), I take this opportunity to
note my agreement with those jurisdictions which have found such testimony to be
“inherently suspect.” State v. Diaz, 25 A.3d 594, 606 (Conn. 2011) (discussing “the
ease with which such testimony can be fabricated, the difficulty in subjecting witnesses
who give such testimony to meaningful cross-examination and the great weight that
juries tend to give to confession evidence”); see also State v. Marshall, 882 N.W.2d 68,
81–83 (Iowa 2016) (explaining that “[t]he problem of proof, along with questions of
reliability, have given rise to requiring some corroboration of jailhouse informant
testimony to support a conviction in at least eighteen states”). See generally Jessica A.
Roth, Informant Witnesses and the Risk of Wrongful Convictions, 53 AM. CRIM. L. REV.
737, 765-84 (2016).
[J-97A&B-2017][M.O. – Wecht, J.] - 2
snatching from an elderly woman, resulting in her falling to the ground. The majority
concludes that trial counsel’s dereliction in this regard “aided the defense” by permitting
Appellant to further contextualize his claim that he acted under Weatherill’s influence
and control. Majority Opinion, slip op. at 27.
Respectfully, I find this reasoning to be unpersuasive. Regardless of Weatherill’s
involvement, the evidence was that Appellant, by his own action, engaged in assertive
criminal conduct that resulted in potential injury to an elderly woman. From this
dangerous altercation, the jury might infer that Appellant had little regard for the
wellbeing of others, providing an otherwise impermissible character-based reason
bolstering the Commonwealth’s theory that Appellant killed Mrs. Brown. Cf.
Commonwealth v. Billa, 521 Pa. 168, 179–80, 555 A.2d 835, 841–42 (1989) (explaining
that cautionary instructions are generally required, in connection with the admission of
other-bad-acts evidence, precisely to discourage such impermissible inferences).
Significantly, moreover, Appellant had ample opportunity otherwise to explain that
Weatherill was the leader and the killer. And it is important to note that, as a self-
admitted accomplice to the robberies of Mrs. Brown and the elderly woman, Appellant’s
testimony relative to Weatherill’s involvement would likely cause circumspection on the
jurors’ part in all events. See, e.g., Commonwealth v. Bubna, 357 Pa. 51, 66, 53 A.2d
104, 112 (1947) (“It is a matter of general knowledge that partners in crime are likely
when apprehended to cast the chief blame on each other.”).3
3 The Bubna Court went on to explain that “[i]t is also equally well known that partners in
crime sometimes do tell the truth as to the commission of the crime.” Id. The fact that a
defendant may be telling the truth, however, does not diminish the likelihood that jurors
will accord lesser weight to the testimony of one who is unable to credibly deny his
involvement in a criminal episode but seeks to blame others where the proof is not
ironclad.
[J-97A&B-2017][M.O. – Wecht, J.] - 3
At bottom, it seems to me that the risk that the jurors would draw negative
implications from the purse-snatching incident far outweighs the “aid” the majority
attributes to the evidence. In this regard, it is noteworthy that trial counsel did not
ascribe, in any fashion, to having sought to pursue such purported advantage.
Particularly given the majority’s explanation that a jailhouse informant’s testimony
is the sole evidence implicating Appellant (as opposed to Weatherill) as the killer,
Majority Opinion, slip op. at 22, I cannot agree with its conclusion that trial counsel’s
failure to seek the exclusion of the other-bad-acts evidence, or at least to secure a
limiting instruction, was non-prejudicial. Accord supra note 2. Thus, I would award a
new trial.
[J-97A&B-2017][M.O. – Wecht, J.] - 4