Commonwealth v. Murphy, K., Aplt. ( 2016 )

[J-25-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 699 CAP
:
Appellee : Appeal from the Judgment of Sentence
: entered on 5/9/13 in the Court of
: Common Pleas of Westmoreland
v. : County, Criminal Division at No. CP-65-
: CR-0001991-2010
KEVIN MURPHY, :
:
Appellant : ARGUED: October 6, 2015
: RESUBMITTED: January 20, 2016
OPINION
MR. CHIEF JUSTICE SAYLOR DECIDED: March 29, 2016
This is a capital direct appeal.
On April 23, 2009, in Loyalhanna Township, Westmoreland County, Appellant
shot and killed his mother, Doris Murphy, his sister, Kris Murphy, and his aunt, Edith
Tietge. He was charged with multiple counts of murder, and the Commonwealth
tendered notice of its intention to pursue the death penalty. In a trial before a jury in
2013, Appellant was convicted of the first-degree murder of each of the victims; the
jurors returned a death verdict in the ensuing penalty proceedings.1 Appellant pursued
post-sentence relief in the trial court, which was denied, and this direct appeal followed.
1
It appears that the jury considered the imposition of the death penalty relative to the
victims on a unitary basis. In imposing sentence, the trial court attached the death
verdict to the killing of Doris Murphy and imposed life sentences based on the
(continued>)
I. Evidentiary Matters
Three of the five challenges to the judgment of sentence presently raised by
Appellant center on the adequacy of the Commonwealth’s evidence of his guilt. Initially,
there is no question that most of the elements of first-degree murder are established
relative to the obviously intentional and malicious killings of Appellant’s family members.
See generally Commonwealth v. Maisonet, 612 Pa. 539, 546, 31 A.3d 689, 693 (2011)
(explaining that, to obtain a first-degree murder conviction, the Commonwealth must
prove that: a human being was unlawfully killed; the defendant was the killer; and the
defendant acted with malice and a specific intent to kill (citing, inter alia, 18 Pa.C.S.
§§2501, 2502(a))).2 Appellant claims, however, that the Commonwealth failed to
demonstrate, adequately, his identity as the killer.
At trial, the Commonwealth proceeded on the theory that Appellant’s motive for
murdering his family members was to eliminate difficulties deriving from their
disapproval of Appellant’s romantic relationship with a married woman, Susan McGuire,
whom Appellant wished to bring to live at his residence. See, e.g., N.T., Apr. 24, 2013,
at 473-74, 501-03; N.T., Apr. 26, 2013, at 835-838. By way of some elemental
background, it is undisputed that Appellant, his mother (Doris), and his sister (Kris) lived
together, and that Kris was an employee at Appellant’s business, Ferguson Glass,
where Doris and Appellant’s aunt (Edith) volunteered. Of further significance to the
(>continued)
convictions for the other two murders. No issues are presently raised concerning this
approach.
2
At trial, the Commonwealth presented undisputed testimony from a pathologist
confirming both the cause and manner of the deaths, in which each of the three victims
was shot in the head. See N.T., Apr. 29, 2013, at 979-1015.
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case, the business premises was adjacent to a farm owned by Appellant’s uncle, Roy
Martin, where Appellant assisted with the farm work.
The prosecution presented testimony from John Krivascy, a friend of Appellant’s,
who explained that, a few months prior to the killings, Appellant called seeking advice
about acquiring a gun, explaining that he wished to shoot groundhogs. See N.T., Apr.
25, 2013, at 534.
Commonwealth witness Charles Modrey, who was Appellant’s neighbor, testified
that shortly before the day of the murders, Appellant had related that he had a “girlfriend
that was coming” to his residence, but that Doris and Kris disapproved. Id. at 548.
Furthermore, according to Mr. Modrey’s account, Appellant proceeded to inquire
whether the witness knew anyone who could help “get rid of his problem.” Id. at 550.
Evidence was adduced to the effect that, in the days immediately before the
killing, a .22 caliber pistol owned by Appellant was brought to the Ferguson Glass
business premises, although no firearm had otherwise ever been kept there. See N.T.,
Apr. 23, 2013, at 281-85.3 Witnesses testified that, subsequently, Appellant gave varied
accounts to explain why the weapon was present. See, e.g., N.T., Apr. 24, 2013, at 470
(reflecting testimony from an investigating officer that Appellant had indicated that the
handgun was present for protection); id. at 472 (reflecting another officer’s testimony
that Appellant had said that the pistol was taken to the premises so that he could shoot
a raccoon that had been trapped on the farm premises).4
3
Appellant’s sister, Kris, physically carried the firearm into the building. See id.
4
In terms of the account of the raccoon, the evidence showed that such an animal
recently had been caught in a trap on the farm premises. On cross-examination in the
defense case, however, Appellant’s uncle explained that he had killed it with a rifle that
he owned and maintained on the farm premises. See N.T., Apr. 30, 2013, at 1283-84.
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The Commonwealth showed that, during the morning of April 23, 2009, Appellant
told an employee that he was “shooting at birds and got a gun burn on his hand.” N.T.,
Apr. 24, 2013, at 325-326, 332-333.
The prosecution further established that, on that day, Susan McGuire was served
with divorce papers and that she and Appellant communicated. See id. at 474; N.T.,
Apr. 29, 2013, at 1053-1054; accord N.T., May 2, 2013, at 1658 (reflecting Appellant’s
testimony during the defense case that Susan McGuire had called in the afternoon on
April 23, 2009, and said that she had been served with divorce papers).
The Commonwealth also presented evidence that, that afternoon, Appellant took
measures to keep other individuals away from the Ferguson Glass business premises.
For example, a hunter who normally parked at the entranceway to the Martin farm
(which, again, was adjacent to the glass business) related to the jury that Appellant had
authorized him to drive across a portion of the Martin farm over which the hunter
normally walked. See N.T., Apr. 24, 2013, at 373-374. Around four o’clock in the
afternoon, Appellant called a driver who was on his way to deliver glass to inquire as to
his anticipated arrival time. See id. at 359.5
Upon returning from an animal auction in the early evening, Mr. Martin
discovered the victims’ bodies in the Ferguson Glass shop and summoned Appellant
from the farm. See id. at 407. When ambulance personnel arrived, Appellant, in his
words, was “worked up,” and he was taken to the hospital. Id. at 408.6
5
Mr. Martin also testified, during cross-examination in the defense case, that Appellant
had told him to stay at an animal auction that afternoon until a cow that Mr. Martin had
brought was sold. See N.T., Apr. 30, 2013, at 1237. He also acknowledged that he
may have told police previously that Appellant had said to stay until the auction
concluded. See id. at 1293-94.
6
The Commonwealth presented evidence that Appellant was feigning a panic attack to
gain time to collect his thoughts. See N.T., Apr. 26, 2013, at 856.
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Law enforcement officers testified that, in their interviews with Appellant at the
hospital, he repeatedly indicated that an employee was present when he purportedly
had shot at a bird. See N.T., Apr. 24, 2013, at 412, 427, 460. When confronted with
the employee’s denial of this assertion, Appellant merely said “well, I thought he was.”
Id. at 427. An investigating officer testified that Appellant told him that the pistol had
been on the premises for several weeks, see id. at 410, when, in fact, it had been
brought to the premises only a few days before. The officer related that Appellant said
that, after shooting the handgun at a bird, he placed the firearm in a Tupperware
container on a shelf in a storage room and that no one else knew that the weapon had
been left in such location. See id. at 412, 518.
The lead investigator examined Appellant’s finger but did not see any burn. See
id. at 459-60. Appellant gave inconsistent accounts about where he put empty shell
casings after having shot at a bird. Compare id. at 505 (reflecting testimony of one
investigator that Appellant told her that he threw the shells in a dumpster), with N.T.,
Apr. 25, 2013, at 564-567 (reflecting another officer’s attestation that Appellant said that
he threw the shell casings over a steep hillside). Further, evidence was adduced to the
effect that police were unable to locate shells in either place. See N.T., Apr. 29, 2013,
at 1031-1032.
In the ongoing police investigation, no sign of forced entry into the Ferguson
Glass premises was found; moreover, Doris Murphy’s purse, containing several
hundred dollars, remained on a countertop. See N.T., Apr. 23, 2013, at 138, 167, 233.
Investigators discovered the pistol used in the killings in a catch-basin to a belt sander.
See id. at 260.
A forensic DNA supervisor testified that Appellant’s DNA was present on the
handgun. N.T., Apr. 25, 2013, at 681-682. Another analyst confirmed the presence of
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gunshot residue on Appellant’s hand deriving from a test taken soon after the killings.
See N.T., Apr. 26, 2013, at 768.
The Commonwealth also presented testimony of Appellant’s confession, after his
arrest, to a fellow prisoner at Westmoreland County Prison, John Meighan. According
to Meighan, Appellant admitted that he planned and executed the three murders per the
request of Susan McGuire. See id. at 850-855. Meighan testified that Appellant had
also confided to him that Susan McGuire had advised Appellant to fire the handgun
earlier in the day while being observed by an employee. See id. at 853.7
Appellant testified in his own defense, denying any participation in the killings.
On cross-examination, however, he admitted to various omissions and lies in his
statements to police investigators. See, e.g., N.T., May 1, 2013, at 1597-1603, 1610,
1618-1619. He also presented testimony from an emergency medical technician to the
effect that his blood pressure and heart rate were elevated when he was taken to the
hospital, and he was flushed and sweating profusely. See id. at 1378. An inmate from
Westmoreland County prison gave testimony suggesting that Meighan had learned
details concerning Appellant’s circumstances from news media. See id. at 1403-1405.
A firearms examiner attested that it was possible to be burned by the type of handgun
involved in the killings. See id. at 1477. Roy Martin also offered his account of the
events on April 23, 2009, with particular emphasis on an explanation for why he
remained at the auction until it concluded, while denying on cross-examination that
Appellant told him to do so. See N.T., Apr. 30, 2013, at 1168-1173, 1293-1294. Mr.
Martin further indicated that his family had encountered difficulties in the past with Mr.
7
Presumably, the intent was to account for any physical evidence of Appellant’s contact
with the weapon that day. Accord N.T., Apr. 26, 2015, at 854 (reflecting Meighan’s
testimony that the purpose was to use the employee “as an alibi that he was handling
the gun that morning”).
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Modrey. See N.T., Apr. 30, 2013, at 1144. Finally, the defense presented several
character witnesses.
In the first of his three claims centered on the adequacy of the Commonwealth’s
evidence, Appellant contends that the verdicts were against the weight of the evidence.
He indicates that there was very little physical evidence presented by the prosecution,
some of which, from his perspective, was equally consistent with his innocence. See,
e.g., Brief for Appellant at 86 (“While DNA evidence and gun residue analysis indicated
[Appellant] fired, handled, or was in close proximity to the revolver when discharged, it
is hardly surprising for a gun owner to handle his gun.”). In terms of the physical
evidence, Appellant also highlights the presence of DNA from an unknown individual on
the murder weapon.
Appellant suggests that the Commonwealth’s case rested primarily on the
testimony of Charles Modrey and John Meighan. As to Mr. Modrey, Appellant observes
that the witness had not related to police his account of Appellant’s desire to eliminate a
problem until a year after the murders and that the witness was known to have had
difficulties with Appellant and his family. See N.T., Apr. 25, 2013, at 553. Appellant
also describes the content of the conversation related by Mr. Modrey as “innocuous”
and postulates that the witness may have been confused. Brief for Appellant at 88.
Regarding Meighan, Appellant attacks his testimony as “self-serving and
contrived.” Id. at 89. After enumerating Meighan’s crimen falsi convictions, Appellant
pronounces that such witness’s testimony was and is entitled to “no weight.” Id. It is
Appellant’s position that this Court should contrast such evidence “with the heavy
evidence of [Appellant] getting along with and being protective of his family; being highly
emotional at the scene and being given Valium to calm down; and the 911 audio of
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[Appellant] acting hysterically in the background.” Id. In light of this summary, Appellant
asserts that “[t]he great weight of the evidence supports [Appellant’s] non-guilt.” Id.
The Commonwealth responds with emphasis on the prevailing review standard,
which relegates weight-of-the evidence considerations to the finder of fact, in the first
instance, and then to the discretion of the trial court which had the opportunity to hear
and see the evidence presented. See, e.g., Commonwealth v. Widmer, 560 Pa. 308,
319-20, 744 A.2d 745, 753 (2000). The Commonwealth explains that, to grant a new
trial based on weight-of-the-evidence concerns, it must appear that “the evidence was
so one-sided or so weighted in favor of acquittal that a guilty verdict shocks one’s sense
of justice.” In re J.B., ___ Pa. ___, ___, 106 A.3d 76, 95 (2014) (quoting
Commonwealth v. Lyons, 622 Pa. 91, 116, 79 A.3d 1053, 1067 (2013)).
In addressing the trial proofs, the Commonwealth highlights the motive evidence
concerning Appellant’s desire to live with Susan McGuire at his residence and the
victims’ disapproval of the relationship; the conveyance of Appellant’s pistol to the
Ferguson Glass premises in close proximity to the murders for reasons Appellant was
unable to explain consistently; the fact that this weapon then was used to perpetrate the
killings; Appellant’s exclusive knowledge of the location of the firearm prior to the
murders; Mr. Modrey’s testimony that Appellant wished to solicit assistance in
eliminating his problem with his relatives; and Meighan’s depiction of Appellant’s
jailhouse confessions. In the totality, and considered in light of the defense case, the
Commonwealth maintains that there simply is nothing relative to the guilty verdicts that
shocks the conscience.
Upon our review, we agree with the Commonwealth’s position. As previously
explained, disturbance of a jury verdict on weight-of-the-evidence grounds would be
appropriate only in an exceptional case where the evidence weighs very heavily against
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the conviction. Here, however, per the trial court’s review of the record, and ours, we
do not find that the jury lost its way or embarked upon a manifest miscarriage of justice
by convicting Appellant on the three counts of first-degree murder. In terms of
Meighan’s testimony, the jurors were made aware of the witness’s entanglements in the
criminal justice system, including his crimen falsi convictions, see N.T., Apr. 26, 2013, at
879-80, he was subject to extensive cross-examination, see id. at 884-943, and
Appellant’s counsel took pains to cast suspicion upon the testimony in his closing
remarks, see, e.g., N.T., May 3, 2013, at 1720-1721. Furthermore, the jurors were
entitled to treat Appellant’s admitted omissions and lies in his statements to police as
evidence of his consciousness of guilt. See Commonwealth v. Williams, 532 Pa. 265,
275, 615 A.2d 716, 721 (1992). Moreover, the Commonwealth presented a collage of
other evidence supporting a finding of Appellant’s guilt, and, thus, the matter was
properly for the jury. Accordingly, the trial court did not abuse its discretion in denying
relief on Appellant’s weight-of-the-evidence claim.
The remaining challenges to the adequacy of the Commonwealth evidence fall
within the category of evidentiary sufficiency. Again, the establishment of most of the
elements of first-degree murder is manifest and undisputed, and the sole controversy is
over proof of identity. As such, our analysis of evidentiary sufficiency overlaps
materially with the weight-of-the evidence review set forth above. Viewed in its totality,
we find, the Commonwealth presented sufficient evidence to enable a reasonable jury
to find all elements of the crimes of first-degree murder beyond a reasonable doubt.
See Commonwealth v. Reed, 605 Pa. 431, 436, 990 A.2d 1158, 1161 (2010) (setting
forth the prevailing review standard governing sufficiency claims).
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Appellant advances one additional sufficiency argument, grounded upon the
aspirational goal in the capital arena to a heightened standard of reliability in fact-finding
procedures, given the severity of the penalty of death. See Ford v. Wainwright, 477
U.S. 399, 411, 106 S. Ct. 2595, 2602 (1986) (“In capital proceedings >, this Court has
demanded that fact-finding procedures aspire to a heightened standard of
reliability.”). In particular, Appellant contends that, because a majority of the evidence
presented by the Commonwealth at trial was circumstantial, the need for “heightened
reliability” in capital cases precludes the imposition of a death sentence here and
instead necessitates that we vacate and remand for entry of a sentence of life in prison
without parole.
Appellant has not developed his argument adequately for this Court to
contemplate granting the requested relief. Appellant does not deny that the jury applied
the applicable standard of proof, namely proof beyond a reasonable doubt, in both the
guilt and penalty phases of his trial. He likewise cites to no authority preventing or
limiting the use of circumstantial evidence in any phase of capital proceedings, or
otherwise requiring more or greater proof than that required to satisfy the “beyond a
reasonable doubt” standard when circumstantial evidence is presented in any
phase. As such, he provides us with no basis to vacate the judgment of sentence.
II. Suppression
Appellant claims that the suppression court erred in denying his pretrial motion to
exclude from evidence his statements to police made while at the hospital and, later, at
a police station, given that he was under the influence of a powerful medication and
labored under emotional distress. He asserts that he suffered a panic attack after
encountering the bodies of his family members, as evidenced by the fact that an
emergency medical technician found him to be flushed and perspiring profusely and
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recorded his elevated heartbeat and blood pressure readings. Additionally, Appellant
relies on testimony from a psychiatrist, Christine Martone, M.D., that he presented at a
suppression hearing. In this regard, Dr. Martone testified that the effect of Appellant’s
panic attack, coupled with an administration of five milligrams of Valium while being
transported to the hospital, deprived Appellant of the ability, subsequently, to knowingly,
voluntarily, and intelligently make statements or give consent. See N.T., Apr. 30, 2013,
at 13.
Appellant also highlights that law enforcement officers failed to consult with
medical personnel before interviewing him. Further, he points to anecdotal
observations during the interviews that he tended to look down or away, to speak only
when prompted, and to appear emotionless as supportive of the psychiatrist’s opinion.
As an overview, Appellant relates that he:
was in the embarrassing position of wearing a hospital gown,
not having access to his house, and having no transportation
to get home, he was subjected to multiple interviews by
several troopers over a 10-hour period, was confronted with
another’s statement which contradicted his statement in one
respect, and was in the presence of at least one officer
shortly after 9:00 p.m. on April 23, 2009 until he arrived
home after 7:00 a.m. on April 24, 2009.
Brief for Appellant at 85. In the totality, he complains of “coercive conduct and
deliberate ignorance of [Appellant’s] medical condition.” Id.
Appellant’s reliance on Dr. Martone’s opinion at this stage of the proceedings,
however, is in derogation of the applicable standard on appellate review pertaining to
denial of a suppression motion, pursuant to which we consider only so much of the
defense evidence as remains uncontradicted. See, e.g., Commonwealth v. Johnson,
615 Pa. 354, 374, 42 A.3d 1017, 1028 (2012).
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At the suppression hearing, each of several interviewing officers testified to
Appellant’s calmness, cooperativeness, alertness, coherency, and ability to render
extensive oral and written accounts throughout the process. See, e.g., N.T., Aug. 15,
2011, at 46-50. Each of the investigators testified to his or her experience with
individuals under the influence of controlled substances and to his or her observation
that Appellant did not appear to be so affected. See, e.g., id. at 82. They also
confirmed the regularity of the interview processes, including the fact that Appellant was
treated in a professional fashion and not subjected to coercive measures (other than
encountering mere expressions of disbelief relative to a few of his responses). Such
testimony was credited by the suppression court, see Opinion and Order dated Oct. 7,
2012, in Commonwealth v. Murphy, No. 1991 C 2010, slip op. at 16-20 (C.P.
Westmoreland), and presents an adequate basis for denial of a suppression motion
premised on a claim that statements and consents were not knowing, voluntary, and
intelligent. Accord Commonwealth v. O’Bryant, 479 Pa. 534, 540, 388 A.2d 1059, 1062
(1978). Furthermore, the suppression court was not obliged to believe the forensic
psychiatric opinion presented by Appellant.
Based on the above, we conclude that the suppression court did not abuse its
discretion or otherwise err in denying Appellant’s motion to exclude evidence of his
statements.
III. Penalty
In Appellant’s final argument, he asserts that, because the aggravating
circumstances found by the jury in the penalty proceedings overlapped,8 the jury
impermissibly “double-count[ed]” the aggravation. Brief for Appellant at 72.
8
The aggravators in question are set forth in Sections 9711(d)(10) and (11) of the
Sentencing Code. Compare 42 Pa.C.S. §§9711(d)(10) (designating as an aggravating
(continued>)
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As a preliminary observation, we note, however, that “counting” of aggravators is
relevant only for purposes of the initial eligibility process, in which eligibility for the death
penalty is established upon the finding of any single aggravator. See 42 Pa.C.S.
§9711(c)(iv). The remaining assessment, if mitigation also is found, entails a weighing -
- not a counting -- process. See, e.g., Commonwealth v. Reyes, 600 Pa. 45, 53-54, 963
A.2d 436, 441-42 (2009). Notably, the jury at Appellant’s trial was so instructed,
consistent with the governing law. See N.T., May 7, 2013, at 238.
In any event, as the Commonwealth observes, Appellant did not lodge a relevant
objection at trial and, therefore, any residual concerns about this issue must await post-
conviction review. See Pa.R.A.P. 302(a).
IV. Statutory Review
At this stage, we are required to affirm Appellant’s capital judgment of sentence
unless we find it to have been the product of passion, prejudice, or any other arbitrary
factor, or that the Commonwealth’s evidence does not support at least one aggravating
factor. See 42 Pa.C.S. §9711(h)(3). After reviewing the record, we are persuaded that
the sentence imposed upon Appellant was not the product of passion, prejudice, or any
other arbitrary factor, but rather, resulted from the evidence that Appellant deliberately
and maliciously killed the victims, as well as the jurors’ appropriate service of their
function in capital litigation per the governing statutory scheme. Finally, the evidence
plainly established both aggravating circumstances found by the jury, given the multiple
killings involved. See supra note 8.
(>continued)
circumstance conviction of an offense for which a sentence of life imprisonment or
death was imposable), with id. §9711(d)(11) (specifying that conviction of another
murder before or at the time of the offense in issue constitutes an aggravating
circumstance).
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The judgment of sentence is affirmed, and the Prothonotary is directed to
transmit the record to the Governor in accordance with Section 9711(i) of the
Sentencing Code, 42 Pa.C.S. §9711(i).
Justices Baer, Todd, Donohue and Dougherty join the opinion.
Justice Wecht did not participate in the consideration or decision of this case.
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