Com. v. Sanutti-Spencer, M. ( 2018 )

J-A26036-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARIA I. SANUTTI-SPENCER :
:
Appellant : No. 782 MDA 2016
Appeal from the Judgment of Sentence December 18, 2015
In the Court of Common Pleas of Columbia County Criminal Division at
No(s): CP-19-CR-0000754-2014
BEFORE: BOWES, J., OLSON, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED JANUARY 11, 2018
Appellant, Maria I. Sanutti-Spencer, appeals from the judgment of
sentence of life in prison without the possibility of parole followed by an
aggregate of two hundred fifty months (250) to six hundred ninety-six months
(696) of incarceration, imposed December 18, 2015, following a jury trial
resulting in her conviction for criminal homicide, criminal solicitation to commit
homicide, criminal conspiracy, burglary, receiving stolen property, criminal
solicitation to commit burglary, multiple counts of arson, criminal solicitation
to commit arson, criminal attempt to commit homicide, terroristic threats, and
multiple counts of perjury.1 We affirm.
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1 See respectively, 18 Pa.C.S. §§ 2501; 902(a); 903(a)(1); 3502(a)(2);
3925(a); 902(a); 3301(a)(1)(ii); 902(a); 901(a); 2706(a)(1); and 4902(a).
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The relevant facts and procedural history are as follows. Appellant
married Frank Spencer (“the Victim”) in February 1997. Between 2006 and
2012, the Victim reported approximately twenty-five (25) to thirty-five (35)
domestic incidents to the Hemlock Township police department. See Notes
of Testimony (N.T.), 11/12/2015, at 145. Police records confirm that the
Victim reported that Appellant had threatened to kill him on “numerous
occasions.” Id. Following one such occasion, which occurred in October 2006,
the Victim filed for divorce. See id. at 159.
On May 15, 2007, the Victim reported that Appellant threatened that
her Father, Anthony Rocco Franklin (“her Father”), would kill him. Id. at 160.
Contemporaneous with this report, other testimony established that Appellant
sought help from a former coworker, Lee Mix, to secure an early parole for
her Father. N.T., 11/12/2015, at 61-62, 65.2 When Mix and Appellant were
coworkers in 2005, Appellant threatened to harm the Victim. See id. at 61-
64 (Lee Mix testified Appellant threatened to kill the Victim by injecting him
with insulin while he was asleep). Appellant also implied that her Father was
in the Mafia. Id. at 64. Mix informed Appellant that she could not help. Id.
at 65.
In March 2009, her Father submitted a home plan to the parole board,
in which he proposed to live at a residence jointly owned by Appellant and the
Victim (“Fairview Drive Residence”). Id. at 87-88. Parole agent James Curry
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2At the time, Mix was equal employment opportunity director for the parole
board. N.T., 11/12/2015, at 65.
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conducted the pre-parole investigation. Id. at 85-86. When Curry
investigated the proposed home plan, the Victim told Curry that he did not
want her Father living at the Fairview Drive Residence because Appellant and
the Victim were getting a divorce. Id. at 88. Her Father’s proposed home
plan was denied. See id.
In September 2009, her Father’s home plan was resubmitted, proposing
again to live at the jointly owned residence. Appellant indicated to the parole
board investigator that she was divorced and the homeowner. Id. at 98-99,
104. Her Father’s home plan was approved. However, at the time, the divorce
was not final; Appellant and the Victim were subject to an interim divorce
order, giving each party the right to live at the Fairview Drive Residence when
it was their turn to have custody of the kids. N.T., 11/13/2015, at 52.
Between January 2010 and September 2011, police responded to and/or
investigated approximately sixteen incidents specifically involving the Victim
and Appellant at the Fairview Drive Residence. Id. at 52-53. Appellant
threatened to burn down the Victim’s new house and threatened to burn down
the house of the Victim’s girlfriend, Julie Dent. Id. at 57-58; see also N.T.,
11/12/2015, at 167-168 (the Victim’s mother heard Appellant threaten to
burn down the house “50” times and say her Father was in the Mafia and
would have the Victim killed); id. at 105-106 (the Victim’s lawyer knew the
Victim lived in fear based on threats by Appellant to burn down his house and
of being killed by her Father). In January 2010, a fire occurred at the Victim’s
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home. N.T., 11/12/2015, at 107. In August 2010, another fire burned the
house of the Victim’s girlfriend to the ground. See id.
The evidence presented at trial suggested that the Victim lived in
absolute fear of Appellant and her Father. The Victim was very worried that
her Father was capable of killing him and that they were threatening to kill
him. N.T., 11/13/2015, at 146; N.T., 11/10/2015, at 188. The Victim “was
absolutely in fear to the point where he was changing his habits so he wouldn’t
be going to the bank on the same day.” N.T., 11/10/2015, at 187. Appellant
expressed anger and hostility toward the Victim following divorce hearings,
often concerning custody of their children. Id. at 185. According to one
witness, “on numerous occasions, [Appellant] would fly in the driveway and
get out and there would be a screaming match that would ensue.” Id. at 186.
On June 8, 2012, a divorce decree was issued dissolving the marriage
and designating the Victim as homeowner of the Fairview Drive Residence.
N.T., 11/11/2015, at 43. A police officer helped the Victim compose a no-
trespassing letter to Appellant (dated 6/27/2012), telling Appellant to stay off
his property except when exchanging custody of their children in the driveway.
Id. at 44; see also N.T., 11/13/2015, at 61, 63.
On June 30, 2012, news of the divorce appeared in the local paper. On
the evening of June 30, 2012, Appellant called the Victim’s cousin and warned
him that if the Victim’s mother moved into the Fairview Drive Residence,
Appellant would burn it to the ground; Appellant threatened that “that house
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will be her last…. And she can join [the Victim].” N.T., 11/11/2015, at 135.
The Victim’s cousin immediately reported Appellant’s threats to the police. Id.
On July 3, 2012, the Victim’s body was discovered shot dead in the foyer
of the Fairview Drive Residence. N.T., 11/17/2015, 234-236, 237-238. The
evidence established that the Victim was shot from a distance as he was
entering the house and that no one heard from the Victim between July 1-2,
2012. The Victim was killed by two rapidly fatal gunshot wounds: one to the
head and one to the left arm. Id. The parties stipulated that the bullet
recovered from the Victim’s torso was from a .30 caliber class discharged rifle
and the bullet recovered from his head/neck was fired from a .38, .357 caliber,
or nine-millimeter class handgun. N.T., 11/12/2015, at 31. Blood splatter
was found on the interior of the front-door threshold, “indicative of the door
being opened when the bloodletting event occurred.” N.T., 11/11/2015, 23.
Officer Sergeant Brian J. Dropinski found two shell casings near a tree with a
Y shape in front of the house. N.T., 11/12/2015, at 36. Officer Droplinski
testified that the tree offered support for the firing position and was within
firing range of the front door. Id. at 38; see also id. at 59 (noting distance
between perch and house was 115 feet).
Corporal David Andreuzzi found yellow, cleaning gloves at the scene,
one on the kitchen floor and one in the kitchen sink. N.T., 11/11/2015, 26,
29, 39. A forensic expert testified that DNA samples recovered from the
gloves matched the DNA profile of Appellant. Id. at 157-58, 226.
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On July 23, 2014, a grand jury issued an indictment, finding probable
cause to believe that Appellant and her Father engaged in a series of crimes,
culminating in the Victim’s murder. On July 28, 2014, Appellant was arrested
and charged with twenty-six (26) crimes as described above.3 On October
30, 2014, Appellant filed a motion for writ of habeas corpus. Following a
hearing, Appellant’s motion was denied. See Order, 1/5/2015. Appellant also
filed an omnibus pre-trial motion, including a motion to preclude hearsay
testimony. See Def.’s Mot. (filed 3/9/2015). Following a hearing, the
omnibus motion was denied, except the motion to preclude hearsay testimony
was denied without prejudice to Appellant’s ability to file motions in limine six
weeks before jury selection. See Order, 6/22/2015.
In September 2015, the Commonwealth filed a motion to preclude
irrelevant evidence related to Appellant’s health as well as the Victim’s alleged
drug abuse and violent propensities. Upon consideration of Appellant’s
response and following a hearing, the court issued a pre-trial order precluding
Appellant from introducing evidence of the Victim’s alleged drug abuse and
violent propensities. See Order, 11/3/2015. In addition, the court denied
Appellant’s motions in limine.
Following a two-week jury trial, the jury returned a guilty verdict against
Appellant on all twenty-six counts on November 20, 2015. On December 18,
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3 Appellant’s Father fled to Argentina after testifying before the grand jury;
however, in April 2017, he was extradited back to Harrisburg to face criminal
prosecution.
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2015, Appellant was sentenced as described above. Appellant timely filed a
notice of appeal. On February 3, 2016, the court issued a concise statement
order pursuant to Pa.R.A.P. 1925(b). On February 16, 2016, appellate counsel
entered his appearance and contemporaneously sought an extension of time
to file the 1925(b) statement. The trial court granted the extension on
February 24, 2016.
On March 18, 2016, this Court quashed the direct appeal due to
Appellant’s failure to file a docketing statement. See Order, 150 MDA 2016,
dated 3/18/2016; see also Pa.R.A.P. 3517. On May 5, 2016, Appellant’s
appellate rights were reinstated nunc pro tunc. Thereafter, Appellant timely
filed a court-ordered 1925(b) statement. The trial court filed a responsive
opinion, noting that Appellant’s concise statement raised more than forty
allegations of error. See Trial Ct. 1925(a) Op. (TCO), 6/30/2016, 6-7. The
trial court reorganized these to facilitate its review, given the “the volume of
[Appellant’s] complaints and the vague and sometimes repetitive nature [of]
her not so [c]oncise [s]tatement[.]” Id. at 7.
On appeal, Appellant raises the following issues:
1. [Appellant] was precluded from presenting evidence of
another’s motive, of the [Victim]’s abuse, and of her significant
health issues that would have made it physically impossible to
perform the acts required to commit the crime as alleged by
the government. Did these exclusions violate her right to
present a complete defense?
2. By saying to the jury before the witness testified “I don’t think
it necessarily rebuts anything,” did the trial court improperly
invade[] the province of the jury by commenting of the weight
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to give a defense witness’ testimony? Is this especially so when
this witness was called to directly rebut the government’s
theory of motive? Did these inappropriate comments violate
[Appellant]’s right to a fair and impartial trial?
3. A corporal was permitted to testify to his opinion, because of
his experience as a police officer, that he believed that a certain
set of yellow cleaning gloves found in the kitchen of the
[Victim]’s house and later found to have [Appellant’s] DNA in
them were used to move a body from outside to inside the
house. Was he testifying as an expert or is that the type of
knowledge and science so ordinary that “everyone knows it”?
4. After a sequestration order was issued for all witnesses, was it
permissible for the trial court to do absolutely nothing when
two witnesses, who provided a bold, public admission of the
murder made by [Appellant], were caught violating that order
(with one admitting to it) in giving the other a “heads up” as to
what he was going to be “quizzed” about by the defense?
5. Was it error for the trial court to read, as a non-responsive
answer to a jury question, the criminal information as a fact
(not as an allegation) prefaced by “attention-getting words” of
“in order to avoid any confusion about the charges in this case
I am going to read the following to you” and then after the
reading of the criminal information, the words “That is all I have
to say on that issue. Again, I hope it [clarifies] the issues for
you.”?
Appellant’s Br. at 5-7 (suggested answers omitted).
First, Appellant contends that her due process rights were violated when
she was not permitted to present a complete defense due to evidentiary
rulings of the trial court. See Appellant’s Br. at 30-31. Appellant maintains
that the court erred in excluding the following: (A) evidence of Appellant’s
physical ailments to rebut the theory that she was physically capable of
shooting a rifle or dragging the Victim’s 200-pound body; (B) evidence of the
Victim’s domestic abuse to rebut the theory that the Victim was afraid of
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Appellant; (C) evidence of the Victim’s drug use to suggest that others may
have had a motive to kill the Victim; and (D) proffered testimony of two
witnesses to establish that her Father had an independent motive against the
Victim based on the alleged domestic abuse. See id. at 30. In her reply brief,
Appellant concedes that the trial court’s rulings were based upon established
evidentiary rules. See Appellant’s Reply Br. at 1. However, she maintains
that the court applied the rules in a “mechanical” fashion that deprived her of
due process and the right to present a complete defense pursuant to the
guarantees of the Due Process Clause of the Fourteenth Amendment and the
Confrontation Clause of the Sixth Amendment. See id. at 1-2; see also
Appellant's Br. at 34 (relying on Holmes v. South Carolina, 547 U.S. 319,
324-326 (2006)). Appellant maintains that the combination of adverse rulings
cumulatively had an impact on her ability to present a full and complete
defense, and constitutes the denial of a trial in accord with fundamental
standards of due process. Id. at 31-35 (relying on Holmes, 547 U.S. at 324-
25; Montana v. Egelhoff, 518 U.S. 37, 53 (1996); Chambers v.
Mississippi, 410 U.S. 284, 294 (1973)).
Our standard of review is as follows:
The admissibility of evidence is within the sound discretion of
the trial court, and this Court will not reverse a trial court's
decision concerning admissibility of evidence absent an abuse of
the trial court's discretion. An abuse of discretion will not be found
based on a mere error of judgment, but rather exists where the
court has reached a conclusion which overrides or misapplies the
law, or where the judgment exercised is manifestly unreasonable,
or the result of partiality, prejudice, bias or ill-will.
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Commonwealth v. Alicia, 92 A.3d 753, 760 (Pa. 2014) (internal citations
omitted). “A defendant has a fundamental right to present evidence provided
that the evidence is relevant and not subject to exclusion under one of our
established evidentiary rules.” Commonwealth v. McGowan, 635 A.2d 113,
115 (Pa. 1993) (citation omitted). “All relevant evidence is admissible, except
as otherwise provided by law.” Pa.R.E. 402. Relevant evidence “tends to
prove or disprove some material fact, or tends to make a fact at issue more
or less probable.” Commonwealth v. Patterson, 91 A.3d 55, 71 (Pa. 2014)
(citing McGowan, 635 A.2d at 115); see also Pa.R.E. 401 (defining relevant
evidence)). The Supreme Court of the United States recognizes:
[W]ell-established rules of evidence permit trial judges to exclude
evidence if its probative value is outweighed by certain other
factors such as unfair prejudice, confusion of the issues, or
potential to mislead the jury. [T]he Constitution permits judges
to exclude evidence that is repetitive ..., only marginally relevant
or poses an undue risk of harassment, prejudice, [or] confusion
of the issues.
Holmes, 547 U.S. at 326-37 (internal citations and quotation marks omitted).
First, Appellant claims that the court erred in excluding evidence of her
severe diabetes and other health issues. See Appellant's Br. at 35. Appellant
contends that this evidence was relevant for the factfinder to determine that
she was physically incapable of shooting the Victim with a sniper rifle or
dragging his 200-pound body into the house. See id. at 35-38. Appellant
claims that such evidence would have rebutted the Commonwealth’s twelve
witnesses who testified that the Victim was afraid of her.
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In response, the Commonwealth maintains that it “has never argued
that [Appellant] fired the shot from the sniper’s nest or that she drug [sic]
[the Victim’s] body into the house by herself.” See Commonwealth's Br. at
29. The Commonwealth’s theory of the case was that Appellant was engaged
in a conspiracy to commit the murder. “It is well-established … that a
defendant who was not a principal actor in committing the crime, may
nevertheless be liable for the crime if [she] was an accomplice of a principal
actor.” Commonwealth v. Murphy, 884 A.2d 1228, 1234 (Pa. 2004) (citing
18 Pa.C.S. § 306).
Here, the trial court found Appellant’s physical health irrelevant to rebut
the Commonwealth’s theory of the case that Appellant’s Father or another co-
conspirator fired the shot from a sniper’s nest. TCO at 14-15. The court
opined that the “purported evidence was loaded with the potential for unfair
prejudice having the tendency to elicit sympathy for [Appellant].” Id. at 15.
Further, the court found Appellant’s physical ailments “irrelevant to the issues
properly being tried before the jury and likely to unfairly prejudice the
Commonwealth.” Id.
It was within the province of the trial judge to exclude Appellant’s health
issues on the basis of irrelevancy and unfair prejudice. See Holmes, 547
U.S. at 326-37; see also Pa.R.E. 403. We discern no abuse of discretion in
that regard.
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Next, Appellant challenges the preclusion of evidence of the Victim’s
alleged abuse and drug use. As both constitute character evidence, we
address these two claims together. Under the Pennsylvania Rules of Evidence,
character evidence is governed by Rule 404, which provides:
Rule 404. Character Evidence; Crimes or Other Acts
(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person's character or character
trait is not admissible to prove that on a particular occasion the
person acted in accordance with the character or trait.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The
following exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant's
pertinent trait, and if the evidence is admitted, the
prosecutor may offer evidence to rebut it;
(B) subject to limitations imposed by statute a defendant
may offer evidence of an alleged victim's pertinent trait,
and if the evidence is admitted the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant's same trait; and
(C) in a homicide case, the prosecutor may offer evidence
of the alleged victim's trait of peacefulness to rebut evidence
that the victim was the first aggressor.
Pa.R.E. 404 (emphasis added). “[S]pecific instances of a victim's prior
conduct are admissible to show a victim's character trait only if the trait in
question is probative of an element of a crime or a defense.” Commonwealth
v. Minich, 4 A.3d 1063, 1071 (Pa. Super. 2010). Under Rule 404(2)(B),
evidence of “the alleged victim’s pertinent trait” is “limited to a character trait
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of the victim that is relevant to the crime or defense at issue in the case.”
Minich, 4 A.3d at 1072. “[C]riminal defendants asserting self-defense may
introduce evidence of a victim's prior conduct tending to establish the victim's
violent propensities.” Id.; see also Commonwealth v. Miller, 634 A.2d
614, 622 (Pa. Super. 1993) (where self-defense was properly at issue in the
case, then expert testimony regarding “battered woman syndrome” was
relevant to prove the defendant’s state of mind as it relates to an element of
a theory of self-defense).
The trial court found that neither the Victim’s alleged abuse nor his drug
use were relevant to any crime or defense asserted in the case. TCO at 7.
The court determined that the evidence was unfairly prejudicial. See id. The
court notes that Appellant had ample opportunity to effectively cross-examine
witnesses and introduce some of the Victim’s abusive conduct. TCO at 9-10.
As Appellant did not raise self-defense in this case, it was within the
court’s discretion to exclude evidence of the Victim’s bad character traits
because such evidence was not pertinent to any crime or defense being raised.
See Minich, supra. Moreover, the trial court concluded that the Victim’s drug
use “constituted nothing more than speculation.” TCO at 13 (citing
Commonwealth v. Williams, 720 A.2d 678, 686 (Pa. 1998) (noting that it
was proper to exclude evidence that another person had a motive to kill
because the evidence was speculative)). Finally, the trial court found that the
probative value of the evidence did not outweigh the potential for unfair
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prejudice. See Pa.R.E. 404(b)(2). We discern no abuse of the court’s
discretion.
Next, Appellant contends that the court erroneously precluded her from
presenting so-called “dad witnesses” to testify that her Father had an
independent motive to kill the victim based on his knowledge of abuse.
Appellant's Br. at 40, 46. Defense counsel proffered that these witnesses
would have said that her Father had an independent motive to be upset with
the Victim because of the alleged domestic abuse by the Victim against
Appellant. She proposed testimony of a prison guard and inmate regarding
conversations that they had with her Father while he was in prison circa 2007,
2008, and 2009. See N.T., 11/16/2015, at 223. Appellant sought to
introduce this testimony under the coconspirator exception to the rule against
hearsay, see Pa.R.E. 803(25)(E), or alternatively, under the state-of-mind
exception, see Pa.R.E. 803(3). See Appellant's Br. at 44.
The trial court opined that the proffered testimony was “pure hearsay”
and inadmissible. TCO at 16. We agree. “‘Hearsay’ means a statement that
(1) the declarant does not make while testifying at the current trial or hearing;
and (2) a party offers in evidence to prove the truth of the matter asserted in
the statement.” Pa.R.E. 801. “Hearsay is not admissible except as provided
by these rules, by other rules prescribed by the Pennsylvania Supreme Court,
or by statute.” Pa.R.E. 802. The proffered statements are clearly hearsay
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because they were out-of-court statements and were offered to prove that her
Father had an independent motive to kill the victim.
Appellant’s argument is unpersuasive. In order for the coconspirator
exception to apply, “the existence of a conspiracy between the declarant and
the defendant must be demonstrated by a preponderance of the evidence; the
statements must be shown to have been made during the course of the
conspiracy; and they must have been made in furtherance of the common
design.” Commonwealth v. Johnson, 838 A.2d 663, 674 (Pa. 2003)
(citation omitted). Thus, first and foremost, in order for this exception to
apply, Appellant would be required to concede that she participated in a
conspiracy with her Father, and therefore, his statements would be
attributable to her. There was no admission of conspiracy by Appellant.
Accordingly, the coconspirator exception is inapplicable.
Although the defense concedes that the proffered evidence was hearsay,
Appellant maintains that it should have been permitted to afford Appellant her
right to present a defense. See Appellant's Br. at 40-41. At trial, Appellant
also argued that the statements should be admitted under the state of mind
exception, which provides an exception for:
A statement of the declarant's then-existing state of mind (such
as motive, intent or plan) or emotional, sensory, or physical
condition (such as mental feeling, pain, or bodily health), but not
including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the validity or terms
of the declarant's will.
Pa.R.E. 803(3). Appellant’s argument is without merit.
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“An accused has a fundamental right to present evidence so long as the
evidence is relevant and not excluded by an established evidentiary rule.”
Commonwealth v. Ward, 605 A.2d 796, 797 (Pa. 1992) (citation omitted).
Our Rules are clear that hearsay is inadmissible unless a recognized exception
applies. See Pa.R.E. 802. Here, the trial court ruled that these statements
were hearsay and properly deemed inadmissible because they were irrelevant.
See TCO at 16-18.4 We agree.
In her second issue, Appellant seeks a new trial based on the trial
judge’s prejudicial commentary during the testimony of defense witness Dale
Scott Jones. At issue is the following exchange:
Q. Mr. Jones, in the year 2008 and the year 2009, did you have
a romantic relationship with [Appellant]?
A. I believe I had a wonderful relationship in both of those
years, yes.
Q. And how often would you see [Appellant] during the course
of those years within the terms of that romantic relationship?
A. There’s really – occasionally, I was in the Philadelphia area,
[Appellant] was working in that area from time to time at
hospitals, she represented nurses there. So it was occasional
dinners. [Appellant] was very involved with children and so she
was not --
D.A.: Your Honor, if I can interpose an objection and perhaps I
should have asked for an offer of proof. I’m not sure what
relevance this has to the underlying charges.
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4Here, the trial court does not specifically address whether the state of mind
exception applied to a statement of Appellant’s coconspirator.
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Defense: It’s very relevant, Your Honor, because the
Commonwealth has alleged that my client has suggested to
individuals if she can’t have [the Victim], nobody can. This
demonstrates that she’s dating other individuals that would rebut
that idea.
COURT: I don’t think it necessarily rebuts anything.
Defense: I guess that’s for the panel, Your Honor, respectfully.
COURT: Yes, it is for the panel, so I’ll allow the questioning to go
on.
N.T., 11/18/2015, at 107-110 (emphasis added).5
Appellant contends that the judge’s commentary (in bold above)
invaded the province of the jury by suggesting the proper weight to accord to
Mr. Jones’ testimony, thus violating Appellant’s right to a fair and impartial
trial. Appellant's Br. at 50 (relying on U.S. v. Olgin, 745 F.2d 263, 269 (3d
Cir. 1984) (considering the following factors in evaluating whether the court’s
comment required a new trial: “materiality of the comment, its emphatic
overbearing nature, the efficacy of any curative instruction, and the prejudicial
effect of the comment in light of the jury instruction as a whole.”)). Appellant
also complains that the court failed to issue a curative instruction to remedy
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5 According to Appellant, “this evidence would have, at the very least,
weakened the government’s motive and possibly could have destroyed it….
Although the testimony was ultimately allowed, [Appellant argues that it] was
condemned prior to its presentation by this authoritative pre-judgment from
the bench.” Appellant's Br. at 50-51 (citing in support Commonwealth v.
Nicholson, 454 A.2d 581 (Pa. Super. 1982)).
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its prejudicial remark. See id. at 58; Appellant’s Reply Br. at 5. Appellant’s
argument is devoid of merit.
Appellant failed to preserve this issue by making an objection. Further,
Appellant requested no curative instruction. Therefore, we find that the issue
is waived. No relief is due.
Third, Appellant contends that the court erred in overruling her objection
to the Corporal’s testimony regarding the yellow, cleaning gloves recovered
from the scene of the murder. According to Appellant, this testimony
constituted an unqualified, expert opinion and exceeded the scope of
layperson testimony under P.R.E. 701. See Appellant's Br. at 63-69; see also
Pa.R.E. 702. Further, Appellant claims that this admission was not harmless
error. Id. at 68 (citing in support Commonwealth v. Brennan, 696 A.2d
1201, 1203 (Pa. Super. 1997)).
Pa.R.E. 701 allows “testimony by a lay witness in the form of an opinion,
where the opinion is (1) rationally based on the perception of the witness and
(2) helpful to the determination of a fact in issue.” Commonwealth v.
Yedinak, 676 A.2d 1217, 1221 (Pa. Super. 1996). Police officers are
permitted to testify to what they observe during the course of an investigation
and how their observations led to their conclusions. See, e.g.,
Commonwealth v. Berry, --- A.3d ---, 2017 PA Super 282, at *3 (filed Aug.
31, 2017).
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As an initial matter, Appellant mischaracterizes the Corporal’s
testimony. Appellant baldly asserts that the Corporal testified that Appellant
used the cleaning gloves “to drag the decedent’s body into the house.”
Appellant's Br. at 66. Upon close inspection, however, the certified record and
the contents of the trial transcript do not support Appellant’s assertion.
D.A.: Did the fact that the victim had ended up in an unnatural
position and your finding the blood, did that have any connection
in your mind?
Corporal: In my mind it does. When I see that these cleaning
gloves are away from the victim in the kitchen, the thought
obviously, were these gloves worn by anybody? Were they worn
to drag the victim in? Because his body was, from what I am
seeing was removed from the outside, because the initial blood
letting event occurred outside the residence. He is now inside.
Obviously, the bod[y] got inside somehow. So I believe he is
pulled in. So I believe the gloves… [Objection]
Id. at 16-17. Notably, the Corporal did not testify at any point that Appellant
used the yellow, cleaning gloves to drag the body.
Next, the Commonwealth asked the Corporal to explain several
photographs that he took of the crime scene. He described photographs
showing how the Victim was positioned. See N.T., 11/11/2015, at 24. He
observed that the Victim’s arms were up with his legs pointed toward the
garage. Id. He also described areas of pooled blood near the body. Id. at
25. The Corporal described the photographs of the kitchen and stated his lay
opinion that things seemed out of place, with “stuff scattered about,” and “we
can see on the floor, there is a yellow cleaning glove which just doesn’t fit in
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with what I am seeing throughout the residence.” Id. at 26. Specifically, he
described where he found a yellow, cleaning glove on the floor of the kitchen.
Id. at 26. A second yellow glove was found in the sink. Id. at 39.
Substantively, we agree with the trial court that the Corporal’s
testimony, explaining photographs that he took of the body and the gloves,
was rationally based on his perception. See TCO at 42. Combined with
forensic expert testimony confirming Appellant’s DNA on the gloves, the
Corporal’s testimony may have given rise to an inference that Appellant did
drag the Victim’s body into the house. However, the Corporal’s testimony was
based on his experience as a police officer and what he directly observed. The
testimony was helpful for the factfinder to interpret the evidence. This does
not exceed the scope of layperson testimony under Pa.R.E. 701. See Berry,
supra, at *4. Whether or not Appellant dragged the Victim’s body into the
house was a matter relating to weight and credibility properly reserved for the
jury as factfinder. See id. Accordingly, Appellant’s argument is without merit.
We discern no error or abuse of discretion.
Fourth, Appellant contends that two prosecution witnesses, Derk Reed
and Brian Wawroski, violated the court’s sequestration order. Appellant claims
this was a serious violation intended to shape the witness’s testimony. See
Appellant's Br. at 73-74 (citing in support Commonwealth v. Smith, 346
A.2d 757, 760 (Pa. 1975)). Appellant maintains that she is entitled to a new
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trial because the violation influenced the jury and the outcome of the trial.
Id. at 75. We apply the following legal principles.
The selection of a remedy for the violation of a sequestration order
is within the sound discretion of the trial court. In exercising its
discretion, the trial court should consider the seriousness of the
violation, its impact on the testimony of the witness, and its
probable impact on the outcome of the trial. We will disturb the
trial court's exercise of its discretion only if there is no
reasonable ground for the action taken.
Smith, 346 A.2d at 760 (internal citations omitted) (emphasis added); see
also Pa.R.E. 615.
The trial court issued a sequestration order in this case. See N.T.,
11/10/2015 at 27. On the sixth day of trial, the Commonwealth’s witness
Derk Reed testified about a conversation he had with Appellant while standing
in the end zone during a kids’ football game on September 7, 2012. N.T.,
11/17/2015, at 100, 107. Reed testified as follows:
D.A.: Confine yourself to exactly what you said as you recall and
how [Appellant] was responding.
Reed: Well, she was mad. And, as I started pushing harder on
the fires…. [t]hen she started back and she said ‘You know, your
home will burn, too.’ And I am like ‘Are you kidding me?’ Then
she said, you, know, ‘Bo will find you.’ I am looking at her and
the thing she said to me was disturbing, for two parts. I will say
the first part of what she said and I will explain the disturbing part
when we were there. [Appellant] made the comment to me,
nastiest, craziest voice you could ever hear, she looked at me and
said “I am going to tell you right now, the last thing [the Victim]
saw when he was laying on that ground looking up was me.”
…
And I was like in shock…
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Id. at 108-109. On cross-examination, defense counsel questioned Reed
about the noise level at the game, suggesting that Reed misheard Appellant.
Id. at 118-119. Following cross-examination, the court adjourned for a lunch
recess.
Immediately after lunch, the Commonwealth called Brian Wawroski who
testified as follows, in relevant part:
Q. I want to turn your attention to September 7th of 2012. Do
you recall where you were that evening?
A. Yeah, I believe we were talking about the football game, yep.
Q. Where were you, Sir?
A. I was in the end zone where most of the parents and families
that know each other, we gather in the end zone. It is quieter
down there. You don’t have all the band and noise and what
have you up in the stands. And it is a place that we, you know,
talk.
N.T., 11/17/2015, at 130-131 (emphasis added).
On cross-examination, defense counsel asked Wawroski if he met with
Mr. Reed during the lunch recess. Id. at 137. Wawroski admitted that he
walked across the street to Reed’s office and briefly discussed how Reed’s
testimony went, by asking him “how did it go.” Id. Reed told Wawroski that
he was quizzed by the defense on the layout of the field and whether it was
quiet in the end-zone. Id. at 138-139. Upon soliciting this testimony from
Wawroski, defense counsel moved to strike the testimony and for the court to
instruct “on the rules of sequestration that [the witness had] violated.” Id. at
140. The court overruled Appellant’s objection, finding that the subject of the
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testimony was what was said by Appellant at the football field in Wawroski’s
presence. Id.
In its 1925(a) opinion, the trial court acknowledged that Wawroski’s
response on direct “was at least in part informed by what he discussed with
Mr. Reed prior to testifying” and indicated a violation of the court’s
sequestration order had occurred. TCO at 53. However, the court found “the
influence of Mr. Reed did not change [Wawroski’s] testimony in any material
way or prejudice [Appellant].” Id. at 53. Further, the court found any “impact
on the witness’s testimony was limited and it had no impact on the outcome
of the trial.” Id. at 54. The violation of the sequestration order “ultimately
had no material impact [on] the testimony of Mr. Wawroski[], and did not
deprive [Appellant] of a fair trial.” Id. at 55.
Ultimately, the court decided not to take action based on the reasonable
ground that the violation had no material impact on the testimony and no
impact on the outcome of the trial. We agree. Because Appellant has failed
to establish that Wawroski’s testimony influenced the outcome of the trial, no
relief is due. See Stevenson, supra. Accordingly, we decline to disturb the
trial court’s exercise of discretion. Smith, supra.
Fifth, Appellant contends that the court erred in clarifying counts 1, 2,
6, and 14 on the criminal information sheet during jury deliberation.
Appellant's Br. at 76-84; see N.T., 11/20/2015. Appellant contends that the
court’s reinstruction of the jury was improper, that the “judge’s last word is
apt to be the decisive word.” Appellant's Br. at 80 (citation omitted).
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Appellant contends that the court read the criminal information as fact, and
“removed from the jury their right to decide the facts and the verdict.” Id. at
82. Appellant relies on Commonwealth v. Archambault, 290 A.2d 72, 75
(Pa. 1972), which states:
An expression by the judge that in his opinion the accused is guilty
leaves an indelible imprint on the minds of the jury. The jury is
undoubtedly going to attribute to the judge, because of his
experience in criminal cases, special expertise in determining guilt
or innocence…. The influence of the trial judge on the jury is
necessarily and properly of great weight, … and jurors are ever
watchful of the words that fall from him. Particularly in a criminal
trial, the judge's last word is apt to be the decisive word.
Commonwealth v. Archambault, 290 A.2d 72, 75 (Pa. 1972) (internal
citations and quotation marks omitted). Appellant’s reliance is misplaced as
the trial judge never stated an opinion that Appellant was guilty.
Our review of the record reveals that the jury deliberated for over five
hours and was sent home overnight. The following day, the jury sent a
message to the judge seeking written or oral clarification about specific
counts. See N.T., 11/20/2015, at 2. Defense counsel indicated opposition to
re-reading the instruction for conspiracy or accomplice liability, which the jury
did not request. Id. at 5-6. The parties and court agreed to a re-reading of
the charges for the requested counts: first-degree murder, criminal solicitation
to commit murder, criminal solicitation to commit burglary, and terroristic
threats. See id. at 7-11. For each requested count, the court restated each
element that the jury must find to determine guilt. See id.
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Following the re-reading of the four charges, the district attorney asked
to convene with defense counsel at the bench for a sidebar. Id. at 13. The
district attorney stated:
D.A.: Your Honor, under the instruction for criminal homicide that
you gave, clearly it is giving the [j]ury the impression that
[Appellant] has to be present for criminal liability. As charged, we
have charged her as a principal and/or accomplice. I know we
have been down this road in the last day or so discussing this your
honor, but giving the [j]ury half the tool, [sic] it is a charged
element.
COURT: Counsel, here is what I am willing to do and you are
going to set the record on that request, I will read that one
sentence and that is it. And I’m going to note [Appellant’s]
strenuous objection to that.
Id. at 13.
The court then instructed the jury as follows:
COURT: Ladies and gentlemen of the Jury, in order to avoid any
confusion about the charges in this case I am going to read the
following to you:
On or about July 1st 2012, the Defendant did intentionally
cause the death of Frank Spencer at 20 Fairview Drive, Hemlock
Township, Columbia County. The Defendant having acted as a
principal or an accomplice in bringing about [the Victim’s] death
by murder. That is all I have to say on that issue. Again, I hope
it clarif[ies] the issues for you.
Defense Counsel: Your Honor, I would ask, that that is simply the
allegation.
COURT: Excuse me, that is the allegation. Thank you, Counsel.
You are absolutely right. That is only the allegation and as in the
instruction I gave you before, charges are only allegations. They
are not facts in this case unless you find from the evidence the
facts that would support such an allegation to reach your
conclusions. Thank you, Counsel. I appreciate that very much to
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a clarify that for the Jury [sic]. Thank you. Would you pl[e]ase
take the Jury out to convene their deliberations?
N.T., 11/19/2015, at 14. Thereafter, Appellant moved for a mistrial, claiming
that there was allegedly insurmountable prejudice resulting from re-reading
the allegations to the jury when the jury did not ask for that particular
information. Id. at 15-16. The court denied Appellant’s motion, noting that
the jury was given accurate and specific instructions that the charges were
allegations for the jury to decide. Id. at 15-17. Later that morning, the jury
returned a verdict of guilty on all counts.
Here, Appellant argues that the court proceeded to read the allegations
from the criminal information sheet without specifying that they were merely
allegations. Appellant’s Reply Br. at 8. However, upon review of the record,
we note that Appellant requested a curative instruction immediately. In the
section quoted above, the trial court clearly clarified to the jury that it was
reading from the Commonwealth’s allegations.
Appellant suggests that the judge’s words influenced the outcome of the
trial. Appellant's Br. at 83-84. However, as noted by the court, the “record
plainly indicates that the jury was instructed adequately and in accordance
with the law.” TCO at 47. Further, the court reminded the jury that it was
their duty to “find from the evidence the facts that would support such an
allegation to reach [its] conclusions.” See N.T. at 14. Accordingly, we discern
no error. No relief is due.
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Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/2018
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