David Lee Morse v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Malveaux, Athey and Callins
UNPUBLISHED
Argued at Lexington, Virginia
DAVID LEE MORSE
MEMORANDUM OPINION* BY
v. Record No. 0444-22-3 JUDGE MARY BENNETT MALVEAUX
MARCH 7, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRY COUNTY
David V. Williams, Judge
(Elmer Woodard, on brief), for appellant. Appellant submitting on
brief.
Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Jason S.
Miyares, Attorney General, on brief), for appellee.
After a bench trial, the trial court convicted David Lee Morse (“appellant”) of conspiracy to
commit first-degree murder, in violation of Code §§ 18.2-22 and -32, and first-degree murder as an
accessory before the fact, in violation of Code § 18.2-32. On appeal, appellant asserts that the
evidence was insufficient to sustain his convictions. For the following reasons, we affirm.
BACKGROUND
Just before 8:00 a.m. on May 13, 2020, appellant returned home from working a night shift
and found his wife Pamela Morse (“Pamela”) shot to death in bed. The autopsy confirmed that
Pamela died of two gunshot wounds to the head. Forensic analysis by the Virginia Department
of Forensic Science (“DFS”) established that the murder weapon was a Ruger magnum revolver.
Appellant and Pamela married in 2001. In December 2019, appellant began an
extramarital affair with Tanna Fitzgerald. Appellant and Pamela first met Fitzgerald several
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
years before at a local restaurant where Fitzgerald worked. To hide their relationship from
Pamela, appellant and Fitzgerald met secretly at her residence or at an outbuilding on appellant’s
property. Appellant worked in law enforcement for twenty-five years for local sheriffs’
departments but retired sometime before May 2020 and took a night shift job at Hanes Brand in
Patrick County.
Around March 2020, Fitzgerald began demanding that appellant leave Pamela to be with
her. On May 10, 2020, Fitzgerald stated in a text that “we are going to be together soon,” and
appellant replied, “Yes we are.” On May 11, appellant texted Fitzgerald about a deck he was
building at his residence. Fitzgerald replied, “Damn honey our porch is looking wonderful I like
that,” and “That is beautiful be glad when it’s just yours.” Appellant responded, “I LOVE YOU
HONEY, COFFEE ON THE PORCH IN THE MORNING’S [sic].”
Appellant worked the night shift on the night of May 12 and morning of May 13, 2020.
Before he left for work, Pamela asked him to pick up biscuits and gravy from Hardee’s
restaurant when he got off work the next morning. Beginning at 12:54 a.m. on May 13, while
appellant was at work, he and Fitzgerald exchanged the following texts:
Fitzgerald: How many cameras and where are they (12:54)
Appellant: Not a problem, disarmed (1:04)
Appellant: Unplugged (1:04)
Fitzgerald: Is there any way possible that she could have went and
plug[ged] them back in[?] (1:15)
Appellant: No (1:34)
Appellant: If you would rather wait, it’s your call (1:35)
Appellant: We’ll do a diet sundrop, if you had rather wait (1:43)
Fitzgerald: No can’t change it now to[o] late I love you baby
(1:44)
-2-
Appellant: LOVE you Honey (1:44)
Fitzgerald: You[’re] going to be ok baby (1:45)
Appellant: This is a sure thing right (1:51)
Appellant: Just saying, nothing else has worked (1:52)
Fitzgerald: Yes it is baby do you want to or not (1:53)
Appellant: If Ya’ll don’t want to take a chance with it, fix me up
something (1:54)
Fitzgerald: We’re good here (1:54)
Appellant: It’s fine with me Honey, whatever Ya’ll want to do
(1:55)
Fitzgerald: Done deal baby done deal I love you (1:56)
Appellant: Well (3:35)
Fitzgerald: Heading that way now baby I’ll call you as soon as I
pick then [sic] back up in about 45 mins to an hour DAVID, I
LOVE YOU SO MUCH (3:55)
Appellant: They there now (3:58)
Fitzgerald: Not yet almost (3:58)
Fitzgerald: Do you still love me (3:59)
Appellant: LOVE YOU TO [sic] BABY (3:59)
Appellant: LOVE YOU (4:02)
Fitzgerald: We are good honey stop worrying you going to make
yourself sick stop about this stop thinking about it for right now I
got this (4:47)
Appellant: People are waking now. Too late Baby already sick
(4:48)
Fitzgerald: Sorry baby already in progress (5:08)
Fitzgerald: Are you ok baby (5:10)
Fitzgerald: David are you ok (5:13)
-3-
Appellant: Yeah, I’m okay (5:15)
Fitzgerald: Thank goodness I LOVE YOU BABY (5:15)
Fitzgerald: Please don’t hate me (5:15)
Appellant: No Honey, I’m just stressing out (5:16)
Fitzgerald: Me too but we will be so happy (5:16)
Appellant: Why wait until now (5:17)
Fitzgerald: What you mean that was them their time (5:18)
Fitzgerald: I don’t know (5:18)
Fitzgerald: Took them there it’s been an hour I don’t see him you
need to be careful when you go home I’ll text you and let you
know when I see him (5:56)
Appellant: Told you (5:58)
Fitzgerald: Told me what David (5:58)
Fitzgerald: So now you can put all the blame on me that’s why
you told me what don’t start with that David it’s both of us just
wanting just me I told you earlier when you said the word yes or
no that was the word and it won’t no stopping it and I’m in it I
don’t know what happened I didn’t get my phone number she left
she lost her phone in my car he don’t have my number I don’t
know where they’re at but please be careful when you go home
and yeah I’ll take the blame for everything okay it’s all good I
knew it was going to happen (6:04)
Fitzgerald: You want me just to go on now and tell him I done it
get it over with him before you get home so they can lock me up
whatever cuz I’m going to get the blame for it anyway I see that
coming to just you done telling me right (6:05)
Fitzgerald: You just stay at work get off regular time do what you
supposed to do don’t think about nothing don’t say nothing don’t
call nobody don’t do nothing. Just let me do what I got to do
(6:09)
Appellant: Don’t do it Baby, don’t do something stupid like that
please, please (6:10)
-4-
Fitzgerald: You just stay at work get off regular time do what you
supposed to do don’t think about nothing don’t say nothing don’t
call nobody don’t do nothing. Just let me do what I got to do
(6:13)
Fitzgerald: [T]hink about nothing don’t say nothing don’t call
nobody don’t do nothing. Just let me do what I got to do (6:34)
Fitzgerald: I got her phone but can’t get in it (6:40)
Appellant: Ok (6:42)
Fitzgerald: So what do you want me to do (6:44)
Appellant: Just wait I guess, that’s all I know to do. I’m going by
Hardee’s like I planned and then go home (6:46)
Fitzgerald: Im so sorry please I beg you not to hate me. I didn’t
want to lose you but I can’t make you be with me cause I know it’s
all my fault and you will blame me but David I am sorry and I
truly do love you with all my heart (6:57)
Appellant: LOVE you to[o] Honey (6:57)
Fitzgerald: Im so sorry and I will turn myself in and take all the
blame it was all me just remember I LOVE YOU ALWAYS
(6:59)
Fitzgerald: Hey baby haven’t heard from you this morning I just
woke up give me a call when you can I love you (9:48)
At 7:52 a.m., appellant called 911 and reported that he had returned home from work and
found Pamela lying in bed with apparent gunshot wounds. Multiple officers from the Henry
County Sheriff’s Office, including Sheriff Lane Perry, responded to appellant’s residence.
Appellant told the officers that “he thought the point of entry may have been” the rear door by
the partially-constructed deck. Appellant explained that he had unplugged the two security
cameras facing the door by the carport several days earlier to charge Pamela’s motorized
wheelchair. Appellant also had removed the batteries from an additional “game” camera facing
the rear of the property.
-5-
While Investigator Everett Harper was speaking with appellant, appellant received a text
and “turned the phone to his right” so that Harper “wouldn’t see what was going on.”
Investigator Harper then “took possession” of appellant’s cell phone, sealed it in an evidence
envelope, and placed it in the temporary evidence vault at the scene. Appellant provided Harper
with the phone’s password.
Pamela’s daughter Jennifer Helms went to the residence on the morning of May 13 after
being informed of her mother’s death. Helms testified that Pamela had numerous health
problems, including mobility issues, bad shoulders, bad discs in her back, bad knees, a bad ankle,
asthma, and allergies. According to Helms, appellant and Pamela had separate bedrooms, but
Pamela typically slept in the recliner chair. Helms thus found it “odd” that appellant found
Pamela in bed. Appellant told Helms that “they shot” Pamela and that the killer had “busted in”
the back door. Helms did not “know how anyone would be able to get in that door” because
Pamela kept an exercise bike and stacks of books by the door.
Although the Henry County officers preserved the scene, took photographs, and
interviewed appellant, Sheriff Perry asked the Virginia State Police (“VSP”) to take over the
investigation because of appellant’s past employment with the Sheriff’s Office. VSP Special
Agent Billy McCraw arrived at the home at 9:56 a.m. McCraw told appellant that he was not
under arrest, and appellant voluntarily spoke with McCraw. Appellant stated that he last spoke
with Pamela before he left for work the previous night. She told him that she was going to take a
Tylenol and a muscle relaxer and go to sleep and asked him to pick up biscuits and gravy on his
way home in the morning. Appellant called Pamela when he left work in the morning and after
he picked up the biscuits; he stated that the fact she did not answer “was nothing unusual.”
When appellant arrived home, he saw that his red Jeep SUV was missing. He found
Pamela in bed and “knew that something was wrong” “when he saw her head.” Appellant told
-6-
Special Agent McCraw that he had been “seeing” Fitzgerald but that he did not think that she
“had anything to do with this.”
VSP Special Agent William Odell, who knew appellant “fairly well,” drove appellant to
the Martinsville Police Station after appellant agreed to be interviewed there. During the ride,
appellant asked if VSP would “do a search warrant for Facebook and text messages.” When
Odell responded that they would, appellant “hesitated a little bit” and said “good.” Appellant
then “hesitated a few more seconds” and said, “it’s going to cause me a lot of trouble because
after they read those they’ll probably want to charge me with conspiracy or charge me with
something.”
When he arrived at the police station, appellant handwrote a three-page statement.
Appellant stated that he and Fitzgerald “told each other that we loved each other and some day
we would be together.” He further stated that “as time went by [Fitzgerald] started pushing for”
appellant to leave Pamela and “wanted that to happen very quickly.” Appellant “just could not
make that move,” so Fitzgerald “kept telling [him] to make that move or she would make it for
[him].” Fitzgerald threatened several times to “come to [appellant’s] house and tell Pam herself
if [he] couldn’t,” and that Fitzgerald “was going to make this happen one way or the other.”
Appellant did not take Fitzgerald seriously and “ignored the threats.” Appellant stated that
although the “situation continued to get worse,” he was “[s]till not taking [Fitzgerald] seriously.”
On the night of May 13, 2020, Fitzgerald texted him that “she had someone that would take
[care] of the problem.” Appellant “knew at that point that she may be serious” but “didn’t think
she would actually go through [with] it.” Appellant “told her not to, but she said it was too late.”
VSP Special Agents Matthew Wade and Steve Oliver interviewed appellant for more
than three hours after reading him his Miranda1 rights. The interview was audio-recorded, and
1
Miranda v. Arizona, 384 U.S. 436 (1966).
-7-
Special Agent Wade prepared a seventeen-page written summary.2 Appellant told the officers
that he “want[ed] it straightened out,” even though it would “bite [him] in the butt.” He
explained that he had a “decent” relationship with Pamela but had begun a “physical”
relationship with Fitzgerald in December 2019. By the spring of 2020, Fitzgerald began
demanding that appellant leave Pamela for her. Appellant told Fitzgerald that he wanted to leave
Pamela but told the officers that he never intended to do so and that he viewed his relationship
with Fitzgerald as “strictly . . . physical.”
He told the officers that Fitzgerald recently began speaking of “get[ting] rid” of Pamela.
Even though Fitzgerald mentioned getting rid of Pamela ten to fifteen times, appellant stated that
he did not take those statements seriously. He explained that Fitzgerald was “always talking
[about] something, and it [was] hard to take her seriously.” Appellant believed that Fitzgerald
was referring to his divorcing Pamela. When Fitzgerald texted him that she “had someone to
take care of the problem,” and asked if he “want[ed] it done,” he responded, “yeah.” Although
Fitzgerald asked him multiple times whether he “want[ed] this to happen,” he never thought she
“was being serious.”
Appellant stated that Fitzgerald’s friends were “drug people” and that he believed her
associates stole the Jeep. Appellant told the officers both that Fitzgerald might claim that he was
involved in Pamela’s murder but also that Fitzgerald “love[d] [him] enough” to “tell the truth
that [he] knew nothing about this.” Appellant “hop[ed]” that Fitzgerald would “turn[] over
whoever did this.”
VSP Special Agent Rick Conley testified that on the morning of May 13, 2020, he went
to a location in Franklin County after Pamela’s cell phone “pinged” a cell phone tower in that
2
The Commonwealth did not play the audio recording at trial. Special Agent Wade
explained that appellant spoke in a “hushed tone,” and therefore it was difficult to hear his voice
on the recording.
-8-
area. While Conley and another officer searched the area for the missing Jeep, they saw a white
pickup truck with two female occupants. The officers followed the truck to a residence on
Holley Ridge Road. They found Fitzgerald, who was one of the women in the truck, in the yard
with several other people. The officers “recover[ed]” Fitzgerald’s cell phone, and she
voluntarily gave them the password and permission to search the phone.
One of the residents told the officers that “the guy” and “the vehicle” that they were
“looking for” were behind the residence. The officers located Collin Joshua Russell and Casey
Rogers and arrested Russell for an outstanding probation violation. The officers seized multiple
items on or near Russell’s person, including a black revolver and a piece of paper with the
handwritten words “Pamela Morse,” “password,” and “David.” The officers subsequently found
the Jeep in the woods behind the residence. Portions of the Jeep were spray-painted black. The
Jeep was “cluttered” with property, including multiple items that appellant had identified as
missing from the residence. Among these items were a television and a Winchester Magnum
rifle and a box of ammunition. The officers found Pamela’s insurance card in the woods and a
box filled with multiple items belonging to appellant and Pamela in a shed.
Special Agent Wade returned to appellant’s residence on May 14, 2020, and appellant
agreed to speak with him. Appellant said that he was “nervous” and “scared” that Fitzgerald was
going to come to his residence. Special Agent Wade interviewed appellant for more than an
hour; they walked through the residence to allow appellant to further identify missing property.
Special Agent Wade again audio-recorded the interview and prepared a detailed written
summary.
Later that day, Special Agents Wade and Oliver interviewed Fitzgerald at the police
station. After approximately an hour, Fitzgerald stated that she would not provide any more
information until she spoke with appellant. Appellant reluctantly agreed to see Fitzgerald at the
-9-
station; appellant was “worried” that Fitzgerald “was probably going to want to hug him and kiss
him and tell him that she loved him and he didn’t want to do that because he didn’t love her.”
When appellant saw Fitzgerald at the station, he told her to tell the investigators “everything.”
Appellant and Fitzgerald spent approximately fifteen minutes together with the officers; after
appellant left, Fitzgerald spoke to the agents for another hour. Special Agent Wade
video-recorded appellant and Fitzgerald’s interaction and the remainder of Fitzgerald’s interview
on his cell phone, and the Commonwealth played a portion of the video at trial.
On May 15, 2020, VSP officers executed a search warrant at the Holley Ridge residence.
The agents located and seized a Ruger magnum revolver in a box covered with leaves on the
property. A DFS certificate of analysis confirmed that the Ruger was the weapon that killed
Pamela. That same day Special Agent Wade returned to appellant’s residence to check the
electronic lock on the door leading into the home from the carport. Fitzgerald provided Special
Agent Wade with a numerical code for the lock. Special Agent Wade verified that the lock was
operational and that the code Fitzgerald provided opened the lock.
Testifying in his own behalf, appellant stated that he loved Pamela, did not want her to be
murdered, and did not ask Fitzgerald to plan Pamela’s murder. According to appellant, he and
Pamela were both friends with Fitzgerald for years, and Pamela and Fitzgerald “got along great.”
He began a physical relationship with Fitzgerald in December 2019; by February or March 2020,
he became concerned that Fitzgerald “[was] becoming obsessive.” He testified that she began
arriving at his home uninvited and following appellant and Pamela when they left the property.
When appellant tried to “protest” or “distance” himself from Fitzgerald, he claimed that she
became “very angry” and threatened to reveal the affair to Pamela.
Morse stated that during their relationship, he and Fitzgerald secretly met at an
outbuilding on his property. He told Fitzgerald in January 2020 that he had removed the
- 10 -
batteries from the game camera at the rear of the property. Consistent with his statements to law
enforcement officers, appellant testified that he had unplugged the security cameras facing the
house three or four days before the murder to charge Pamela’s wheelchair. Appellant stated that
Fitzgerald had repeatedly offered to come to the residence while appellant was at work to help
Pamela, but he declined. Fitzgerald asked appellant to give her the combination to the electronic
lock in case she needed to help Pamela. Morse responded that she did not need the code because
appellant and Pamela kept the back door unlocked. Appellant testified that he eventually gave
Fitzgerald a code to the electronic lock “[b]ecause she was insistent on it.” Appellant testified
that he had “removed” the code that he gave Fitzgerald and thus believed that she could not use
the code to enter the house. He acknowledged that Special Agent Wade successfully opened the
electronic lock with that code on May 15, 2020.
On cross-examination, appellant stated that the references to “getting rid” of Pamela in
his text conversations with Fitzgerald meant divorce or separation. He also testified that he did
not take seriously Fitzgerald’s statements that she had found someone to “take care” of the
problem because she “made so many threats” that she did not carry out.
The trial court denied appellant’s motions to strike and convicted him on both counts.
This appeal followed.
ANALYSIS
On appeal, Morse challenges the sufficiency of the evidence. “When reviewing the
sufficiency of the evidence, ‘[t]he judgment of the trial court is presumed correct and will not be
disturbed unless it is plainly wrong or without evidence to support it.’” Smith v. Commonwealth,
296 Va. 450, 460 (2018) (alteration in original) (quoting Commonwealth v. Perkins, 295 Va. 323,
327 (2018)). “In such cases, ‘[t]he Court does not ask itself whether it believes that the evidence
at the trial established guilt beyond a reasonable doubt.’” Secret v. Commonwealth, 296 Va. 204,
- 11 -
228 (2018) (alteration in original) (quoting Pijor v. Commonwealth, 294 Va. 502, 512 (2017)).
“Rather, the relevant question is whether ‘any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” Vasquez v. Commonwealth, 291 Va. 232,
248 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 193 (2009)). “If there is
evidentiary support for the conviction, ‘the reviewing court is not permitted to substitute its own
judgment, even if its opinion might differ from the conclusions reached by the finder of fact at
the trial.’” Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018) (quoting Banks v.
Commonwealth, 67 Va. App. 273, 288 (2017)).
“Under well-settled principles of appellate review, we consider the evidence presented at
trial in the light most favorable to the Commonwealth, the prevailing party below.” Vay v.
Commonwealth, 67 Va. App. 236, 242 (2017) (quoting Smallwood v. Commonwealth, 278 Va. 625,
629 (2009)). “This principle requires us to ‘discard the evidence of the accused in conflict with that
of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth
and all fair inferences to be drawn therefrom.’” Id. (quoting Parks v. Commonwealth, 221 Va. 492,
498 (1980)). “In conducting our analysis, we are mindful that ‘determining the credibility of the
witnesses and the weight afforded the testimony of those witnesses are matters left to the trier of
fact, who has the ability to hear and see them as they testify.’” Raspberry v. Commonwealth, 71
Va. App. 19, 29 (2019) (quoting Miller v. Commonwealth, 64 Va. App. 527, 536 (2015)).
Appellant contends that the Commonwealth’s circumstantial evidence did not exclude the
reasonable hypothesis of innocence that Fitzgerald plotted Pamela’s murder with Russell and
Rogers without his involvement or knowledge. We disagree.
“To prove a conspiracy, the Commonwealth must offer evidence of ‘an agreement
between two or more persons by some concerted action to commit an offense.’” James v.
Commonwealth, 53 Va. App. 671, 677-78 (2009) (quoting Wright v. Commonwealth, 224 Va.
- 12 -
502, 506 (1982)). To convict the defendant of conspiracy, as opposed to aiding or abetting, “the
Commonwealth must prove ‘the additional element of preconcert and connivance not necessarily
inherent in the mere joint activity common to aiding and abetting.’” Williams v. Commonwealth,
53 Va. App. 50, 59-60 (2008) (quoting Zuniga v. Commonwealth, 7 Va. App. 523, 527 (1988)).
“[T]he crime of conspiracy is complete when the parties agree to commit an offense; Virginia
does not require proof of an overt act in furtherance of the conspiracy.” Chambliss v.
Commonwealth, 62 Va. App. 459, 466 (2013).
“A conspiratorial agreement often may only be established by circumstantial and indirect
evidence including the overt actions of the parties.” Carr v. Commonwealth, 69 Va. App. 106,
119 (2018) (quoting Johnson v. Commonwealth, 58 Va. App. 625, 636 (2011)). “It is a rare case
where any ‘formal agreement among alleged conspirators’ can be established.” James, 53
Va. App. at 678 (quoting Wilder Enter. v. Allied Artists Pictures Corp., 632 F.2d 1135, 1141 (4th
Cir. 1980)).
“In the case of every felony, every principal in the second degree and every accessory
before the fact may be indicted, tried, convicted and punished in all respects as if a principal in
the first degree . . . .” Code § 18.2-18. To convict a defendant as an accessory before the fact,
the Commonwealth must prove “‘the commission of the crime by the principal, the accessory’s
absence at the commission of the offense, and that before the commission of the crime the
accessory was “in some way . . . [a] contriver, instigator or advisor.”’” Cirios v. Commonwealth,
7 Va. App. 292, 298 (1988) (alterations in original) (quoting McGhee v. Commonwealth, 221 Va.
422, 425-26 (1980)). The Commonwealth must show that the defendant “shared the criminal
intent of the principal.” Id. (quoting McGhee, 221 Va. at 427).
Although the conspiracy is a distinct crime from the substantive murder offense, the same
evidence supports both convictions. “[C]ircumstantial evidence is competent and is entitled to as
- 13 -
much weight as direct evidence provided that the circumstantial evidence is sufficiently
convincing to exclude every reasonable hypothesis except that of guilt.” Kelley v.
Commonwealth, 69 Va. App. 617, 629 (2019) (quoting Pijor, 294 Va. at 512). “When
examining an alternate hypothesis of innocence, the question is not whether ‘some evidence’
supports the hypothesis, but whether a rational factfinder could have found that the incriminating
evidence renders the hypothesis of innocence unreasonable.” Williams v. Commonwealth, 71
Va. App. 462, 485 (2020) (quoting Vasquez, 291 Va. at 250). “The fact finder ‘determines . . .
whether to reject as unreasonable the hypotheses of innocence advanced by a defendant.’”
Young v. Commonwealth, 70 Va. App. 646, 654 (2019) (quoting Commonwealth v. Moseley, 293
Va. 455, 464 (2017)). “Consequently, whether the evidence excludes all reasonable hypotheses
of innocence is a ‘question of fact,’ and like any other factual finding, it is subject to ‘revers[al]
on appeal only if plainly wrong.’” Id. (alteration in original) (quoting Thorne v. Commonwealth,
66 Va. App. 248, 254 (2016)).
Here, in the days before the murder, appellant gave Fitzgerald the code to the electronic
lock and disabled all the security cameras at the residence. These actions both facilitated the
murder and are circumstantial evidence of appellant’s criminal intent and participation in the
conspiracy. Appellant offered innocent explanations for these actions; however, the trier of fact
was not required to credit these self-serving explanations. Indeed, having rejected a defendant’s
attempted explanation as untrue, the fact-finder was entitled to “draw the reasonable inference
that his explanation was made falsely in an effort to conceal his guilt.” Covil v. Commonwealth,
268 Va. 692, 696 (2004). Moreover, appellant’s text exchange with Fitzgerald in the early hours
of May 13, 2020, strongly supports the finding that appellant had knowledge of and participated
in the plot to murder Pamela.
- 14 -
Appellant also posits a hypothesis of innocence regarding the texts, namely that
throughout the exchange, he believed that Fitzgerald was going to his residence not to murder
Pamela, but to expose the affair. But a rational fact-finder viewing the texts in the light most
favorable to the Commonwealth could reject that hypothesis as unreasonable. Fitzgerald opened
the exchange by asking about cameras, and appellant responded that the cameras were “[n]ot a
problem” because he unplugged them. Appellant’s text asking whether “they” were “there now”
also demonstrates his knowledge that people other than Fitzgerald were going to his residence.
These texts do not support appellant’s hypothesis that he believed Fitzgerald was going to his
home to reveal the affair.
Further, at 6:04 a.m., Fitzgerald told appellant that she would “take the blame for
everything,” and at 6:05 she stated that “they can lock me up whatever cuz I’m going to get the
blame for it anyway.” Appellant did not express any surprise or confusion to Fitzgerald’s
references to taking the blame and being “lock[ed] up.” To the contrary, he told her not to
confess to the murder and reaffirmed his love for her. A rational fact-finder viewing the texts
and all the other evidence in the light most favorable to the Commonwealth could reject
appellant’s claim of innocence and conclude that he conspired with Fitzgerald to murder Pamela
and acted as an accessory before the fact to the killing by disabling the cameras and providing
Fitzgerald with the electronic lock code.
CONCLUSION
For the foregoing reasons, we affirm appellant’s convictions.
Affirmed.
- 15 -