Com. v. Selenski, H.

J-S47008-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HUGO M. SELENSKI,
Appellant No. 904 MDA 2015
Appeal from the Judgment of Sentence March 27, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002700-2006
BEFORE: SHOGAN, LAZARUS, and JENKINS, JJ.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 11, 2016
Hugo M. Selenski (“Appellant”) appeals the judgment of sentence
imposed after a jury convicted him of first degree murder, conspiracy,
solicitation, robbery, and theft. We affirm.
A prior panel of this Court summarized the background of this case:
The Commonwealth submitted affidavits of probable cause
to the trial court in conjunction with disposition of pre-trial
motions, which summarized the Commonwealth’s proffered
evidence as to the homicides. The affidavits were executed on
May 19, 2006, by detectives from the Luzerne County District
Attorney's Office, as well as by law enforcement officers from the
Pennsylvania State Police.
According to the affidavits, homicide victim Michael
Kerkowski, Jr., a licensed pharmacist and owner of a pharmacy,
was arrested in April 2001 and subsequently convicted of selling
controlled substances illegally. He failed to appear at his
sentencing hearing on May 14, 2002, and it was presumed that
he had absconded. On May 6, 2002, Gerry Kerkowski, Michael’s
mother, reported that Michael and Tammy Fassett were both
missing. In December 2002, Michael Kerkowski, Sr., reported an
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assault and robbery of his residence. He stated that his son,
Michael, had entrusted $60,000 to him in April 2001, and the
money was placed in an unused vent in the basement. Only he
and Michael knew of the money and its location. During Michael’s
trial for illegal sale of narcotics, he introduced [Appellant] to
Kerkowski, Sr., as his best friend, and advised his father to trust
[Appellant]. Kerkowski, Sr. also related that in July 2002, he met
with [Appellant], who said that he had spoken with Michael
subsequent to May 3, 2002, and that Michael had not fled, but
needed $30,000 to aid in his legal defense. [Appellant] also
indicated that he knew about the $60,000 hidden in the
basement, prompting Kerkowski, Sr. to give [Appellant] the
requested $30,000.
According to Kerkowski, Sr., in June or July 2002, [Paul]
Weakley, using the alias of “Eric,” approached him and asked for
$10,000 in order to repair a computer so he could keep in
contact with Kerkowski, Jr., but Kerkowski, Sr., refused to
tender the money unless he could speak with his son.
Kerkowski, Sr., then contacted [Appellant] who told him not to
give money to “Eric.” In August 2002, [Appellant] again
contacted Kerkowski, Sr., who gave him an additional $30,000.
Kerkowski, Sr., asked if he could speak to Michael, to which
[Appellant] responded he would see what he could do. In
September or October 2002, [Appellant] again met with
Kerkowski, Sr., and asked for more money. Kerkowski, Sr.,
refused to provide any further funds until he could talk to
Michael. At that time, [Appellant] produced a pistol, demanded
money and fired the weapon, whereupon Kerkowski, Sr., gave
[Appellant] $40,000.
Beginning in June 2003, Weakley provided statements to
District Attorney detectives implicating [Appellant] as well as
himself in the homicides of Kerkowski, Jr. and Fassett. Weakley
denied being present at the homicides, but stated that he helped
[Appellant] rebury the bodies on or about May 6, 2002, in the
grounds at 479 Mt. Olivet Road, Kingston Township, which was
in the process of being conveyed to [Appellant] and Tina Strom,
[Appellant’s] girlfriend.
On June 5, 2003, a search warrant was served at the
Mount Olivet property. Weakley accompanied the authorities to
the property and pointed out the burial site.3 As a result,
Kerkowski, Jr.’s and Fassett’s remains were discovered, along
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with flex ties and duct tape. An autopsy report found the cause
of death as strangulation, and the manner of death as homicide.4
3
Weakley had also accompanied the authorities to
the field behind Dallas High School, where the bodies
had first been purportedly buried by [Appellant] and
another person. Weakley could not locate the
purported burial site. Subsequent investigations by
local and federal forensic experts could not locate a
burial site in the field behind the Dallas High school.
4
A person named “Reese” provided information
about a meeting between [Appellant] and Kerkowski
Sr[.], where Kerkowski, Sr., refused to give
[Appellant] money because he did not know if his
son was alive. Another person, named “Samson,”
advised that in April or May 2003, [Appellant] offered
him $20,000 if he would help [Appellant] “dispose”
of a pharmacist who had been arrested for selling
oxyco[n]tin. Earnest Culp, who had rented a trailer
on the Mt. Olivet Road property prior to [Appellant’s]
purchase, told investigators that he encountered
[Appellant] and Weakley on the property near a
freshly dug area, and that [Appellant] said he
wanted to place a gasoline tank in the area.
Investigators further discovered that Weakley had
purchased digging tools from a hardware store on May 4, 2002.
Weakley also purchased a cell phone and was in constant
communication with [Appellant] from May 3, 2002, through May
5, 2002, about 36 total calls. Contrary to Weakley’s statements,
investigators also discovered that Weakley did not work on May
3, 2002.
Commonwealth v. Selenski, 972 A.2d 1182, 1184–1185 (Pa. Super.
2009) (one footnote omitted).
Following a joint county and state criminal investigation into the
deaths of Michael Kerkowski, Jr. and Tammy Fassett, the Commonwealth
charged Appellant on May 19, 2006, with two counts each of homicide,
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conspiracy (homicide), solicitation, robbery, conspiracy (robbery), and one
count of theft. After years of preliminary proceedings, appeals, changes of
counsel and jurists, discovery, and extensions, Appellant proceeded to a jury
trial in January of 2015, which resulted in guilty verdicts on all but two of the
counts.1 Certified Record Docket Entry 423. Following a penalty hearing on
February 17, 2015, the jury returned verdicts of life imprisonment on the
dual first-degree-murder convictions. Certified Record Docket Entry 425.
The trial court sentenced Appellant on March 27, 2015, to consecutive
terms of life imprisonment without possibility of parole, followed by fifty-six
to 120 years of incarceration. Certified Record Docket Entry 545. Appellant
filed a post-sentence motion on April 6, 2015, regarding restitution.
Certified Record Docket Entry 549. The trial court scheduled a hearing for
April 29, 2015, where Appellant’s post-sentence motion was resolved by
stipulation. Certified Record Docket Entry 554. This appeal followed.
Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following questions for our consideration:
I. Whether [Appellant’s] right to counsel of choice, pursuant
to the Sixth Amendment of the United States Constitution
and Article I, Section 9 of the Pennsylvania Constitution,
was violated and a new trial should be granted because
the trial court granted the Commonwealth’s motion to
disqualify [Appellant’s] chosen counsel for a purported
conflict that he waived?
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1
The jury acquitted Appellant of solicitation to commit homicide and
conspiracy to commit robbery. Certified Record Docket Entry 423.
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II. Whether a new trial is warranted because the
Commonwealth failed to disclose material and vital
impeachment evidence regarding Christina Strom, namely
that the Commonwealth had agreed to advocate for her at
her delayed federal sentencing hearing and that a motion
to reduce her sentencing exposure based upon her
cooperation had been filed back in 2007?
III. Whether a new trial is warranted because the trial court
failed to provide after the introduction of alleged co-
conspirator Paul Weakley an appropriate and timely
cautionary instruction that his guilty plea to the homicide
charges and the Goosay charges could not be used as any
evidence against [Appellant]?
IV. Whether the trial court committed reversible error when it
granted the Commonwealth’s motion in limine to introduce
at trial the former preliminary hearing testimony of an
unavailable witness, Ernest Culp, as it violated
[Appellant’s] right to confrontation under both the
Pennsylvania and United States Constitutions?
V. Whether the trial court committed reversible error when it
permitted the Commonwealth’s forensic pathologist to
offer expert testimony regarding alleged blunt force
trauma on the body of Michael Kerkowski that was based
upon hearsay facts supplied by chief prosecution witness
Paul Weakley where such statements are not the type
reasonably relied upon by experts in the same field?
VI. Whether the trial court committed reversible error when it
denied a defense request for a mistrial after key
prosecution witness Christina Strom testified that
[Appellant] went to the police station to “talk about a
robbery” after the Commonwealth was specifically
admonished from [sic] introducing said testimony?
VII. Whether the trial court committed reversible error by
permitting a sitting Common Pleas Court judge to testify
on behalf of the Commonwealth because such testimony
was irrelevant and highly prejudicial as it gave the
appearance of using the prestige of his office to advance
the credibility of and bolster the Commonwealth’s case?
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Appellant’s Brief at 4–5.
Appellant first challenges the trial court order granting the
Commonwealth’s motion to disqualify lead defense counsel Shelley Centini,
Esq. and defense investigator James Sulima. Appellant’s Brief at 19. The
Commonwealth’s motion averred, in relevant part, as follows:
2. The Commonwealth became aware of the matters
which related to the attached criminal charges and referred
same to the Office of the Attorney General due to the conflict
with prosecuting the criminal homicide at bar.
3. Subsequently, the Court was made aware of a
pending grand jury investigation directly related to the instant
case.
4. On January 27, 2014, as a result of that referral and
following the grand jury investigation, the Office of Attorney
General filed criminal charges directly related to the instant
criminal homicide trial against defendant’s counsel, Shelley L.
CENTINI, Esquire, for criminal acts allegedly committed during
her participation in the instant case. A copy of said charges and
supporting affidavit are attached hereto, made a part hereof and
labeled Exhibit “A.”
5. Further, on January 27, 2014, as a result of the referral
by the Office of the District Attorney and following the grand jury
investigation, the Office of Attorney General filed criminal
charges directly related to the instant criminal homicide trial
against defendant’s investigator, James F. SULIMA, for criminal
acts allegedly committed during his participation in the instant
case. A copy of said charges and supporting affidavit are
attached hereto, made a part hereof and labeled Exhibit “B.”
6. Further, on January 27, 2014, as a result of the
referral by the Office of the District Attorney and following the
grand jury investigation, the Office of Attorney General filed
criminal charges directly related to the instant criminal homicide
trial against defendant, Hugo M. SELENSKI, for criminal acts
allegedly committed during the pendency of his homicide case.
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A copy of said charges and supporting affidavit are attached
hereto, made a part hereof and labeled Exhibit “C.”
7. Further, on January 27, 2014, as a result of the
referral by the Office of the District Attorney and following the
grand jury investigation, the Office of Attorney General filed
criminal charges alleging, inter alia, that defendant’s counsel,
Shelley L. CENTINI, Esquire, and investigator, James F. SULIMA,
conspired with double-homicide defendant, Hugo M. SELENSKI,
to commit criminal acts as set forth in the attached affidavits
during the pendency of this homicide case.[2]
8. It is the desire and intent of the Commonwealth to use
the information set forth in the attached affidavits in its case-in-
chief against defendant, Hugo M. SELENSKI, for homicide, as
said information is relevant and directly related to the charges in
the above-captioned matter and further related to evidence of
his consciousness of guilt.
9. Additionally, as a result of the facts set forth in the
affidavits, it is apparent that Attorney CENTINI and Mr. SULIMA
have now made themselves witnesses in the Commonwealth’s
case as to the foregoing.
* * *
11. The Commonwealth respectfully submits that CENTINI
can no longer represent defendant in the instant matter.
12. Similarly, the Commonwealth respectfully submits
that SULIMA should not be permitted to continue as defendant’s
investigator.
____________________________________________
2
As a result of the grand jury investigation, the Attorney General charged
Attorney Centini, Investigator Sulima, and Appellant with intimidation of
witnesses, conspiracy (witness intimidation), theft by deception, conspiracy
(theft by deception), perjury, conspiracy (perjury), solicitation (perjury),
obstructing administration of law, conspiracy (obstruction), tampering with
evidence, and conspiracy (tampering with evidence). Motion of the
Commonwealth to Remove Defense Counsel and Investigator, 1/27/14, at
Exhibits A, B, and C.
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Motion of the Commonwealth to Remove Defense Counsel and Investigator,
1/27/14, at 1–3.
In support of its motion, the Commonwealth submitted the grand
jury’s findings of fact, which, in relevant part, provide as follows:
On January 6, 2012, the Luzerne County Court of Common
Pleas appointed Centini to represent [Appellant] relating to
charges that include criminal homicide and solicitation to commit
criminal homicide. Despite her ethical obligations, the Grand
Jury finds that Centini was actively engaged in unethical and
criminal conduct throughout her representation of [Appellant].
Centini engaged in that conduct for improper purposes, including
suborning perjury, obstructing or impairing the administration of
justice, and intimidating witnesses. Centini met with at least
five witnesses while continually blurring her role as [Appellant’s]
advocate with interests potentially adverse to those of the
witness. Centini met with witnesses and solicited information or
statements from them while they were represented by counsel.
Centini provided witnesses with letters from [Appellant] for the
purpose of intimidation and directed the witnesses to commit
perjury. On at least one occasion, Centini provided a witness
with money and, on another occasion, expressed to a witness
that [Appellant] was angry with the witness for prior statements
to police. The Grand Jury finds that these letters were drafted
by [Appellant] and presented by Centini and Sulima for the
specific purpose of intimidation, soliciting perjury, and
obstructing justice. Centini testified that these incriminating
letters were simply “lost” following this meeting. The Grand Jury
finds that the statements of Centini were not truthful and were
made for the purpose of keeping this body from discovering the
full facts of this matter. It is the finding of this Grand Jury that
the letters were hidden or destroyed to avoid prosecution for the
commission of criminal acts.
* * *
James Sulima was a Pittston police officer until 2007.
Since 2007, Sulima has operated as a private detective and
formed JS investigation and Consulting. The Grand Jury finds
that Sulima aided in the furtherance of a criminal conspiracy
with Centini and [Appellant] to obstruct or impair the
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administration of justice and to intimidate witnesses. Sulima
continued his criminal conduct before the Grand Jury. It is the
finding of this body that Sulima lied under oath.
Motion of the Commonwealth to Remove Defense Counsel and Investigator,
1/27/14, at Exhibits A, B, and C. Following a hearing on February 20,
2014, the trial court granted the Commonwealth’s motion and removed
Attorney Centini and Investigator Sulima. Certified Record Docket Entry
382.
On appeal, Appellant argues that his constitutional right to counsel
was violated by the removal of Attorney Centini, with whom he had
“developed a strong attorney-client relationship” over the course of two
years. Appellant’s Brief at 21. The Commonwealth counters that Appellant
has a right to counsel, but not “to taxpayer-funded counsel of choice[.]”
Commonwealth’s Brief at 5.
It is axiomatic that a criminal defendant has an absolute right to
counsel under the Fifth Amendment of the Constitution of the United States
and Article I, Section 9 of the Pennsylvania Constitution. Commonwealth
v. Moore, 633 A.2d 1119, 1125 (Pa. 1993); Commonwealth v. Tyler, 360
A.2d 617, 619 (Pa. 1975). “While an accused is constitutionally guaranteed
the right to the assistance of counsel that right gives to a defendant only the
right to choose, at his or her own cost, any attorney desired. Where, as
here, an accused is indigent, the right involves counsel, but not free counsel
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of choice.” Commonwealth v. Abu–Jamal, 720 A.2d 79, 109 (Pa. 1998).
(citing Commonwealth v. Segers, 331 A.2d 462, 465 (Pa. 1975)).
Upon review of the appellate briefs, the certified record, and the
applicable law, we conclude that Appellant’s first issue does not entitle him
to relief. Contrary to Appellant’s assertion, the removal of appointed counsel
under the circumstances presented herein did not violate Appellant’s
constitutional right to the assistance of counsel. In support of our
conclusion, we adopt as our own the thorough and well-reasoned analysis of
the trial court. Trial Court Opinion, 9/24/15, at 8–28.
Next, Appellant argues that a new trial is warranted because the
Commonwealth violated Brady v. Maryland, 373 U.S. 83 (1963), by failing
to disclose impeachment evidence regarding Appellant’s former girlfriend
and Commonwealth witness, Tina Strom. Appellant’s Brief at 28. According
to Appellant, the Commonwealth did not disclose that Ms. Strom would
benefit from a downward departure at sentencing in her federal case if she
cooperated with the Commonwealth in Appellant’s case. Id. at 33.
Appellant further complains that the Commonwealth “failed to disclose its
tacit understanding that the Commonwealth would advocate for Ms. Strom
at her federal sentencing hearing.” Id. at 36. In response, the
Commonwealth asserts that “[a]ny benefit Ms. Strom received was as a
result of her cooperation which was known by defense.” Commonwealth’s
Brief at 12.
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In Brady, the United States Supreme Court held that a
defendant’s due process rights are violated when the prosecution
withholds favorable, material evidence from the defense. To
prove a Brady violation, the defendant bears the burden of
demonstrating that: “(1) the prosecutor has suppressed
evidence; (2) the evidence, whether exculpatory or impeaching,
is helpful to the defendant, and (3) the suppression prejudiced
the defendant.” Commonwealth v. Koehler, 614 Pa. 159, 36
A.3d 121, 133 (2012) (citation omitted). Therefore, even if the
first two prongs have been established, a defendant must
establish that he was prejudiced by the failure to disclose. See
Commonwealth v. Appel, 547 Pa. 171, 689 A.2d 891 (1997).
To establish prejudice, the defendant must prove that “there is a
reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different.” Id. (citation omitted).
Commonwealth v. Pugh, 101 A.3d 820, 825 (Pa. Super. 2014), appeal
denied, 117 A.3d 296 (Pa. 2015).
Upon review of the appellate briefs, the certified record, and the
applicable law, we conclude that Appellant’s second issue does not warrant
relief. Contrary to Appellant’s assertion, the record reveals that the
Commonwealth did not commit a Brady violation.3 In support of our
conclusion, we adopt as our own the thorough and well-reasoned analysis of
the trial court. Trial Court Opinion, 9/24/15, at 29–36.
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3
Even if the Commonwealth failed to disclose impeachment evidence, we
observe that Ms. Strom testified about her federal indictment and guilty plea
and defense counsel thoroughly cross-examined her regarding the terms of
her plea agreement and her expectation of a benefit at her federal
sentencing. N.T., 1/21/15, at 713–718, 841–843, 894, 910–912, 920, 932,
944. Therefore, Appellant could not establish “there was a reasonable
probability that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different.” Pugh, 101 A.3d at 825
(citation omitted).
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In his third issue, Appellant challenges the trial court’s failure to give a
cautionary instruction to the jury following the testimony of co-conspirator
and Commonwealth witness Paul Weakley. Appellant’s Brief at 38.
Appellant complains that the jury was “allowed improperly to infer that
because his co-conspirator pled guilty” to a robbery in Monroe County,
Appellant “must also be guilty” of the robbery charges he faced. Id. at 42.
The Commonwealth contends that Appellant failed to preserve this issue for
appeal. Commonwealth’s Brief at 12. According to the Commonwealth,
“defense asked about an instruction, but never objected to the insufficiency
of the same. . . . In fact, the instruction was given immediately following
the testimony of Weakley as requested by defense.” Id. at 15–16.
We reiterate: “Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).
Specifically, a party’s failure to object to a curative instruction as inadequate
waives a challenge to the instruction on appeal. Commonwealth v.
Powell, 956 A.2d 406, 421–422 (Pa. 2008).
Our review of the record confirms that defense counsel discussed an
instruction regarding the jury’s use of Mr. Weakley’s testimony and the trial
court agreed to consider whatever language defense counsel drafted. N.T.,
6/21/15, at 993–995. Defense counsel did not object to Mr. Weakley’s
testimony about his federal and state criminal proceedings or his relationship
with Appellant. Id. at 1008–1012, 1023–1025, 1034–1035, 1042, 1045,
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1048–1051. At a sidebar during Mr. Weakley’s testimony, the trial court and
counsel again discussed the topic of a cautionary instruction concerning the
limited use of Mr. Weakley’s testimony. Id. at 1333–1335. Immediately
after Mr. Weakley’s testimony, the trial court gave the cautionary instruction
specifically advising the jury on the limited use of the co-conspirator’s
testimony. Id. at 1346–1348. Appellant did not challenge the adequacy of
the cautionary instruction or object to the trial court’s jury charge. Id. at
1346–1348, 2813–2881. Thus, we conclude that Appellant has waived this
issue. Pa.R.A.P. 302(a).
Appellant’s fourth issue stems from the trial court’s ruling less than
one month before trial on the Commonwealth’s motion in limine. Appellant’s
Brief at 44. The trial court allowed the Commonwealth to introduce the
2006 preliminary hearing testimony of a deceased witness, Ernest Culp.4
Appellant presents four bases on which admission of the challenged evidence
violated his Sixth Amendment right to confront witnesses: 1) the trial court
“placed undue reliance on an irrelevant past ruling by Judge Muroski in 2007
permitting the introduction of Michael Kerkowski, Sr.’s preliminary hearing
testimony at trial,” id. at 49; 2) “the rules governing a preliminary hearing
in Pennsylvania are grossly inadequate to offer a fair prior opportunity for
cross-examination,” id.; 3) Appellant “had different counsel at trial and at
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4
Mr. Culp died on September 13, 2014. Motion in Limine, 12/11/14, at
Exhibit 2 (Certificate of death for Ernest Culp).
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the preliminary hearing in 2006” which “the Pennsylvania Supreme Court
found . . . to be a significant factor in determining whether a defendant’s
confrontation rights have been satisfied,” id. at 50 (citing Commonwealth
v. Wholaver, 989 A.2d 883, 904 (Pa. 2010)); and 4) Appellant “was not
furnished with Mr. Culp’s criminal history nor any prior statements at the
time of the preliminary hearing,” id.
After responding to each of Appellant’s first three assertions, the
Commonwealth submits, “[T]he trial court correctly applied the standard in
finding that Mr. Culp was unavailable and that [Appellant] had a full and fair
opportunity to cross-examine him at the preliminary hearing.”
Commonwealth’s Brief at 22. As for Appellant’s fourth assertion, the
Commonwealth responds that Mr. Culp did not have a criminal history and
that “all reports relevant to Mr. Culp’s testimony were in possession of
defense at the preliminary hearing. Furthermore, . . . current counsel has
not specified any fact in particular now in his possession, but not given at
the preliminary hearing, that precluded a full and fair cross-examination.”
Id.
“Under both the Pennsylvania and United States Constitutions, a
criminal defendant has a right to confront and cross-examine the witnesses
against him.” Commonwealth v. McCrae, 832 A.2d 1026, 1035 (Pa.
2003); U.S. Const. Amend. VI (“In all criminal prosecutions, the accused
shall enjoy the right ... to be confronted with the witnesses against him[.]”);
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Pa. Const. art. I, § 9 (“In all criminal prosecutions the accused hath a right
... to be confronted with the witnesses against him[.]”). “It is well-
established, however, that the introduction of an unavailable witness’s prior
recorded testimony from a preliminary hearing is admissible at trial and will
not offend the right of confrontation, provided the defendant had counsel
and a full opportunity to cross-examine that witness at the hearing.”
McCrae, 832 A.2d at 1035. A defendant asserting a lack of a full and fair
opportunity for cross examination must establish that he or she was
deprived of “vital impeachment evidence.” Commonwealth v. Cruz–
Centeno, 668 A.2d 536, 543 (Pa. Super. 1995). “Vital impeachment
evidence” includes prior inconsistent statements of the witness or the
witness’ criminal record. Id. at 543.
Having examined Judge Muroski’s analysis of the applicable law5 and
Ernest Culp’s preliminary hearing testimony, the trial court conducted the
following analysis in disposing of the Commonwealth’s motion in limine:
In summary fashion, Mr. Culp indicated at the time of the
preliminary hearing he was 57 years of age and engaged in the
landscaping business. In May of 2002 Mr. Culp resided at Box
485 Mt. Olivet Road, Wyoming, Kingston Township. During early
May, Mr. Culp allegedly observed an individual walking around
479 Mt. Olivet Road—an adjacent property. Mr. Culp was shown
photographs identified as Commonwealth Exhibits 3 through 7
____________________________________________
5
Certified Record Docket Entry 108 (Judge Muroski Order and Opinion,
5/17/07, at 11–17); Certified Record Docket Entry 198 (Judge Muroski Order
and Memorandum, 7/21/10, at 6–11).
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and discussed during the course of his preliminary hearing
testimony.
Mr. Culp stated that he saw [Appellant], who he had been
introduced to a few weeks earlier and another individual, he later
came to know as Paul Weakley. The witness stated that he
observed [Appellant] holding a shovel and further observed the
ground turned over as though someone had been “digging”.
Mr. Culp further recounted alleged statements attributed to
[Appellant]. The first alleged statement occurred on the date
the aforementioned observations were made and the second
approximately four to six weeks later.
As previously indicated, counsel for both [Appellant] and
defendant Weakley conducted cross-examination of Mr. Culp.
Both lawyers posed numerous questions regarding Mr. Culp’s
direct testimony.
We have examined Mr. Culp’s testimony within the
analytical framework set forth in Judge Muroski’s previously
discussed opinions and conclude this testimony is admissible at
trial.
Mr. Culp’s testimony was given under oath and subject to,
in our judgment, meaningful cross-examination. Although some
objections interposed by the Commonwealth were sustained by
the district judge, defense counsel was not significantly limited in
the scope or nature of the cross-examination during Mr. Culp’s
testimony. It is also apparent, based upon this Court’s present
understanding of the Commonwealth’s case, that Mr. Culp’s
testimony is of significant importance. Although this testimony
is important it is certainly not the sole source of incriminating
evidence against [Appellant]. It should also be noted that Mr.
Culp has no history of crimen falsi offenses; pending criminal
charges or any agreement regarding pending criminal charges.
Although not essential to our determination, we are
satisfied that the Commonwealth established through Detective
Capitano’s testimony, that [Appellant’s] then counsel, Attorney
Pike, was in possession of reports of interviews with Mr. Culp
during the preliminary hearing conducted on June 14, 2006.
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We have examined the admitted exhibits, including the
April 27, 2010 report prepared by Detective Capitano, and
discern no vital impeachment evidence as that term is
understood in our jurisprudence.9
9
The term “vital” impeachment evidence is discussed
at page 12 of Judge Muroski’s July 21, 2010 opinion
and we have employed that definition presently.
Trial Court Memorandum, 1/5/15, at 2–4 (footnotes omitted).6
Our review of the record confirms that Appellant was represented by
counsel at the 2006 preliminary hearing and that no essential, critical, and
indispensable information related to Mr. Culp existed. N.T., 6/14/06, at 2.
Thus, we conclude that counsel had a full and fair opportunity to cross-
examine Mr. Culp. Consequently, Appellant is not entitled to relief on this
issue.
Next, Appellant challenges the expert testimony of the
Commonwealth’s forensic pathologist, Dr. Michael Baden, who conducted the
autopsies on the victims. Appellant’s Brief at 53. Appellant argues that Dr.
Baden’s expert medical opinion regarding evidence of blunt force trauma
consistent with the use of a rolling pin on Michael Kerkowski, Jr.’s body was
improperly based on hearsay facts supplied by Mr. Weakley. Id. at 54.
According to Appellant, “[H]earsay statements of cooperating co-
conspirators is not the type of evidence customarily relied upon by forensic
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6
Judge Muroski wrote, “This term connotes essential, critical, and
indispensable information.” Certified Record Docket Entry 198 (Judge
Muroski Order and Memorandum, 7/21/10, at 12).
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pathologists in rendering a medical opinion.” Id. at 55. Additionally,
Appellant argues that Dr. Baden’s testimony caused prejudice in that it
bolstered Mr. Weakley’s testimony. Id.
In response, the Commonwealth relies on Pennsylvania Rule of
Evidence (“Pa.R.E.”) 703. Commonwealth’s Brief at 24. Pa.R.E. 703
provides: “An expert may base an opinion on facts or data in the case that
the expert has been made aware of or personally observed.” According to
the Commonwealth, Dr. Baden personally observed the bruising on Michael
Kerkowski, Jr.’s body, opined to a reasonable degree of medical certainty
that such injuries were caused by blunt force trauma, and indicated that
such trauma was consistent with blows from a rolling pin; therefore, his
testimony was properly admitted. Commonwealth’s Brief at 24.
Upon review of the appellate briefs, the certified record, and the
applicable law, we conclude that Appellant’s fifth issue does not warrant
relief. Contrary to Appellant’s assertion, Dr. Baden’s expert testimony was
not based on hearsay facts but on his personal observations and the record
testimony of Mr. Weakley. Moreover, Dr. Baden testified to a reasonable
degree of medical certainty. In support of our conclusion, we adopt as our
own the thorough and well-reasoned analysis of the trial court. Trial Court
Opinion, 9/24/15, at 45–53.
In his sixth issue, Appellant complains that the trial court erred in
denying his motion for a mistrial. Appellant’s Brief at 56. The genesis for
- 18 -
J-S47008-16
this claim was the Commonwealth’s effort “to elicit testimony from
[Appellant’s] then-girlfriend and key prosecution witness, Christina Strom,
regarding an incident when [Appellant] purportedly went to a police station
in January 2003 to discuss a robbery.” Id. at 56–57. Appellant recounts
that, despite defense objections—which the trial court sustained—and
curative instructions, Ms. Strom testified about the robbery of Michael
Kerkowski, Jr., suggesting that Appellant was involved in it with Mr.
Weakley. Because Appellant was on trial for robbery, he concludes, “[t]he
effect of this entire sequence of testimony was highly prejudicial and denied
[Appellant] of a fair trial. A mistrial was the only recourse.” Id. at 59.
The Commonwealth first responds that Appellant’s statements to Ms.
Strom about a robbery were admissible as voluntary extrajudicial
statements. Commonwealth’s Brief at 25 (citing Commonwealth v.
Simmons, 662 A.2d 621 (Pa. 1995)). Additionally, the Commonwealth
contends that the trial court’s curative instructions—to which defense
counsel did not object—“cured any defect and a mistrial was therefore
unwarranted.” Id. Lastly, the Commonwealth suggests, “in light of the
seven (7) weeks of testimony, it is impossible for the jury to reasonably infer
the meaning of this scrap of testimony.” Id. at 27.
We review the denial of a motion for mistrial according to the following
standards:
In criminal trials, declaration of a mistrial serves to
eliminate the negative effect wrought upon a defendant when
- 19 -
J-S47008-16
prejudicial elements are injected into the case or otherwise
discovered at trial. By nullifying the tainted process of the former
trial and allowing a new trial to convene, declaration of a mistrial
serves not only the defendant’s interest but, equally important,
the public’s interest in fair trials designed to end in just
judgments. Accordingly, the trial court is vested with discretion
to grant a mistrial whenever the alleged prejudicial event may
reasonably be said to deprive the defendant of a fair and
impartial trial. In making its determination, the court must
discern whether misconduct or prejudicial error actually
occurred, and if so, . . . assess the degree of any resulting
prejudice. Our review of the resulting order is constrained to
determining whether the court abused its discretion. Judicial
discretion requires action in conformity with the law on facts and
circumstances before the trial court after hearing and
consideration. Consequently, the court abuses its discretion if, in
resolving the issue for decision, it misapplies the law or exercises
its discretion in a manner lacking reason.
Commonwealth v. Jaynes, 135 A.3d 606, 614–615 (Pa. Super. 2016)
(quoting Commonwealth v. Lettau, 955 A.2d 360, 363 (Pa. Super. 2008)
(citations and quotation marks omitted)). A mistrial “is not necessary where
cautionary instructions are adequate to overcome prejudice.”
Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 2011).
Additionally, it is well settled that the jury is presumed to follow the trial
court’s instructions. Commonwealth v. Travaglia, 28 A.3d 868, 882 (Pa.
2011).
Upon review of the appellate briefs, the certified record, and the
applicable law, we conclude that Appellant’s sixth issue does not warrant
relief. Ms. Strom’s testimony referred to Appellant’s statements. Even if the
jury could infer that Appellant was implicating himself in a robbery, the trial
court advised the jury to disregard the testimony. We presume the jury
- 20 -
J-S47008-16
followed the trial court’s instructions, and Appellant does not otherwise
attempt to offer any evidence establishing that the jury failed to do so in the
instant case. Travaglia, 28 A.3d at 882. In support of our conclusion, we
adopt as our own the thorough and well-reasoned analysis of the trial court.
Trial Court Opinion, 9/24/15, at 53–57.
In Appellant’s final issue, he complains that the trial court erred in
permitting the Honorable Brendan Vanston to testify. Appellant’s Brief at
60. Judge Vanston presided over Michael Kerkowski, Jr.’s drug distribution
trial and subsequent plea proceedings in Wyoming County. Judge Vanston
testified to noticing (1) Appellant was in the courtroom during Michael
Kerkowski, Jr.’s guilty plea, (2) Appellant “glared” at Judge Vanston, which
caused him “some concern,” and (3) Appellant and Michael Kerkowski, Jr.
left the courthouse and behaved in a manner he found “unusual.” Id. at 61.
According to Appellant, Judge Vanston’s testimony served “no legitimate
purpose” other than to “throw the weight of the judge’s position, authority
and weight of his judicial office on the Commonwealth’s side of the scales.”
Id. at 62, 63–64 (citing Commonwealth v. Connelly, 269 A.2d 390 (Pa.
Super. 1970)).
Initially, the Commonwealth criticizes Appellant’s reliance on
Connelly:
Defense submitted two sentences dissected from the [Connelly]
opinion without context. The case actually involves a judge who
presided over [the] defendant’s prior conviction. That judge was
called to the witness stand in [the] defendant’s trial on
- 21 -
J-S47008-16
subsequent charges under the guise of identifying that defendant
as the same person who had entered a plea of guilty before him
to the indictment.
Commonwealth’s Brief at 28 (internal citations omitted). It then defends
Judge Vanston testifying as a fact witness:
He was the only witness who observed the unusual celebratory
behavior of [Appellant] and his victim following the victim having
been found guilty of four or five offenses at trial and then later
pleading guilty to another four or five offenses. He was the only
person in the courtroom besides [Appellant], Mr. Kerkowski,
obviously deceased at the time of the trial at bar and Mr.
Kerkowski’s counsel.
Id. at 29 (internal citations omitted). Lastly, the Commonwealth explains
the connection between the victim’s proceedings before Judge Vanston and
(a) the defense theory that the money Appellant received from Michael
Kerkowski, Sr. “was payment for legal services” and (b) Appellant’s extortion
of money from Michael Kerkowski, Jr.’s parents, “leaving them to believe
that their son had fled after his guilty plea, but before his sentencing in
Wyoming County, and [Appellant] was assisting him.” Id. at 30 (internal
citations omitted).
Generally:
relevant evidence, i.e., evidence that logically tends to establish
a material fact in the case, tends to make a fact at issue more or
less probable, or supports a reasonable inference or presumption
regarding a material fact, is admissible. However, relevant
evidence may be excluded if its probative value is outweighed by
the likelihood of unfair prejudice. Admission of evidence rests
within the sound discretion of the trial court, which must balance
evidentiary value against the potential dangers of unfairly
prejudicing the accused, inflaming the passions of the jury, or
confusing the jury.
- 22 -
J-S47008-16
Commonwealth v. Wilson, ___ A.3d ___, 2016 Pa. Super. 144, at *5 (Pa.
Super. 2016) (quoting Commonwealth v. Jordan, 65 A.3d 318, 324–325
(Pa. 2013) (internal citations, quotation marks, and brackets omitted)). A
trial court’s ruling regarding the admission of evidence will not be disturbed
on appeal unless that ruling reflects manifest unreasonableness or partiality,
prejudice, bias, or ill-will, or such lack of support to be clearly erroneous.
Id. (citation omitted).
Upon review of the appellate briefs, the certified record, and the
applicable law, we conclude that Appellant’s seventh issue does not warrant
relief. We discern no abuse of the trial court’s discretion in permitting Judge
Vanson to testify as a fact witness under the unique circumstances of this
case. In support of our conclusion, we adopt as our own the thorough and
well-reasoned analysis of the trial court. Trial Court Opinion, 9/24/15, at
60–67.
Because Appellant’s issues are waived or lack merit, we conclude that
he is not entitled to relief. Therefore, we affirm the judgment of sentence
for the murders of Michael Kerkowski, Jr. and Tammy Fassett.7
____________________________________________
7
The parties are directed to attach a copy of the trial court’s September 24,
2015 opinion in the event of further proceedings in this matter.
- 23 -
J-S47008-16
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2016
- 24 -
Circulated 07/19/2016 04:03 PM
:'f
COMMONWEAL TH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS
OF LUZERNE COUTNY
v.
-CRIMINAL-LAW
HUGO MARCUS SELENSKI,
Defendant
: NO: 2700 OF 2006
·OPINION
·····--·--····-··-·-·-----------pReeEDl::JR:r\t-HIS!fOR-Y---------·---·--·-·-·----
On August 3, 2012, more than three years prior to the drafting of this
opinion, we stated "To describe the procedural history in the instant matter
as unique and protracted is indeed an understatement." On that date a
memorandum was issued which addressed eighteen issues raised in
defendant's supplemental omnibus motion.1
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A criminal complaint charging the defendant with the murders of C!tP
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Michael J. Kerkowski and Tammy L. Fassett was filed on March 16, 2006. (.f)
A criminal information was subsequently issued on July 2 7, 2006 setting
forth ten offenses including two counts of criminal homicide; one count
1
This memorandum consists of 64 pages. If one wishes to examine a detailed outline of the
procedural history to that point It is set forth In pages 6 through 15 which discuss Pa.R. Crim. P. 600.
Addltlonal procedural history Is extensively set forth by Honorable Chester B. Muroskl in memoranda
Issued on May 17, 2007 and July, 21 2010 disposing of a multitude or pretrial Issues.
1
alleging the defendant conspired to kill Mr. Kerkowski and Ms. Fassett with
Paul Weakley; one count alleging the defendant solicited Rodney Samson to
kill Mr. Kerkowski; two counts of robbery relating to Mr. Kerkowski and
Ms. Fassett; two counts alleging the defendant conspired with Paul Weakley
and did in fact commit the offense of robbery against Mr. Kerkowski and
Ms. Fassett and finally, a single count of theft regarding Mr. Kerkowski.
We also note the information referenced the Crimes Code section providing
_ _ _ _ for_acc.omplic.eJiabilicy.~--------·-- ----------------·-····· · ----·------·-- . ·-··--·-··---- . ·-
These offenses were alleged to have been committed between March,
2002 and May 31, 2002 at 647 Pritchard's Road, Hunlock Township, the
residence of Mr. Kerkowski.
Subsequent to a jury trial commencing on January 21, 2015 and
concluding on February 11, 2015 the defendant was found guilty of all
counts except count five, solicitation of Rodney Samson to commit homicide
and count nine, robbery of Ms. Fassett.
A penalty hearing was convened on February 17, 2015 and the following
day the jury returned verdicts of life imprisonment. (Penalty Phase
Transcript N.T. 343).
2
The definition and llablllty of accomplice Is set forth at 18 P .S.A,§306 (b)(3),(c),(b).
2
Formal sentencing was conducted on March 27, 2015. The trial judge
determined the aforementioned life sentences would run consecutive to and
not concurrent with one another. Additionally, the defendant was sentenced
to an aggregate term of a minimum of 56 years to a maximum of 120 years
consecutive to and not concurrent with the life sentences. During the
sentencing proceeding an issue arose regarding the costs and expenses
sought by the Commonwealth and a hearing was scheduled for and
---···· ----------GonduGted-on-April-2-9-,--l0-1--S-at-which-time--the-Commonwealth--and-defonse----- -------------·
stipulated to an amount of$140,000.00.
A notice of appeal was filed on May 21, 2015 and an order issued
pursuant to Pa.R.A.P. 1925 (b) on May 22, 2015 .. On June 4, 2015 this court
granted appellant's request for an extension of time within which to file a
concise statement. A subsequent request by appellant was granted on June
25, 2015. Appellant's concise statement was thereafter received on July 17,
2015. The Commonwealth's request for an extension of time in which to
respond was granted on August 10, 2015. The Commonwealth's response
was received on August 14, 2015.
Additional procedural history and relevant dates will be· referenced
during discussion of the issues raised.
3
I
. I
I
All appellate law and authority referenced in ow· subsequent analysis is
discussed without specific quotation or further reference to the authority
utilized unless otherwise noted.
ISSUES PRESENTED
The following is a summary of the statement of errors complained of on
appeal, submitted on July 17, 2015. We also note, appended to the concise
statement as exhibit "A" is twenty-one pages of a sixty-three page transcript
·····---·--··---·-----------
---·--······----------
of the sentencing proceeding for Christina M. Strom which occurred on June
5, 2015 before the Honorable Thomas I. Vanask:ie in the United States
District Court for the Middle District of Pennsylvania.
1. The Defendant's right to counsel of choice, pursuant to the
Sixth Amendment of the United States Constitution and Article
I section 9 of the Pennsylvania Constitution, was violated and a
new trial awarded because the trial court granted the
Commonwealth's motion to disqualify Attorney Centini from
her "long-standing representation" of the defendant for a
purported conflict that he waived.
2. The Defendant's right to counsel of choice, pursuant to the
Sixth Amendment of the United States Constitution and Article
4
I, section 9 of the Pennsylvania Constitution, was violated and
the defendant awarded a new trial because the trial court
granted the Commonwealth's motion to disqualify Attorney
Centini when that motion was "baseless and unnecessary" and
its "grounds were concocted" by the Commonwealth to create a
conflict and deprive the defendant of chosen counsel.
3. A new trial should be awarded because the Commonwealth
failed to disclose "material and vital impeachment evidence of a --- ----·-· . -··---··
key witness" Tina Strom pursuant to Brady v. Maryland, 373
U$; 83(1963) and Giglio v. United States, 405 U.S. 150(1972)
and its progeny. Specifically, appellate counsel asserts, the
Commonwealth failed to disclose an agreement to advocate for
Ms. Strom at her federal sentencing hearing and that a motion
to reduce her sentencing exposure. based upon her cooperation
had been filed in 2007.
4. A new trial is warranted because the trial court failed to provide
an appropriate cautionary instruction after the introduction of
alleged co-conspirator Paul Weakley' s testimony that his guilty
plea to both the current homicide and Goosey charges could not
be used as any evidence against Mr. Selenski, The failure to
5
provide this instruction impermissibly infringed upon the
defendant's right to a fair trial under the "United States and
Pennsylvania Constitutions".
5. The trial court committed reversible error when it granted the
Commonwealth's motion in limine to introduce the former
testimony during trial of an unavallable witness, Ernest Culp, as
it violated the defendant's right to confrontation under both the
-------- ----···---·-----
"Pennsylvania and United States Constitutions".
6. The trial court committed reversible error when it permitted the
Commonwealth to elicit testimony regarding a firearm used in
the "Goosay" case. The introduction of the alleged use of the
gun "fell outside of the Superior Court's holding in
Commonwealth v Selenski, 972 A.2d 1182(Pa. Super. 2009)."
7. The trial court committed reversible error when it permitted the
Commonwealth's expert forensic pathologist, Dr. Michael
Baden, to offer testimony regarding alleged blunt force trauma
on the bodyof Michael Kerkowski (allegedly caused by a
rolling pin), where the opinion was made eight years after the
original autopsy and where this opinion originated in his expert
6
report of August 26, 2011, which was not rendered to a
reasonable degree of medical certainty.
8. The trial court committed reversible error when it permitted Dr.
Michael Baden to offer expert testimony regarding alleged
blunt force trauma on the body of Michael Kerkowski that was
I
based upon the hearsay facts supplied by prosecution witness i.
Paul Weakley, where such statements are not the type I
I
-- --·-·"·-----------.-,=------c- .
reasonably relied on by experts fiilli-e-sam-e
fiela:-- - --1
9. The trial court committed reversible error when it denied a
defense request for a mistrial after prosecution witness Tina
Strom testified Hugo Selenski went to the police station in
January 2003 to "talk about a robbery" after the
Commonwealth was specifically admonished from introducing
said testimony.
10.The trial court committed reversible error by failing to provide
a consciousness of innocence instruction where the trial
evidence supported such an instruction,
11. The trial court committed reversible error by permitting a
common pleas judge, the Honorable Brendan J. Vanston, to
7
testify as a Commonwealth witness because such testimony was
irrelevant and highly prejudicial as it gave the appearance of
using the prestige of his office to advance the credibility and
bolster the Commonwealth's case.
12.A new trial should be awarded because the Commonwealth
failed to disclose its "tacit agreement" with a key witness Paul
Weakley, which can reasonable be inferred by his conduct in
·----·-· ··--·-·---------·----- ..,---------- ----- ---···-···-----··--
reversing his refusal to testify at the eleventh hour.
The issues raised will be addressed seriatim and combined where
appropriate based upon conceptual and substantive overlap.
REMOVAL OF DEFENSE COUNSEL
On January 6, 2012 Shelley L. Centini, Esquire was appointed by the
Court of Common Pleas as counsel for Hugo M. Selenski."
3
As can be readily discerned from a review of the previously referenced procedural history outlined
In this court's memorandum of August 3, 2012 (pages 5 through 15), throughout the course of these
proceedings this defendant has been represented by numerous lawyers, all at public expense, and
this case has been presided over by five different Common Pleas Judges. It Is also noteworthy that on
June 29, 2011 the defendant submitted a prose request to represent himself before then presiding
. Judge William Amesbury. On September 1, 2011 Judge Joseph Van Jura conducted a hearing after
which Selenskl's request to proceed prose was granted. Ther~after{ on November 8, 2011 the
,',,
defendant presented a petition prepared by standby counsel David V. Lampman, Esquire to appoint
"substitute counsel",
8
On July 19, 2013, a date of a scheduled pretrial conference in the
instant matter, counsel requested to meet in camera. The transcript of
this meeting reflects the presence of the following: District Attorney
Stefanie Salavantis, Assistant District Attorneys Samuel Sanguledolce
and Jarrett Ferentino, Defense Counsel-E.J. Rymsza, Hugo Selenski,
Detective Daniel Yursha, and Al Flora, Esquire who advised the court he
was appearing as private counsel on behalf of defendant's co-counsel
--··---···--· · -·--Shelley-Gentini,Esquire. -----·· ·--··-··-·· · -· --·· -···-··--·--·-·----···· ·· -··-·-· -··-··
The matter initially discussed was a motion filed by the
Commonwealth seeking reciprocal discovery of material allegedly in the
possession of Attorney Centini.
Attorney Flora acknowledged he was present for a limited purpose,
as private counsel for Attorney Centini. (July 19, 201_3 N.T.8). Attorney
Flora further related " .. .Ihave filed a Motion to Quash the subpoena
relative to Attorney Centini' s appearance before the state wide
investigating grand jury on Tuesday". {Id. N.T.9).
The context of further discussion involved whether the
Commonwealth's discovery request should remain sealed and therefore
not public. The cowi concurred that the request would be sealed.
9
The trial judge next posed a question to first assistant district
attorney Sangudolce regarding his "knowledge as to a grand jury
investigation that has caused us to gather here in chambers". (Id. N.T.
14). The first assistant represented the following:
As a result of information that was brought to the
Commonwealth by the Commonwealth's witness-witnesses in
this case and the observation of a potential conflict with the
prosecution of this case and that information, the District
Attotrney' s Office referred that investigation to the Attorney
. . --- ·-··------Gen·eral~s-Office.. , · --·-·-----·------- ·----·····------- ---·····-···········-·····
· The salient points of that investigation were that the allegation
that Miss Centini; who is Defense counsel's attorney, [sic], passed
letters written by this Defendant, handwritten by this Defendant, to
our witnesses which contained statements designed to intimidate
the witnesses, have them change their testimony or withhold
testimony. And there were further statements made about Miss
Centini's and Mr. Sulima's involvement in that. Once that was
referred to the Attorney General's Office, I had very little contact
until I received a grandjwy subpoena to attend and testify at a l
grand jury proceeding. I
I
I learned within the last few days that Miss Centini had also
been subpoenaed. I have spoken to Mr. Flora, that he had been
retained to represent her with respect to this grand jury
investigation. As a result of that, we drafted the reciprocal
discovery motion being that in addition to whatever the Attorney
General is investigating, I believe the Commonwealth has a right
to review those documents. They're evidence in this case as well.
So, that's what brings us here today, Your Honor.
( Id. N.T. 15, 16).
10
Attorney Sangudolce further represented the Luzerne County
District Attorney's Office initially referred the described investigation to
the Pennsylvania Attorney General "many months ago". (Id. N.T. 16).
Attorney Rymsza acknowledged that co-counsel was "at a
minimum" a potential witness before the grand jury, potentially a witness
against Mr. Selenski and/or potentially a target in the grand jury
_ investigation. Attorney Rymsza expressed an obvious concern, that
·--------, ...... --------- -· ----·-----·------·-··----- ·-------·-----------·-- ·------------· -· --------~-
given Attorney Centini's assumed unavailability "I cannot try this case
alone." (IdN.T. 17, 18).
Attorney Rymsza subsequently inquired whether, although
Attorney Centini may have a conflict, "[I]t is my understanding that at
this juncture, they are not asking for her to be removed from this case".
The first assistant responded "At this point, we don'thave enough
knowledge to know if there is a conflict or not It has been suggested by
co-counsel, and I know the court maybe doesn't want to address this at
this time, to appoint another lawyer in the event that this occurs, but- -"
( Id. N.)'. 22). The trial judge interjected "[A]ny request along those
lines would be premature. (Id.N. T. 22).
11
The pretrial conference was reconvened in the courtroom at which
time the first assistant stated his awareness of a grand jury investigation
being conducted by the Attorney General which "touches this case".
(N.T. 2)
Attorney Rymsza requested a continuance, which was granted.
On January 27, 2014 the Commonwealth filed a "Motion of the
··-··-----Commonwealth_to_RemoYeDefense Counsel and Investig=ato~r_an.;._c.d;.__ ·-· ··---------
Appoint New Counsel and Investigator". A hearing on this motion was
scheduled for and conducted on February 10, 2014. On that date the
defendant was represented by Attorney Rymsza. Attorney Centini was
· not present, however, Attorney Flora who was, stated "I represent
Attorney Centini on this matter". (February 10, 2014 N.T. 4).
The trial judge initially observed that attached and incorporated
into the Commonwealth's motion was a copy of the "criminal charges
filed by the Pennsylvania Attorney General following Grand Jury
investigation against Attorney Shelley Centini; Investigator James
Sulima; and Defendant herein, Hugo Selenski, which the Commonwealth
contends relate directly to this criminal homicide trial for criminalacts
12
allegedly committed during the pendency of this homicide case". (Id.
N.T. 2).
The trial judge further references paragraphs eight and nine of this
motion, in which the Commonwealth represents its intent to use the
information contained in the affidavits in their case in chief, as both '
i
direct evidence and evidence of Mr. Selenski's consciousness of guilt.
Additionally, the trial judge referenced the Commonwealth's assertion
I
-··-······ .... -·--···-------------
that Attorney Centini and Mr. Sulima have now made themselves
witnesses in the Commonwealth's case.
Attorney Rymsza represented Mr. Selenski was opposed to the
disqualification of Attorney Centini. (Id. N.T.3).
Assistant district attorney Ferentino asserted that the facts and
circumstances surrounding exchanges with five identified
Commonwealth witnesses will be relevant to the Commonwealth's case
in chief. Specifically, Attorney Ferentino, referencing the grand jury
affidavit, argued potential Commonwealth witnesses were given letters
. 'by Attorney Centini, allegedly written by the defendant, and then
·'. . -retui:ned to Attorney Centini. The prosecution further argued the charges
filed by the Office of Attorney General on January 27, 2014 created an
13
"inescapable" conflict of interest. Mr. Ferentino further asserted that
Attorney Centini' s position with regard to the conflict should be placed
of record, observing that as a co-defendant of Mr. Selenski Attorney
Centini had a potential conflict of interest that goes to her "unfettered
representation" of Mr. Selenski. (Id.N.T.9).
i
!I
Mr. Ferentino also observed the referenced charges included a ,.
I
count of theft wherein the County of Luzerne was a victim. The alleged
···--··-···------------ -- ·-----···-·-·· -·-· - I
theft related to the payment of significant counsel fees to Attorney
Centini during her representation in the capital prosecution against
Selensk.i.
It should be noted that Attorney Centini did not appear during this
hearing. In response to a question posed by the trial judge regarding
whether Attorney Flora was present as private counsel to Attorney
Centini, Mr. Flora responded "That is correct, Your Honor''. (Id. N .T.
12).
Attorney Flora argued the court should deny the disqualification
motion since the Commonwealth failed to meet its burden. In this regard
Attorney Flora suggested "The presentment, really all that is, is a lot of
conclusions. But what you don't have before you is the specific evidence
14
that they are looking to utilize and why they believe that Attorney Centini
would be a necessary witness. And by a necessary witness, that no one
else, no one else other than her cari provide that information. That's
what they haven't given you". (Id. N.T. 15).
Attorney Flora further argued that the defendant had a right to
i
waive a potential conflict (Id.N.T. 16, 20).
!
t
___The trial judge thereafter stated ''The_~a! o~ this court is to ensure
fairness, a fair trial for all; for the defendant and for the Commonwealth".
The court further noted reviewing and incorporating the affidavits
attached to the previously referenced charges. The trial judge
additionally observed that Attorney Centini is "certainly cloaked with the
... , ·I:
presumption of innocence", however, based upon the Commonwealth's
representations, Attorney Centini would be called as a witness during its
case in chief while at the same time serving as an advocate for a
defendant in a capital case. The court further observed that defense
counsel's alleged criminal acts related to her alleged conduct during her
representation. The record reflects the conclusion that "Commonwealth
witnesses called in this homicide case will likely inform the jury of
counsel's alleged actions which C.Qµ14 compromise legal representation
and jeopardize a fair trial to Mr. Selenski in this homicide case. In that
15
event, the defendant could be denied conflict-free representation." (Id.
N.T. 22). The trial judge determined the referenced scenario created a
"serious conflict of interest".
Thereafter, the court inquired of the defense whether Mr. Selenski
would seek to waive a conflict. The Commonwealth argued the conflict
I
I
was "inescapable" and of such magnitude it could not be waived. i
(Id.N.T. 24). I
i
e,·-------·---- I
j
The defendant indicated a willingness to waive the conflict and the
court thereafter conducted a colloquy in this regard. (Id.N.T. 25 through
31).
At the conclusion of the purported waiver the trial judge stated
" ... I am very concerned for the sanctity, of the proceedings, and I want to
protect the rights of all parties involved. I refuse to accept the waiver of
conflict. Attorney Centini will be removed from this case. The court
acknowledges that [Attorney Centini is] preswned innocent of the
charges which have been filed against [her]." (Id. N.T. 31).
I
Parenthetically, we note Bernard J. Brown, Esquire was appointed
to represent Mr. Selenski on April 17r2014.
I
I
16
I
I
l
j
I
i
Appellate counsel presently argues that the court erred in granting
the Commonwealth's motion to disqualify Attorney Centini in violation
of the defendant's right to "chosen counsel" for what is described as a
"purported conflict'' that the defendant "waived".
It is further asserted the Commonwealth's disqualification was
"baseless and unnecessary and its grounds were concocted by the
Comnionwealth to create a conflict and deprive Mr. Selenski ofhis
-··-···-·-----------------------------------------······-·····---·-
counsel of choice".
In response the Commonwealth acknowledges that although a
criminal defendant has an absolute right to counsel, he does not have an
. absolute right to counsel of his choice. The Commonwealth further
observes that counsel in the instant matter was appointed utilizing public
funds and an indigent defendant possesses no constitutional right to
counsel of his choice.4
The Commonwealth also asserts, during the relevant time period,
Attorney Centini was indicted for conspiring with Mr. Selenski to
4
The Constitutional right to counsel Is not absolute. Commonwealth y. Kelly. 5 A.3d 370 (Pa. Super.
2010). This opinion contains an excellent discussion outlining the parameters of the right to counsel iI
generally and those of court appointed counsel at public expense. The trial court there determined
that a criminal defendant unwilling to cooperate vJith three counsel, all of whom were assigned at
public expense, forfeited his right to counsel.
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17
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intimidate witnesses in the form of paying one rent, as well as "engaging
in acts to influence other witnesses to alter their prior statements to
police".
The criminal complaints filed on January 27, 2014 by the Attorney
General, as a result of an investigation conducted by the Thirty-Sixth
Statewide Investigating Grand Jury, charged Attorney Centini, Mr. Sulima
and Hugo Selenski with identical offenses. The affidavit summarizing the
results of the investigation consists of thirteen pages.' To obtain a full
understanding of the alleged conduct resulting in Attorney Centini' s
disqualification in the instant matter we commend any reader of this opinion
to review the entire thirteen page affidavit. A succinct summary of the
allegations is set forth on pages three and four:
On January 6, 2012, the Luzerne County Court of Common
Pleas appointed Centini to represent Selenski relating to charges
that include criminal homicide and solicitation to commit criminal
homicide. Despite her ethical obligations, the Grand Jury finds
that Centini was actively engaged in unethical and criminal
5
Attorney Centini was charged with two counts oflntimidatlon of witnesses; conspiring With Hugo
Selenskl to intimidate witnesses; theft In excess of fifty thousand dollars for legal services performed
during her representation of the defendant In the Instant prosecution; conspiring with Hugo Selenski
and James Sulima to commit theft ; conspiring with Hugo Selenskl and James Sulima to commit
perjury; sollcitatlon of five prospective Commonwealth witnesses to commit perjury In the trial which
Is the subject of this appeal; obstruction; conspiring with Hugo Selenskl and James Sulima to commit
obstruction; tampering with or fabricating physical evidence by destroying the letter which was the
subject of the grand Jury Investigation and conspiring with Hugo ~l~nskl and James Sulima In the
destruction of the aforementioned letter.
18
. .
conduct throughout her representation of Selenski. Centini
engaged in that conduct for improper purposes, including
suborning perjury, obstructing or impairing the administration of
justice, and intimidating witnesses. Centini met with at least five
witnesses while continually blurring her role as Selsenski's
advocate with interests potentially adverse to those of the witness.
Centini met with witnesses and solicited information or statements
from them while they were represented by counsel. Centini
provided witnesses with letters from Selenski for the purpose of
intimidation and directed the witnesses to commit perjury. On at
least one occasion, Centini provided a witness with money and, on _
another occasion, expressed to a witness that Selenski was angry
with the witness for prior statements to police. Toe Grand Jury
finds that these letters were drafted by Selenski and presented by
. .... ···-----ee-nt'Jni·-and-Sulima-for-the-specificpurpose-of intimidation;--·-·-·-------·- -·-----··-··-·
soliciting perjury, and obstructing justice. Centini testified that
these incriminating letters were simply "lost" following this
meeting. The Grand Jury finds that the statements of Centini were
not truthful and were made for the purpose of keeping this body
from discovering the full facts of this matter. It is the finding of
this Grand Jury that the letters were hidden or destroyed to avoid
prosecution for the commission of criminal acts.
Centini' s criminal conduct indicates that Centini' s model of
legal practice is synonymous with unethical and criminal conduct.
Attorney Centini' s actions indicate an absolute disregard for the
rule oflaw and reflect a win-at-any-cost mentality unbecoming an
officer of the court. In this manner, Centini' s philosophy is
consistent with the conduct and beliefs of her client, Selenski.
Selenski possesses absolute contempt for the rule of law and seeks
to escape justice. Selenski and Centini worked in concert to see
the prosecution of Selenski undermined through whatever means
necessary, including: conspiring to impede justice; intimidation of
witnesses; solicitation of perjury; and obstruction or perversion of
the administration of justice. Centini and Selenski' s disdain for the
administration of justice continued as they perjured themselves
before the Grand Jury.
This Grand Jury rejects any assertion by Centini and her co-
conspirator that this blatantly criminal and unethical conduct is
justifiable as zealous defense work. The litigation of criminal
matters occurs under the rule of law and within the rules which
19
govern any attorney's professional conduct Any assertion that
Centini' s criminal conduct was merely the practice of law is
rebutted by evidence that she abdicated her oath and became a co-
conspirator in undermining the very laws she swore to uphold.
In considering the disqualification motion, and in preparation of
this opinion, we have reviewed a law review article authored by
Professor Ann Bowen Polin entitled "Conflicts of Interest in Criminal
Cases: Should the Prosecution Have a Duty to Disclose T", 4 7 Am.
Crim.L.Rev. 1185 (Summer 2010). This extensively footnoted ninety-
eight page discourse examines the issue of conflicts of interest arising
from representation of defendants in criminal cases. A myriad of issues
in this context are explored, however, we found particularly salient
sections V entitled "Defense Counsel Facing or Under Investigation for
Criminal Charges" and VI entitled "Raising the Conflict: The
Prosecutor's Duty".
We find the following insights, rationale, sentiments and
observations particularly poignant. They are summarized and set forth
without specific quotation or reference other than already indicated.
Professor Bowen Polin suggests the existence of a serious conflict
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when defense counsel is fighting for her own interest against the hostile
!
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force of the criminal justice system, while, at the same time, representing
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a defendant. An attorney accused of criminal conduct risks livelihood,
reputation and potentially liberty.
If counsel is accused of criminal conduct by prosecution witnesses
but is actually innocent, counsel may not be able to effectively closely
examine the issue on cross-examination since counsel is placed in the
role of witness for herself as well as advocate for the defendant.
The article recognizes when counsel is actually accused of criminal
---- --activity-closely.related.to.the.defendant's alleged illegal.conduct, a . . . . . - -------· .
particularly intense conflict arises and the resultant harm to the defendant
·i_s likely to be so severe that counsel should not be permitted to represent
· the defendant. Indeed, if counsel is suspected of the same criminal
conduct with which the defendant is charged, the impact on counsel's
performance is likely to be pervasive and profound, given counsel's
strong self-interest in avoiding criminal liability.
The following observation is particularly apropos to the matter sub
judice:
In some instances, counsel's alleged wrong doing comes to light
when the prosecution interviews its witnesses in preparation for the
defendant's trial, and the witnesses inculpate counsel as well as the
defendant. If a witness' likely testimony will inform the jury in the
defendant's trial of counsel's illegal conduct, counsel's role in the case is
compromised. That disclosure will prejudice the jury against counsel
and, possibly, the defendant, thus undermining the fairness of the
proceeding. The public's interest in the actual and apparent integrity of
21
the proceeding as well as the defendant's right to conflict-free
representation come into play. In such a case, the court should be
reluctant to permit counsel to continue in the case.
(footnotes omitted).
The article strenuously suggests that early intervention in these
types of cases is not only often feasible but will serve to best protect the
defendant and the fairness of the process. If the prosecution discloses the
existence of the investigation and requests the court to remove
defendant's counsel from the case a trial court need not be concerned
about the implications of public disclosure and may explore the nature
and implications of the alleged conduct. Professor Boweri Polin suggests
if an investigation is ongoing but not yet public disclosing that defense
counsel is a target may compromise the investigation or potentially
endanger witnesses. In this context the prosecution may protect the
defendant as well as the government's interest by communicating with
the trial court ex parte. 6
In discussing raising a conflict of interest in the first instance the
article indicates the primary burden rests on defense counsel to identify
and address potential conflicts of interest, referencing authority contained
6
A variation of which was pursued by the Attorney GeneraI during these proceed lngs, (See: July 19,
2013 N.T. 20).
22
in footnote 216. This authority includes the model rules of professional
conduct, Rule 1. 7.
In reviewing this article we have considered and been informed by
three opinions issued by the United States Court of Appeals for the
Eleventh, Third and Second Circuits.
InUnited States v. Hobson, 672 F .2d 825 ( 11th. Cir.1982) the
court considered affidavits outlining testimony of two government
- -- - ---witnesses-which-portrayed-the ·defendant's1tttomey ashaving engagea·1n-··-- . ---- -· · ·
thoroughly improper and unethical conduct which, the court noted,
would impugn severely the attorneys integrity and credibility in the eyes
of the jury. Although the defendant indicated a willingness to waive any
ethical issues in order to have the benefit of continued representation the
Eleventh Circuit concluded "The defendant is not free to waive the
problem presented here, however, because the ethical violation involves
public perception of the lawyer and the legal system rather than some
difficulty in the attorneys effective representation of [the defendant]. Id.
F.2d.at 829. The Eleventh Circuit thereafter affirmed the order of the
district court disqualifying the defendant's attorney.
In Government of Virgin Islands v. Zepp, 748 F .2d 125 (3rd
Cir.1984) the Third Circuit considered the Sixth Amendment guarantee
23
of the right to counsel's undivided loyalty. The appellant there
contended that she was denied effective assistance of counsel because
trial counsel had an actual conflict of interest due to his potential criminal
liability for the same charges on which appellant was tried and the fact
that he was a witness for the prosecution. In reversing Zepp' s conviction
the Third Circuit concluded that an actual conflict of interest existed
which required withdrawal by trial counsel or disqualification by the
- --~Qurt.__ - ..... -- ...
In arriving at this determination the opinion reviews decisional law
holding that prejudice is presumed when counsel is burdened by an actual
conflict of interest. In rejecting the governments position that no actual
conflict existed because Zepp's trial attorney was never the subject of
formal charges and faced no potential liability the opinion explains that
trial counsel's interest and the defendant's interest diverged with respect
to a material factual or legal issue or to a course of action in two respects.
First, trial counsel could have been indicted for the same charges in
which he represented the defendant and second, trial counsel was a
witness for the prosecution. With regard to potential criminal liability of
defense counsel the opinion instructs that when defense counsel has
independent personal information regarding the facts underlying his
24
client's charges and faces potential liability for those charges, he or she
has an actual conflict of interest. Id. F.2d at 136.
Finally, in United States v. Fulton, 5 F.3d 605 (2nd Cir. 1993) the
Second Circuit explained and concluded that an actual conflict of interest
exists when a defense attorney engages in wrongful conduct related to the
charge for which his or her client is on trial. The court there considered
allegations by a government witness that defense counsel had engaged in
· ----heroin-trafficking-which-related-to-the-charge-for-whtclrthe defenrum:t---··--·-·--···
was on trial. This, the opinion instructs, creates an actual conflict of
interest and counsel's continued representation of a defendant in this
context results in a per se violation of the Sixth Amendment.
Judge Walker, author of the opinion, further explains that while a
defendant may generally waive his Sixth Amendment right to an
unconflicted attorney, the essential aim of the Sixth Amendment is to
guarantee an effective advocate for each criminal defendant rather than to
ensure that a defendant will inexorably be represented by the lawyer who
he prefers, citing Wheat v. United States, 486 U.S. 153, 159 (1988).
The Fulton opinion further instructs when a lawyer's conflict,
actual or potential, may result in inadequate representation of a defendant
or jeopardize the court's institutional interest in, *~ rendition of a just I
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25 !
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verdict, a trial judge has discretion to disqualify an attorney or decline a
proffer of waiver. Id. 5 F.3d at 612. The Court additionally observes
where a government witness implicates defense counsel in a related
crime, the resulting conflict so permeates the defense that no meaningful
waiver can be obtained. In such a case, the court assumes that counsel's
fear of, and desire to avoid, criminal charges or even the reputational
damage from an unfounded but ostensibly plausible accusation, will
----- ---affect-virtually-eve1~-aspect-ofhis or-her representation of the defendant-.------ --------- -·
Id. 5 F.3d at 613.
It was certainly not this court's desire or inclination to simply
remove Attorney Centini from her representation of the defendant in the
instant matter. However, it was immediately apparent, given the
extraordinary nature of the allegations, that serious consideration of her'
disqualification was required.
Indeed, the spectre of delay in this repeatedly delayed trial was
troubling. The potential of yet another lawyer, in a line of lawyers, to
represent this defendant would clearly portend additional delay and the
expenditure of considerable_ resources.
Removal was, the obvious, necessary and only appropriate action
based upon the aforementioned allegations. The alleged criminal conduct
26
of Attorney Centini was inextricably linked to her continued
representation in this capital case. Moreover, the alleged conduct
transformed her role as an advocate to a lawyer intent upon unethically
shaping the course of a trial in an attempt to alter its outcome. A failure
to remove defense counsel charged with this conduct would be, in our
judgment, fundamentally unfair.
Counsel stood charged with attempting to change or alter the
-- ----.testimonr-of-Commonwealth.witnesses.tc.secure an unwarranted------- -···· ···--· ---- -- - -
advantage for her client, a defendant accused of capital crimes. The
verdict in this and any trial should be the result of zealous advocacy,
admissible evidence and applicable law and not that of a defense lawyer
and investigator meeting, at their request, with Commonwealth witnesses
at a bar during which they provide a "letter" from the defendant, which
even the most feeble minded would recognize as intimidation or threat.
Defense counsel's alleged participation in this conduct is the
antithesis of ethical and vigorous advocacy. It deprives the District
Attorney and therefore the citizens of this Commonwealth of a fair and
impartial trial and cannot be tolerated or condoned. Furthermore, there is
absolutely no evidence in the record before this court which would
permit a conclusion that the Commonwealth's motion to disqualify
27
Attorney Centini was "baseless and unnecessary" and simply
"concocted" by the Commonwealth to create a conflict of interest.
Absent from the record is any assertion, based upon testimony, evidence
or representations by Attorney Centini herself that the alleged conduct .
was concocted or false or even that she wished to continue in her
capacity as counsel for Mr. Selenski.
One should not confuse Ms. Centini' s right against self
-·· · ---incrimination--with-her-obligation;-bothethical-and-as-appointed-counsel--- ···--·----···-·
utilizing public funds, to represent this accused capital murderer. Query
how representation could be accomplished when Ms. Centini was not
present. Moreover, counsel actually appeared "on her behalf' and
specifically stated he was not representing Hugo Selenski. Can it be
seriously argued this judicial rabbit hole scenario suggests the absence of
a conflict.
Even a Sophist would not assert that a lawyer allegedly bent on
corrupting a trial, yet alone one where a defendant stands accused of the
most heinous of crimes, should remain in that capacity because the
defendant, her alleged co-conspirator, wants her to do so.
Simply stated, defense counsel's removal from this case was
precipitated by her alleged conduct ~d that of her client, Hugo Selenski.
28
IMPEACH1\1ENT
Appellate counsel next asserts the Commonwealth failed to
disclose "material and vital impeachment evidence" of a key
Commonwealth witness, Christina Strom. Specifically, it is argued the
Commonwealth failed to disclose that it had agreed to advocate for Ms.
Strom at her federal sentencing hearing and that a motion to reduce her
. . . _ ... -sentencing-exposure, ..based. upon.her.cooperation, ..had been previouslr-------·-····· --··-·· . . .
been filed in 2007. In support of this argument counsel attaches the
previously referenced excerpt from Ms. Strom's hearing before Judge
Vanaskie.
The Commonwealth responds that the charges pursued against Ms.
Strom were brought by the United States Attorney and that the
Commonwealth's efforts on her behalf=consisted of relating her
cooperation to the federal judge presiding over her case which was
indeed related to the defense".
The Commonwealth further asserts that Ms. Strom's indictment,
guilty plea agreement and proffer letter were placed of record as exhibit
76, 77 and 113 respectively. The Commonwealth additionally asserts the
29
trial transcript in the instant matter reflects that Ms. Strom's proffer
requires her to testify at trial and cooperate with the government.
Christina Strom's testimony appears in the trial transcript at pages
707 through 952. Initially, we shall review the law applicable to the
Commonwealth's obligation under Brady v. Macyland, 83 S. Ct. 1194
(1963) and its progeny regarding evidence of an impeaching nature.
In Commonwealth v. quniel, 30 A.3d 11 ll(Pa. 2011) the
· -·-------Supreme-€ourt-examined precedent considering the· due . process-- -- · · · · · · ·
requirement that a jury be informed of any promise or understanding that
the government would extend leniency in exchange for a witness's
testimony. Chmiel explains that the understanding between the
prosecution and its testifying witness need not be in the form of a signed
contract or completed ironclad agreement in order to qualify as Brady
material. Impeachment evidence which goes to the credibility of a
primary witness against the accused is critical evidence and is material to
the case whether that evidence is merely a promise or an understanding
between the prosecution and the witness.
Id. 30 A.3d at 1131.
We will review Ms. Strom's testimony as it relates to the issue
raised.
30
During direct examination the first assistant district attorney asked
Ms. Strom whether she "ended up with some federal charges." In
response the witness indicated she was charged with perjury, for lying at
a grand jury hearing and also for money laundering. ( Trial Transcript
N.T. 713). In further explaining the nature of the charges Ms. Strom
stated she lied about "where the money came from." She indicated she
advised the grand jury that the sums about which she was questioned
· --· -· --were-saved-Father-than-eoming-from the defendant-Hugo-Selenski. (Jd;------- · ·----·· · ·
N.T. 713 through 715).
The prosecutor showed the witness Commonwealth's exhibit# 76,
which was identified as the money laundering offense contained in the
federal indictment.
The- witness further identified Commonwealth's exhibit# 77 as a
copy of the plea agreement in the federal prosecution. Ms. Strom
affirmed that the referenced plea agreement required her truthful
testimony in the state proceeding for the murders of Mr. Kerkowski and
Ms. Fassett. The witness specifically stated that the plea agreement
mandated "cooperation with the government". (Id. N.T. 716).
31
The prosecutor additionally questioned the witness regarding
Commonwealth's exhibit# 113 which was referenced as a "proffer
letter".
Ms. Strom next acknowledged she had not been sentenced with
regard to the federal charges and in explaining "Why not?" she responded
"I have to cooperate and testify at all the hearings. (Id. N.T. 717).
During cross-examination Ms. Strom was asked about her
. .... . . +testimony-beforethegrandjuryr She was-specifically-questioned-about---------- . -·. . · · ·
Commonwealth's exhibit# 76 and further acknowledged that although
she took an oath to tell the truth before the grand jury she, in fact, did not,
resulting in the perjury charge. (Id. N.T. 842, 843).
· Defense counsel posed additional questions regarding the fact that
Ms. Strom had not yet been sentenced in federal court and that she was
present testifying on behalf of the Commonwealth. (Id.N. T. 843).
During subsequent cross-examination this witness further
acknowledged lying to the grand jury regarding money kept in a wine
jar.(ld. N. T. 894).
Defense counsel returned to the theme of lying under oath at page
911 of the transcript and posed the question whether it was true that as
part of her plea agreement Ms. Strom had to cooperate and testify in the
32
trial of Hugo Selenski. The witness acknowledged the agreement
required her to cooperate and testify "no matter what". (Id.N. T. 911 ).
Ms. Strom further acknowledged that is to her benefit. Defense counsel
specifically asked "And isn't it true that you will get consideration for
testimony-for your testimony?" to which the witness responded "Yes".
(Id.N.T. 912). The previous question was followed up with a question
regarding whether Ms. Strom would receive "substantial assistance" for
· ·-·· -her-cooperation-resulting-in areducedsentenceto which she-responded: · · ·------ . -- -··
"Yes, I assume". (Id. N.T. 912).
After additional cross-examination defense counsel again asked the
witness whether her plea agreement requires that she cooperate with the
Commonwealth and testify against the defendant in the instant matter to
which she responded "Yes, itis". (Id. N.T. 920).
At the conclusion of cross-examination the witness was asked,
over the course of the last thirteen years how many times have you met
with law enforcement or police officers to which she responded "I don't
have an exact amount. The trial was supposed to happen many, many
times, and I've been in with them. I couldn't honestly say an answer, but
I've been with them quite often". (Id. N.T. 932). As a follow up defense
33
counsel reiterated that this was part of her plea agreement to which Ms.
Strom responded "It's part ofmy plea agreement, yes". (Id. N.T. 932).
We have reviewed the portion of Ms. Strom's sentencing
transcript, previously referenced in this opinion, within the framework of
the Commonwealth's obligation to provide impeaclunent evidence and
discern no Brady violation.
The transcript, in relevant part, contains testimony elicited by
·----· -Assistant-United-States-Attorney-WilliamSpencer.Houser from.Luzerne.Lc-c.L. .
County Assistant District Attorney Jarrett F erentino which outlines the
nature and extent of Ms. Strom's participation and cooperation in the
prosecution of Hugo Selenski. The AUSA's questions were
supplemented by those posed by counsel for Ms. Strom, Joseph A.
O'Brien, Esquire.
At various points during the proceeding Attorney F erentino
described Ms, Strom's testimony as ''vital", "extremely significant" and
"compelling''.
In response to a question by defense counsel Attorney Ferentino
stated he found everything Ms. Strom related to the state prosecutors to
be. "credible" and "documented evidence".
34
At pages 14 and 15 of the sentencing transcript Attorney Ferentino
indicates, in part, "And I had assured her and Sam Sangudolce had
assured her that we would sit here and note her participation and explain
to you, Your Honor, just how significant her testimony was and who she
was for our case". Attorney Ferentino further related "I wouldn't be here
if Tina Strom did not do what she promised us to do and in a fashion that
helped us secure a conviction against Hugo Selenski".
· · -·· · ·-----In-order-to··establisb-a-Brady·violation; the-defendant hrurtlu'!·---------------·---·- - · · ·
burden of demonstrating that ( 1) the prosecutor has suppressed evidence;
.(2) the evidence, whether exculpatory or impeaching, is helpful to the
defendant, and (3) the suppression prejudiced the defendant. Prejudice is
demonstrated where the evidence suppressed is material to guilt or
innocence. Further, favorable evidence is material, and constitutional
error results from it's suppression by the government, if there is a
reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence
in the outcome. Commonwealth v. Koehler, 36 A.3d 121, 133 (Pa.
2012)( Citations omitted). i
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When the testimony of Attorney Ferentino during Tina Strom's
sentencing proceeding is juxtaposed with the cited portions of trial
transcript and applicable law it does not suggest or require the conclusion
that the Commonwealth withheld or suppressed impeaching evidence.
PAUL WEAKLEY; CAUTIONARY INS1RUCTION
Appellant asserts a new trial is warranted because the court failed
--- --to-provide-an-appropriate--cautionary--instructionafter the testimony· of. · · · · · · -·· · · · ·- ·- - -
Paul Weakley, an alleged co-conspirator ofSelenski, that Weakley's
guilty plea to the homicide charges involving Mr. Kerkowski and Ms.
Fassett, as well as the Goosay charges, could not be used as evidence
against Mr. Selenski.
During the course of an in chambers meeting to consider an offer of
proof regarding Paul Weakley defense counsel stated '~I think at some point,
there's going to need to be some sort of, umm cautionary instruction provided
that, umm, the fact that Mr. Weakley has plead guilty cannot in any way be
inferred as guilt towards Mr. Selenski". (Id. N.T. 994). Thereafter, prior to the
conclusion of Mr. Weakley' s testimony the trial judge advised all counsel that
he would give a cautionary charge concerning how Mr. Weakley and Mr.
Selenski allegedly met while incarcerated. Parenthetically, it should be noted
36
that this issue was previously discussed and ruled upon. Additionally, the trial
judge indicated he would give a cautionary charge regarding the "Goosay
incident" in accordance with Superior Court's opinion permitting the
introduction of the robbery there committed. 7 Defense counsel. again requested
what was termed a "limiting instruction" regarding Mr. Weakley's guilty plea
to the murders and Goosay robbery. After a brief discussion concerning the
two previously mentioned cautionary instructions the record reflects Attorney
will be given at the appropriate time. I will give it''. hnrnediately thereafter the
first assistant district attorney indicates he has no objection to the requested
instruction. (Id. N.T. 1334, 1335).
Subsequently, during the charging conference the trial judge
reiterated "Mr. Rymsza I referred to the guilt by association charge,
which we discussed earlier. That will be given as presented by you". (Id.
N.T. 2700). On the very next page of the transcript the judge again states
he will charge the jury regarding guilt by association requested by
Attorney Rymsza. An examination of the jury instructions reveals the
court did just that.
7
These Instructions were subsequently given and are reflected at pages 1346, 1347 and 1348 of the
trial transcript.
37
Jurors, you have heard testimony regarding Paul Weakley's
guilty plea in connection with the murders of Michael Kerkowski
and Tammy Fassett. I am specifically instructing you that Mr.
Weakley's guilty plea cannot be considered as evidence against
Mr. Selenski. Mr. Selenski has a right to have his guilt or
innocence determined by the evidence presented against him, not
by what has happened with regard to the criminal prosecution of
Mr. Weakley. You are prohibited from inferring guilt by
association. You may only consider Mr. Weakley' s testimony
pursuant to the rules I have and will give you through the
conclusion of my charge.
(N.T. 2820).
--· Appellant:.s-asserted-error-is belied by an-examination-of the--------------·--·-------····- ·
record.
ERNEST CULP
Appellant argues the trial court committed reversible error in
permitting the Commonwealth to introduce the preliminary hearing
testimony at trial of Ernest Culp, an unavailable witness, in violation of
the defendant's right to confrontation under both the "Pennsylvania and
United States Constitutions".
On January 5, 2015, in response to the Commonwealth's motion in
limine, this court issued an order and memorandum permitting the
Commonwealth to utilize the preliminary hearing testimony of Ernest
(Ernie) Culp. This memorandum is appended hereto as court's
attachment # 1 and incorporated by reference, Although clearly set forth
38
in the memorandum, we direct the readers attention to footnotes 4 and 5.
These footnotes reference prior opinions issued in this case on May 17,
2007 and July 21, 2010 by then presiding Judge Chester B. Muroski.
These opinions, at the pages designated in the aforementioned footnotes,
extensively discuss the analytical framework employed in this context.
GOOSAYROBBERY
.... . Appellant's.connsel . argues_the.triaLc.ourt.committed_reversible . ------·--··-- .
error when it permitted the Commonwealthto elicit testimony regarding
a firearm used in what has become commonly referenced as the
"Goosay" case. It is suggested this ruling ran afoul of the majority panel
opinion issued by Superior Court on February 17, 2009. Conunonw~lth
v. Weakley, 972 A.2d 1182 (Pa. Super. 2009).8 The relevant facts and
procedural posture there considered are set forth at pages 1185 through
1187 of the opinion. Superior Court quotes extensively from the trial
court opinion which summarized the circumstances of the Goosay
robbery. In pertinent part these circumstances include:
8
Fitzgerald, J., flied a dissenting opinion. The cases against Weakley and Selenskl were consolidated
by Superior Court sua sponte as the Commonwealth appealed from the trial court's granting
defendants' motions In limlne to exclude "other crlm.es"evldence relating to the subsequent Goosay
robbery.
39
- One of the men displayed a firearm and ordered Goosay to the
floor.
- The man with the firearm remained behind while the other man
left in Goosay' s car.
Weakley's DNA was found on one of the dishcloths located in
the car, Goosay identified Weakley early on and, on August 27,
2003,
- Weakley admitted to the robbery and stated that Selenski was
involved in and planned the robbery.
Weakley indicated that Selenski held Goosay at gunpoint using
a BB-type handgun while Weakley secured Goosay with
handcuffs and put duct tape over his eyes and mouth.
- The sneaker print allegedly matches a sneaker ofSelenski's
found at Mt. Olivet Road, and a BB-type pistol found in a
---------·----------vehicltn:>p~rated-by Selenski "dutilliftneJune 2U03 search ofMt
Olivet Road was consistent with the weapon described by
Goosay,
- A black BB-type pistol was found in a vehicle operated by
Selenski.
As indicated, the trial court initially excluded evidence from the
· Goosay robbery in the underlying homicide prosecutions of Mr. I
1-
Kerkowski and Ms. Fassett. Superior Court observed that the essential l
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thrust of the Commonwealth's argument on appeal is that the trial court II
erred in granting the defense motion in limine because "evidence of the . I
i
Goosay robbery was admissible due to the great number of similarities II
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between the crimes."(Emphasis supplied), (Id. at 1187).
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Superior Court next identified the twelve purported similarities set i
I
. i
forth by the Commonwealth at pages 1187 and 1188 of the opinion. For I
40
our present purposes, without fully setting forth these similarities, we
note none include a gun or weapon.
In reviewing the purported similarities, through the analytical lens
of applicable law, Superior Court concluded that evidence of the Goosay
robbery would be admissible at the subsequent murder trials.
Interestingly, in conducting this analysis Superior Court observed:
In comparing the methods and circumstances of separate crimes, a
,---court-must-necessarily-look-for.
. similar-ities-in-a-number-of-factor-s,----·-·--·--· ..
including.{I) the manner in which the crimes were committed; (2)
weapons used;(3) ostensible purpose of the crime; (4) location;
and (5) type of victims.
(Id. at 1189),( emphasis added).
Furthermore, in rejecting the argument that the other crimes
evidence was more prejudicial than probative Superior Court
commented:
To be sure, the [Goosay robbery] involves an intense episode very
much in the nature of the charged crime-as it must to have
probative value. When viewed either on it's own facts or in the
context of a charged crime alleging death by strangulation and
multiple macabre burials, however, the "other crimes" evidence as
to the methods of selecting, ambushing, restraining, and robbing a
victim - who managed to survive in relatively good health -
cannot be presumed to rouse the jury to overmastering hostility.
(Id. at 1191).
During trial Samuel Goosay was called by the Commonwealth and
'i I
testified regarding the facts and circumstances of the aforementioned
41
robbery. This testimony appears at pages 2307 through 2382 of the trial
transcript. 9
Mr. Goosay outlined for the jury what occurred on August 27,
2003 as he was sitting at his kitchen table eating dinner at approximately
6:00 p.m .. Two men burst through the door one of whom, subsequently
identified as Hugo Selenski, had a gun which was pointed at Mr. Goosay
as he was pushed to the floor and his life threatened. (N.T. 2311 through
- - - -23-1-3~;--Mr::-Ooosay-identified-Commonwealth~s exhibit·#-I-8-5-as-the-gun----· --- -- -- - - · - -
brandished and used by Mr. Selenski.
Mr. Goosay additionally described his ability to push previously
applied duct tape off one eye and observe the gun on his bedroom dresser
while Mr. Selenski was on his knees. Mr. Goosay stood up grabbed the
gun and put it to Selenski' s head after which a struggle ensued and Mr.
Goosay was struck several times in the arms, face, legs and chest.
(N.T.2329 through 2332). During the struggle Selenski was able to
secure control of the gun.
Subsequently, Mr. Goosay related that the phone rang at his
residence. Selenski placed the phone in a manner in which he could hear
9
At the conclusion of Mr. Goosay's testimony the court gave an appropriate cautionary instruction
regarding the jury's consideration of the events which occurred on January 27, 2003. (N.T. 2383,
2384).
42
what was being said. The alarm company was calling and advised Mr.
Goosay that the alarm was going off at his jewelry store and that the
police had been dispatched. At that point Selenski " ... hit me in the back
of the head with a gun- - that gun you showed me before and took off out
the front door''. (Id. N.T. 2338).
During the testimony of Paul Weakley the Commonwealth posed
multiple questions concerning, and elicited information regarding, the
· · . ···-··--Goosay-robbery.-(N.-T-.--1-l89-through-l212).-At.page_l.1.9.7_ofthe . . -· . . .
transcript Attorney Rymsza interposes an objection regarding Weakley
testifying about the gun used in the Goosay robbery indicating "The
Superior Court Opinion didn't reference anything about the use of a
guri". A discussion then ensues between the defense, commonwealth and
the trial judge examining this issue, after which the court overruled the
defense objection regarding mention of the gun. (N.T. 1198 through
1207).
Initially, we observe that the previously referenced Superior Court
Opinion at no time identifies and discusses the admissibility or
inadmissibility of specific evidence regarding the Goosay robbery.
Rather, in the context of considering the admissibility of other crimes
evidence, the court concludes that evidence of the robbery is admissible
43
because of the number of identified similarities in the offenses
considered.
Evidence of the Goosay case could have indeed become what
Judge Muroski described as "a mini - trial" within the murder
. prosecutions. JO
Succintly stated, the previously referenced testimony is evidence
of the robbery committed by Selenski and Weakley against Mr. Goosay.
·· · ··----·--It-may-also-be-considered-an-rulditional.similarity__be_tween the two
offenses. An additional similarity cannot make the Superior Court's
holding less compelling. Indeed, just the opposite, a gun possessed and
used by Selenski during the course of the Goosay robbery makes the
rationale and holding of the Superior Court more compelling.
The Superior Court was unequivocally aware that a gun was used
I
(
during the Goosay robbery, given its aforementioned references to Judge I
Muroski' s trial court opinion.
I
We can discern no reason to prohibit testimony regarding the gun I
j
and Selenski's possession ofit. This would require the Commonwealth I
II
to present an edited version of the robbery, "evidence" of which was
i
I
deemed admissible by Superior Court, that would inaccurately portray
I
10
Trial Ct. Op at 19-20; 972 A.2d at 1187. i
44
events as they occurred. Selenski's conduct throughout the course of the
Goosay robbery was deemed relevant and admissible. We found and
reiterate, there is no legal or factual reason to remove from the jury's
consideration a substantial portion of Selenski's conduct during the
Goosay robbery. If this court sustained the objection interposed by
defense counsel the jury would have been left with a stilted and
substantially inaccurate picture of what occurred, a result which was
_ .unnecessary.and.unwarranted.l' . . .. . _ _ . _ .
DR. lvlICHAEL BADEN
Appellant posits two allegations of "reversible error" regarding the
testimony of Dr. Michael Baden, a forensic pathologist retained by the
Commonwealth in this matter. Initially, counsel asserts Dr. Baden's
. expert testimony regarding alleged blunt force trauma on the body of
Michael Kerkowski, caused by a rolling pin, was not rendered to a
reasonable degree of medical certainty. Secondly, it is asserted Dr.
Baden's expert testimony regarding the aforementioned blunt force
trauma on the body of Michael Kerkowski was based upon hearsay facts
"supplied by chief prosecution witness Paul Weakley, where such
11
On May 7, 2014 we precluded the Commonwealth from referring to the actual verdict rendered In
the Goosay case by the Monroe County jury. (May 7, 2014 Transcript N.T. 7 through 9).
45
statements are not the type reasonably relied upon by experts in the same
field, in violation of Pa.R.E. 703".
An offer regarding Dr. Baden's testimony appears at pages 2039
through 2055 of the trial transcript. The Commonwealth related, in part,
that Dr. Baden would discuss areas of blunt force trauma observed on the
body of Michael Kerkowski, particularly above his right knee, and the
back and top of his head which, it was asserted, corroborates the
testimony of Paul Weakley. (Id. N.T. 2042). The prosecution further
suggested this corroborates the testimony of Paul Weakley, "which Dr.
Baden is familiar with Mr. Weakley' s statement. It's referenced in his
report. Umm, he's going to testify that the rolling pin that he's been
shown could have caused the impacts that are in the - - the head and on
the knees of Michael Kerkowski".
Defense counsel objected, arguing the expert's report does not
express an opinion with a reasonable degree of professional certainty "so
we would ask to preclude his testimony and the - - the report, itself'. (Id.
N.T. 2043). Counsel further objected to Dr. Baden " ... using the
statements of Paul Weakley in reliance ofhis opinion from April 19,
2010 in his memo, umm, in that it's based on hearsay. Umm, I realize
Mr. Weakley's testified, but I still think, nevertheless, it's hearsay". (Id.
46
N.T. 2044). Defense counsel thereafter refers to what is described as the
third report authored by Dr. Baden on October 26, 2011 which, it is
represented, talks about hemorrhages on Mr. Kerkowski's body, that
were consistent with having been caused by blows from a rolling pin.
Counsel suggests that this opinion has not been made or rendered to a
reasonable degree of professional certainty. (Id. N.T. 2045).
f
Defense counsel further objected to Dr. Baden's use of the phrase
-------·-·-··--·-----------·-·-·-·--·----·--·- ------·-~-····-·-·-----·- -·-
I
"consistent with". (Id N.T. 2049).12
The argument regarding these issues goes back and forth at
pages2043 through 2055 of the trial transcript, during which defense
counsel acknowledges having three reports authored by Dr. Baden. The
dates represented are June 8, 2003, April 19, 2010 and October 26, 2011.
Thereafter, at page 2128 of the trial transcript the trial judge denies
the defense objections regarding Dr. Baden's testimony. The court
references two opinions, Commonwealth v. Baez, 720 A.2d 711 (Pa. . I
II iI
1999) and Commonwealth v. Spell, 28 A.3d 1274(Pa. 2011), in support i I
! \
of its conclusion. Baez, in particular, instructs that an expert is not . I. I!
! I
I I
I !
12
For Pennsylvania cases approving of the phrase "consistent with" in the context of expert I !
testimony, see Commonwealth v. Ratsamy, 934 A.2d 1233, 1237 (Pa. 2007), Commonwealth y. I Il
Minerd, 753 A.2d 225(Pa. 2000).
II
47 '
I
11
required to use or employ any magic words, such as to or with a
reasonable degree of medical certainty, when expressing an opinion.
Rather a court will look to the substance of the actual testimony in
examining its appropriateness.
Dr. Baden was called by the Commonwealth and initially outlined
his extensive education, experience and expertise. (Id. N.T. 2139 through
2148). Dr. Baden has received board certification in anatomic, clinical
·----~-·-- .. ·-·-·-""'"' - ,, .. , .. .
and forensic pathology and was permitted to testify as an expert in these
fields. (Id.N.T. 2147, 2148).
Dr. Baden was shown and identified Commonwealth's exhibits
232, 233, 234 and 236. They are respectively the autopsy report
regarding Tammy Lynn Fassett of January 8, 2003; the autopsy report of
Michael Kerkowski of June 8, 2003; correspondence dated April 19,
2010 directed to Det. Lt. R. Gary Capitano and correspondence dated
October 26, 2011 directed to assistant district attorney Michael Melnick.
Dr. Baden subsequently testified, in great detail, about the cause
and manner of death of both Mr. Kerkowski and Ms. Fassett, which
included an explanation of the mechanics of the strangulation process.
48
At page 2214 of the transcript Dr. Baden, in response to a question
posed by the Commonwealth, indicated he "reviewed. a multi-paged
statement of Mr. Weakley". Dr. Baden indicated the autopsy findings
were consistent with the statement. (Id. N.T. 2215).
Thereafter, at page 2218, Dr. Baden reiterated that the statement he
reviewed was consistent with the findings he expressed to the jury. The
witness specifically stated the placement of multiple ligatures on Mr.
------ -~ ··#"•' -·--···-· -. ----·--·--·-----·· •..• - ·-------·------
Kerkowski was consistent with Mr. Weakley's statement.
Defense counsel requested a sidebar during which the
Commonwealth outlined additional questions it wished to pose regarding
Mr. Weakley's testimony concerning his observation of Mr. Kerkowski's
face turning blue. Argument regarding this issue appears at pages 2221
through 2223 of the trial transcript, at the conciusion of which the trial
court precludedany additional reference to Mr. Weakley's statement. (Id.
N.T. 2223).
Dr. Baden was subsequently questioned regarding what was
identified as a kitchen roller (Commonwealth exhibit #53) and expressed
an opinion that this was the type of instrument which could cause the
49 ·
blunt force injuries about which Dr. Baden was previously questioned.
(Id. N.T. 2233, 2234).
At the conclusion of direct testimony Dr. Baden stated that all of
the opinions expressed were given to a reasonable degree of medical
certainty in the field of forensic pathology. (Id. N.T. 2236).
During cross-examination Dr. Baden was repeatedly questioned
. ·--··· ·-· regardin_R_the_initial a.u..topsy_reports.and-the..subsequent-correspondence-----·-··
.· .
which discussed bruising as a result of blunt force trauma. (Id. N.T. 2250 ·
through 2262). The witness acknowledged the initial autopsy reports
contained no reference or discussion regarding the bruising or blunt force
trauma.
Upon further cross-examination Dr. Baden was asked about a
meeting which occurred on October 25, 2011 at his office in Manhattan.
The witness indicated he was provided with a twenty page statement
represented to be from Mr. Weakley. (Id. N.T. 2263). The statement was
described as handwritten and the witness stated "I believe Mr. Weakley
gave information to a person who wrote this down". (Id. N.T. 2266,
2267). No further questions were posed regarding the statement.
50
An examination of the transcript reflects that at no time was Dr.
Baden asked to identify or recount any portion of the statement nor did
he articulate the words purportedly contained in the statement during his
testimony. More importantly, as reflected in the contextual summary,
Paul Weakley testified during the course of this trial prior to Dr. Baden.
Initially, we observe that the opinion of a medical expert rendered
to the requisite degree of certainty is itself evidence. Commonwealth v.
•••••·• ••·'" "' ••••••~•••••• --·--• 00000•••• •••-•-•--·•·,0,,0000 .. _ 0••-•, •• • ••• 00, 0" 0 0 .. --•••-•• ~-'"000----·----·--"~-·-•••••• MO
Martin, 101 A.3d 706, 729 (Pa. 2014).13
It cannot be overemphasized that Dr. Baden was not permitted to
act as a conduit to relate inadmissible hearsay information. As indicated,
no specific statements reviewed by Dr. Baden and attributed to Paul
Weakley were communicated to the jury. That Dr. Baden's opinions
regarding pre-death blunt force trauma inflicted by an object consistent
with the aforementioned rolling pin, corroborated the testimony of Mr.
Weakley in significant respects, does not establish en·or .14
13
For a discussion regarding the scope of an expert report in criminal cases where the court
considered expressed opinions not included or different from those contained in the report; See
Commonwealth v. Roles, 116 A.3d 122 (Pa. Super. 2015); Commonwealth v. Stith. 644 A.2d 193 (Pa.
Super. 1994).
14
We concur with the court's observations In Galloway v. Mlssissippj, 122 So. 3d 614 {Miss. 2013)
that a forensic pathologist may testify as to what produced a victim's injuries and what trauma such
an Injury would produce. A forensic pathologist may also testify about wounds, suffering, and the
51
!
lI
That Dr. Baden was provided a statement from Mr. Weakley, \
which he reviewed, is similarly not problematic given both his
I I
acknowledgement of same and more importantly Weakley' s testimony
ii
under oath during trial.1s We reiterate, Dr. Baden did not act as a conduit
from which flowed hearsay testimony of a non testifying witness. The
I
Commonwealth simply did not employ Dr. Baden as a vehicle to
introduce the testimony of Mr. Weakley as substantive evidence of the
. · --·-·---defendant.!.s-gui-lt.--Any-suggestion-to1:he-contrruyis·belted-bytlie recora:---_-·--··:··· .
No authority with which this court is aware would preclude the
Commonwealth from contacting a forensic pathologist, after the
performance of an autopsy and the issuance of a report, to pose additional
questions regarding what the prosecution deems relevant and necessary
in preparing its case.16 These contacts and inquiries were not only
acknowledged by the witness but Dr. Baden's written opinions in this
means of infliction of an Injury since It falls within his area of expertise. Furthermore, a forensic
pathologist may testify as to whether a particular instrument or weapon In evidence was consistent
with particular Injuries to a victim.
15
The Pennsylvania Supreme Court has long held that expert opinion testimony Is proper if the facts
upon which It Is based are of record. Commonwealth v. Rounds, 542 A.2d 977 (Pa. 1988).
16
Indeed, one may question the fundamental competence of a pr"s~cutor who did not do so.
52
regard were provided to the defense well in advance of trial. Indeed,
defense counsel does not suggest otherwise.17
MISTRIAL REQUEST
Here appellant states the trial court committed reversible error in
denying a defense request for mistrial after "key prosecution witness Tina
Strom testified that Mr. Selenski went to the police station in January
2003 to "talk.about a robbery' after the Commonwealth __was.sp.ecifically-------·-----·····.
"admonished from introducing said testimony".
In response the Commonwealth asserts that the trial court, after
denying the.motion for mistrial, gave a cautionary instruction to the jury.
Additionally, the Commonwealth argues the statement in question was an
admission by the defendant to Ms. Strom.
During the testimony of Ms. Strom the first assistant requested a
sidebar during which he advised the court of his intent to ask the witness
about an incident in January of 2003 "where she observes the defendant
doing cocaine and then, for some reason, wants to go speak with police.
She tells him that she thinks that's a crazy idea, and he wants to go and
17
rt Is slgnlllcant to note that as a result of defense counsel's request, this court appointed and
authorized the expenditure of public funds for the forensic pathologist Identified by the defense to
assist the defendant In any manner deemed appropriate.
53
talk about a robbery. He's acting high and very nervous. It's being
offered in line with her previous testimony to show his behavior after he
had done it and how its erratic." (N.T. 760). The court sustained an
objection to the proposed testimony.
After a recess the Commonwealth continued with its questioning of
Ms. Strom. Referencing January of2003 the Commonwealth asked
whether Ms. Strom went with the defendant to the Dallas Police Station
to which the witness replied yes. Ms. Strom was asked how it came
about that Mr. Selenski wanted her to accompany him to the Dallas
Police Department and she responded "Umm, he just said, You want to
go with me? I want to go to the Dallas Police Department and talk to the
police". (Id. N. T.766).
Counsel then inquired "Did you ask him why?" and Ms. Strom
replied "I asked him why, and he said he had information about a
robbery". (Id. N.T. 766).
Defense counsel interposed an objection and requested a sidebar.
The transcript reflects a lengthy discussion regarding the objection after
which the court stated "A reference to robbery would be prejudicial in
this context. I will sustain the objection as to robbery", (Id. N.T. 777).
54
A discussion continued about other aspects of Ms. Strom's testimony
after which the court overruled an additional objection by the defense but
reiterated the witness may not use the word robbery. (Id. N.T. 780).
After continued discussion defense counsel made a motion for a
mistrial. (Id. N.T. 783). The trial judge denied the motion and indicated
he would provide a cautionary instruction. (Id. N.T. 784).
Thereafter, the record reflects the following_instmc.tion..gi:v_en-to-the---····-· ·
jury:
You are to disregard the last response that was given from this
witness. Do not allow it to be considered in any of your
deliberations. Whenever I sustain an objection or order evidence
stricken from the record, you must completely disregard that
evidence when deciding this case, understood? The last response
is stricken.
(Id. N.T. 786).
In Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 2011)
Justice Baer, author of the opinion, instructs it is well-settled that the
review of a trial court's denial of a motion for a mistrial is limited to
determining whether the trial court abused its discretion. In this regard,
an abuse of discretion is not merely an error of judgment, but if in
reaching a conclusion the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of partiality,
55
prejudice, bias or ill-will discretion is abused. A trial court may grant a
mistrial only where the incident upon which the motion is based is of ·
such a nature that its unavoidable effect is to deprive the defendant of a
fair trial by preventing the jury from weighing and rendering a true
verdict. A mistrial is not necessary where cautionary instructions are
18
adequate to overcome prejudice.
Additionally, as the Superior Court observed in Commonwealth v.
Padilla,_.221.A ..-2dJ_L89,J.1.q_4=9.5.(:ea ... Super. 2007-)-a-mere-passing··· ··· ··- ···---------···· ·· · · ·
reference to prior criminal activity will not necessarily require reversal
unless the record illustrates definitively that prejudice results. Prejudice I
I
I
I
results where the testimony conveys to the jury, either expressly or by
reasonable implication, the fact of a distinct criminal offense. Padilla's I
I
I
holding was reiterated in Commonwealth v. Hudson, 955 A.2d 103l(Pa.
I
Super. 2008) where the court observed.that the mere passing reference to
prior criminal activity is insufficient to establish improper prejudice by
itself. Furthermore, the trial court may cure the improper prejudice with
an appropriate cautionary instruction to the jury. The instruction must be
clear and specific, and must instruct thejury to disregard the improper
evidence.
18
see also, Commonwealth v. Johnson. 107 A.3d 52, 77 (Pa. 2014).
56
l
'
After examining the transcript we conclude that the statement I !
I
I
uttered by Ms. Strom purportedly made by Mr. Selenski about a robbery
is both innocuous and vague. It does not directly or necessarily by
inference suggest that Hugo Selenski is going to the Dallas Township
Police Department to implicate himself in a robbery. It is also apparent {
these words were uttered by Mr. Selenski. It was the defendant who
requested that Ms. Strom accompany him to the Dallas Township Police
............. _Ilepartment-on-the-day-in-question:--. :··-··----·--·-·-------- - . ..
I I
\
Even assuming the reference could be construed as criminal
activity on the part of Mr. Selenski the record reflects the response was
immediately objected to and, subsequent to a sidebar conference, the
court gave the above referenced cautionary instruction. ·
We conclude the defendant was not prejudiced by Ms. Strom's
response and, assuming prejudice, the direct, concise and specific
instruction given by the trial judge cured the prejudice.
CONSCIOUSNESS OF INNOCENCE INSTRUCTION i
Appellant's counsel argues the trial court committed reversible
II
error by failing to provide a "consciousness of innocence instruction" !
I
I
57
I
I
I
where the trial evidence supported such an instruction referencing the
t
\
\
trial transcript at pages 2694 to 2699.
I
An examination of the transcript reflects the court conducting an in
chambers charging conference during which defense counsel requested I j
\
the aforementioned charge. The only evidence referenced by counsel !
\
was " ... I believe that- - umm- -Mr. Selenski offered to help dig, umm, i
when they were executing the search warrant, as well as, I believe he
voluntarijy_wmt_to...the-police .umm----1-think-it-was-Shickshinny. ~ wliicn- . ·
tended to show that he cooperated with the police". (N.T. 2697). The trial
judge thereafter denied the defense request. (Id. N.T. 2699).
In Commonwealth v. Thomas. 54 A.3d 332 (Pa. 2012) the
Pennsylvania Supreme Court affirmed the first degree murder conviction
I
and death sentence of Dante Thomas concluding, in part, that a requested
consciousness of innocence instruction was not warranted.
The opinion reflects the appellant there argued the trial court erred
I
by failing to give this instruction although appellant provided no legal
I
authority or support for such a charge. Appellant argued it was a Il
I
i
"corollary" to the consciousness of guilt instruction given by the court. I
!
As factual support for the appropriateness of the instruction the appellant I
58
cited his post-arrest cooperation with the police including a statement he
gave in custody in which he denied the killing.
The Thomas court reviewed decisions from other jurisdictions
;
rejecting a similar instruction.19 These jurisdictions include Connecticut, I
l
I
I
Massachusetts, California and Arizona. Our Court indicated it was I
I
I
persuaded by the reasoning of the decisions in our sister states, as well as i
r-
!
our own Superior Cou11, and declined to hold that a consciousness of
. . ...... i.nno.cenc_e_j.ur.y-instruction-would-have-been·propedn··th1ffiffitteftliere-·- -
considered. The Court further indicated the matter is properly one of
argument to the jury. (Id. at 343).
At footnote four, the Thomas opinion noted whether a
consciousness of innocence instruction might ~ be appropriate under
the factual circumstances of a particular case is left to the sound
discretion of'the trial courts.
If indeed the instruction is ever appropriate, it was certainly not
presently.
19
The opinion referenced a decision by the Pennsylvania Superior Court In Commonwealth v.
Hanford, 937 A.2d 1094, 1097·98(Pa. Super. 2007) where Superior Court determined the claim was
merltless.
59
HONORABLE BRENDAN J. V ANSTON
· Appellant's counsel asserts the trial court erred in permitting a
sitting common pleas court judge to testify in the instant matter because
the "testimony was irrelevant and highly prejudicial as it gave the
appearance of using the prestige of his office to advance the credibility of
and bolster the Commonwealth's case".
In response the Commonwealth observes appellant has failed to
. cite.any.autbority-for-the-proposition·thata-witn-es-ssnoulcll5eprecluaed-----------··--·-· · ·
from testifying simply because the witness is a judge. "This position is
not supported by the Rules of Evidence or any presidential case in
.Pennsylvania". The Commonwealth additionally argues the testimony of
Judge Vanston was "directly relevant" since he observed the defendant I
i
i·
!
glaring at him throughout the proceeding which was the subject of his i
l
testimony and further observed "the unusual behavior of the defendant i
1
and the victim". In further explaining its position, the Commonwealth
I
states during trial evidence was presented that Mr. Selenski extorted i I
i' 'I
money from the parents of one of the victims, Mr. Kerkowski, "leaving iI li
them to believe their son had fled after his guilty plea, but before his
sentencing in Wyoming County." The Commonwealth also asserts that a
trial issue involved the defense claiming that the money Mr. Selensk.i was
I
60 i
I
I
receiving from Mr. Kerkowski was payment for legal services. "Judge
Vanston observed defendant present with Mr. Kerkowski at the time of
his guilty plea."
At the inception of Judge Vanston's appearance the record reflects
the Commonwealth articulating an offer of proof. In response defense
counsel stated" I don't have any issue with Judge Vanston coming in and
testifying that he presided over Mr. Kerkowsk.i's case. What I do have a
. --·- . __p_roblem.. with Is.hlm.inlecting-his credibility-into-this:"-counserffirtlier______ .
stated "I think its prejudicial if he comes in and he starts discussing this- -
stare or this look and what his perception is". (Id. N.T. 275, 276).
The trial judge overruled the objection indicating he would permit
adequate cross examination and encouraged defense counsel to make any
objections deemed appropriate during the course of Judge Vanston's
testimony. (Id. N.T.277 ,279).
Judge V anston assumed the stand and indicated he is currently a
senior judge in the Commonwealth of Pennsylvania. In 1989 he was
elected as and presided as the only judge in Wyoming and Sullivan
County, subsequently retiring in January of 2010.
61
This witness indicated he knew Mr. Kerkowski as a result of a
prosecution "in my courtroom on a number of charges back in 20011-
2002". (Id. N.T. 284).
.·
Judge Vanston thereafter identified Commonwealth's exhibit# 23-
\
a photo of Michael Kerkowski. i
This witness additionally identified Commonwealth's exhibit # 41-
a photograph of Tammy Fassett. I I
I
Judge-Vanston-related-·Mr;-~erkowsktwa:s-founa guilty of five or - -·· \
lf
six offenses during ~ jury trial in which he presided, He identified
Commonwealth's exhibit# 26 as the verdict slip from that trial, dated
February 28, 2002.
Judge Vanston also indicated Mr. Kerkowski had a number of
other outstanding charges "and he ended up pleading guilty to more
charges later on". (Id. N.T. 288).
Judge Vanston next identified Commonwealth exhibit# 4 as a
photograph of a person observed in his courtroom on April 25, 2002. (Id iI
N.T. 290). April zs", the witness explained, was the date of Mr. !
!
Kerkowski's guilty plea to the remaining offenses and the individual in 1
the photograph, Hugo Selenski, accompanied him to the courtroom. (Id.
I
N.T. 291). Mr. Kerkowski's counsel was ~lsQ present, The witness I
i
62
I
further stated that Mr. Selenski was the only spectator present that
morning.
When asked ifhe recalled anything particular, Judge Vanston
responded:
First of all, it started with the guilty plea. The gentleman
seated at that bench - - and it was a fairly lengthy proceeding,
probably lasted a half - hour - - stared at me the whole time in
what I would call a glare. An that caused m.e some concern and
subsequently took some of their actions about, but that's the first
unusual thing that happened that day" .
----·········· .. . ·--· ------------···
(Id. N.T. 293).
Judge Vanston reiterated that the described guilty plea occurred on
April 25, 2002. Sentencing was initially set for May 8, 2002 but then
continued until May 14, 2002.
During the guilty plea the judge instructed Mr. Kerkowski to report
to adult probation and thereafter left the bench. As the judge entered his
chambers and removed his robe to begin to work on other matters he
observed Mr. Kerkowski and Mr. Selenski walk by from left to right.
Judge Vanston next testified about what he described as their very
unusual behavior.
Well, I saw, umm, the same two gentlemen I'd seen in court
just a few minutes earlier walking from my left to right, and they
63
were slapping each other on the back, lauf ing and, at one point,
gave each other, (indicating), high fives. 2
(Id. N.T. 298).
Judge V anston, utilizing photographs, described how he moved
from one window to another to continue to watch the behavior of the two
individuals on the sidewalk. He then walked into the next room to
continue to watch the activity and continued his observations until the
"two gentlemen went out of view". (Id. N.T. 301).
The witness identified Commonwealth's exhibit #28, a bench
warrant issued for the arrest of Michael Kerkowski as a result of his
failure to appear for sentencing on May 14, 2002. (Id. N.T. 305).
During cross-examination Judge Vanston explained that Mr.
Kerkowski appeared in front of him as a result of"serious drug offenses"
and that Mr. Kerkowski was "definitely going to state prison". (Id. N.T.
313). Judge Vanston further indicated that although Selenski glared at
him during the entire guilty plea proceeding he did not feel intimidated.
(Id. N.T. 316 through 320).
20
Paul Weakley advised the jury that Hugo Selenski and Michael Kerkowski were not friends. Indeed,
Mr. Weakley testified that Hugo Selenskl "hated" Michael Kerkowskl. Mr. Weakley further described
the relationship between Selenskl and Kerkowskl as "flnanclal", Weakley additionally stated that
Hugo Selenski provided absolutely no legal services for Mr~ Kerkowski, (Id. N.T. 1029 through 1031).
64
Initially, we observe appellant's allegation of error in this regard is
legally inadequate. Itfails to articulate or explain the basis for the
conclusion that Judge Vanston' s testimony was "irrelevant and highly
21
prejudicial".
I
In Commonwealth v. Flamer, 53 A.3d 82(Pa. Super. 2002) I
Superior Court reversed a trial court' s determination. that the evidence
I
there considered was inadmissible as irrelevant. The opinion outlines
I I
-· ----·- the followlng.principles .relating-to-relevance... · - ·- - ·-·---·-------·- .
The threshold inquiry with regard to the admission of evidence is
whether the evidence is relevant. Unless otherwise prohibited by law, all
relevant evidence is admissible; all irrelevant evidence is inadmissible
(Pa. R.E. 402.) The Pennsylvania Rules of Evidence define relevant
evidence as "evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence". Pa.R.E.
l
i
\
40l(emphasis added). Evidence may be excluded if its probative value is I
I
I
: !
!
outweighed by the danger of unfair prejudice. Pa.R.E. 403. "Evidence is
not unfairly prejudicial simply because it is harmful to the defendant's
I
21
Because all relevant Commonwealth evidence ls meant to prejudice a defendant, exclusion Is !I I'
llmlted to evidence so prejudlclal that It would Inflame the Jury to make a decision based upon I. iI
something other than legal propositions relevant ~Q the c``~: ``mm9nwealth v. Gonzalez. 112 A.3d !
1232, 1238 n. 6 (Pa. Super. 2015). - · I I,
I I
65 :I
II ,,
I
I
)
case". Commonwealth v. Williams, 48 A.3d 1265, 1269 (Pa. Super.
2012); Commonwealth v. Page, 965 A.2d 1212, 1220 (Pa. Super. 2009).
A trial court is not required to sanitize the trial to eliminate all unpleasant
facts from the jury's consideration where those facts are relevant to the
issues at hand. See also, Commonwealth v. Antidormi, 84 A.3d 736,
749-50 (Pa. Super. 2014).
The term bolstering which counsel for the defendant employed in
. .. --···· _y_ario.us-instances.-throughout-the-trial-transcript-has1r-speciliclegar- . ---·------------ .
meaning. Justice Eakin , author of the court's opinion in Commonwealth
v. Smith, 995 A.2d 1143 (Pa. 2010) instructs improper bolstering or
vouching for a government witness occurs where the prosecutor assures
the jury that the witness is credible, and such assurance is based on either
the prosecutor's personal knowledge or other information not contained
in the record.
Although it is not our obligation to do so we can conceive of no
.
meritorious or persuasive argument requiring the conclusion that the I
I
I
summarized testimony of Judge Vanston is irrelevant. Indeed, the I
I
I
opposite is true. Judge Vanston observed the alleged killer, Hugo I
i
Selenski, accompanying Mr. Kerkowski, who was found guilty of and I
entered guilty pleas to serious drug offenses on April 25, 2002, just eight
I
66 I'
I
!
days before Mr. Selenski allegedly murdered Mr. Kerkowski with a
motive of financial gain. 22
The jury was certainly free to conclude that this was part of an
ongoing calculated and cunning plan by Selenski to ingratiate himself
with Mr. Kerkowski knowing Mr. Kerkowski would be sent to prison and
then not only kill Mr. Kerkowski for profit but thereafter lead
!
I
Kerkowski' s parents to believe he fled to avoid imprisonment and in turn l
I
... . __ extortthem-into-providing~£legal-assistance1'-for-their"50n,Wlio was . -· II
actually dead and buried behind Selenski's home.
PAULR. WEAKLEY
I
In the final allegation of error counsel for appellant asserts the
Commonwealth failed to disclose what is described as "its tacit
agreement with its key witness Paul Weakley, which can reasonably be
inferred by his conduct in reversing bis refusal to testify at the eleventh
hour".
The Commonwealth responds that the allegation of error fails to·
set forth any term of the alleged "tacit" agreement with Mr. Weakley and
further that Mr. Weakley explained the reasons for his deciding to testify
22
Mr. Weakley described the defendant's long st~!'l~!n~ pla!11Q (n.f~rr``ate, rob and murder Mr.
Kerkowskl at pages 1045 through 1050 of the trial transcript.
67
during trial and was questioned about agreements. "Mr. Weakley was
cross-examined ad nauseam about his prior crimes and any benefit he
received in exchange for his testimony'' referencing the trial transcript at
pages 1328 through 1330. The Commonwealth additionally asserts the
defendant has failed to allege any benefit that was not disclosed, since
!
one does not exist. "Defense makes merely a blind, conclusory l
I
!
allegation unsupported by the record. We submit that this allegation, li
.... ·-. ___ruing_wholly_unsupported,.fails and a new.trial .iscertainly-not..warranted ... --··--....... -------·· · . . ·
therefrom".
By way of context we observe the following. On December 24,
2014 the Commonwealth submitted a motion in limine to admit certain
prior-statements of Paul Weakley, as well as a brief in support thereof. I
i
f
The defendant's brief in opposition was received on December 30, 2014. . I
On January 2, 2015 the Commonwealth filed a supplemental brief which .I
!1 1•
' I
essentially asserted a new and different avenue for the admission of Mr. .
Weakley's statements. A hearing on the original motion, which had been
scheduled for that day, was continued to January 5, 2015. Thereafter, on
January 5, 2015 defense counsel submitted a reply brief.
At the inception of the January 5, 2015 hearing the first assistant district
attorney represented that subsequent to ~ ~91,lY«;mmtipnwith Mr. Weakley, that
68
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morning, defense counsel were advised that the Commonwealth would be
withdrawing the aforesaid motion. (January 5, 2015 N.T. 6). 'The trial judge I I
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inquired whether the defense wished to be heard and was advised ''No, Your
l
Honor".
Subsequent to a discussion of other issues, defense counsel,
referencing the Commonwealth's motion which in turn referenced a recent
letter from Mr. Weakley regarding his unwillingness to testify, requested
. ··-·-···---the-defense-be--fumished--with-same;--:After·inquiry-by-tiwcourtllie-frrst·-·--·---···
assistant district Attorney represented that the aforementioned letter would
be transmitted that day l.e. January 5, 2015. (Id. N.T. 11, 12 ).
Paul Weakley's trial testimony begins with an offer of proof at
page 958 of the trial transcript and concludes at page 1343, after which
the Commonwealth and the defense read a stipulation regarding Mr.
Weakley to the jury. (Id. N. T. 1350).
We will examine Mr. Weakley's testimony in the context of the
alleged error.
During the offer of proof defense counsel references previous court
orders requiring the Commonwealth to disclose "any promises of
leniency, immunity, any sort of benefits". Defense counsel, citing the
Commonwealth's aforementioned motion in limine, asserted " ... because
69
they believed he was going to go south on them. I think, in light of that,
we're entitled to know what changed his mind. I mean, I'm .. - if there's
any - .. been any sort of benefit or any additional promises that have been
made, I think we need to know it".
Defense counsel also requested the Commonwealth state of record
that they provided all information regarding any benefit that Mr.
Weakley may receive or is anticipated to receive. Defense Counsel
.. acknowledges-the-federal-plea-agreement1mdwru1ris-descnfiecCas ailufe _
35 Motion and indicates "I think it's incumbent to know what may be - -
what - - what the Commonwealth knows, what may have been discussed.
I realize it's not their case, urnm, but, certainly, they are part of the,
(gestures air quotes), Prosecution team, they are privy to that information
and, uh, in addition, they're still looming his, umm, his State Court
murder case as well. Umm, I think we're entitled to know, in light of all
that, just for. the record, umm, what has been promised or what's
expected". (Id. N.T. 969, 970).
The trial judge thereafter directs that the Commonwealth "disclose
anything that you're aware of, representations or deals". The assistant
district attorney responds to the court's question at pages 970 and 971 of
the trial transcript after which the c9.µrt pps~rv`` that Mr. Weakley' s trial
70
for the murders of Mr. Kerkowski and Ms. Fassett is scheduled for
February.
The trial judge next posits the following inquiry:
Now, since he since [Mr. Weakley] has returned from Arizona
or whatever precipitated his return from Arizona, where there was
an indication he was reluctant to testify in this case, have any
additional promises. or preferential treatment been afforded him? l
(
The assistant district attorney responds :
-· ·-·- ----- ....
"No, Your Honor".
·-----------··-·------·--· -"' .. - -··· - -·- ----·----------. ··-· ----------·- -- ----·-- ·------· ··- ... .. I I
I
(Id. N.T. 971 ). I
~-
The first assistant district attorney additionally states:
I can tell you, Your Honor, what happened when I found
out that he wasn't going to testify- - in fact, what he said
was that he didn't want to come to Luzerne County, that he
was happy where he was, I immediately had him transported
to Luzerne County, and in our meeting, we let him meet his
lawyer. Obviously, we weren't privy to that discussion. I ;
!
believe that his lawyer probably spelled out his deal and i
.
'
what his obligations were, and I think Mr. Weakley's . ~
statement was that the damage was done. He didn't want to
leave Arizona. He was already here. So, we didn't promise
anything. I've had no discussions, nor has any member of
the Prosecution team would have had any discussions with
the Federal Government about what he would get or any
such thing. So, he is in the exact same status now as he was 'i
I )
before I received that letter. I I
i i
I t
(Id. N.T.971, 972). I
!
During his direct testimony Mr. Weakley is questioned regarding
his current place of incarceration, the Federal Penitentiary in Tucson,
71
Arizona.23 Mr. Weakley explains that he is serving a federal sentence of
what is described as life plus ten years for the murders of Mr. Kerkowski
and Ms. Fassett and for the offense involving Samuel Goosay's home in
Tannersville. (Id. N.T. 1008).
Mr. Weakley identifies Commonwealth's exhibit# 128 as his
federal plea agreement. (Id. N.T. 1012). He is asked and answers several
questions by the Commonwealth regarding the terms and conditions of
_______ the-plea-which-appear-at-pages-1-0-1-5-tlrrough-1017-of-tb:e
trifillranscripl _
The prosecutor further questions Mr. Weakley regarding additional
charges that neither the Commonwealth of Pennsylvania nor the United
States Attorney would pursue as part of his agreement to testify. These
included robberies and what are described as "church burglaries" .
(ld.N.T. 1021). In this regard the witness acknowledges that several of
the burglaries or robberies were not pursued by the Luzerne County
District Attorney in exchange for the agreement entered into and further
that he was required to acknowledge his role in the murders of Mr.
Kerkowski and Ms. Fassett as well as the Goosayrobbery. (Id. N.T.
1021).
23
The city of Tuscon ls misspelled whenever It appears In the trial transcript.
72
Concerning what are described as the "Kerkowski/Fassett
murders" Mr. Weakley acknowledges that the charges remain
outstanding in Luzerne County and that they will "eventually be
dropped". (Id. N.t. 1022).
At the inception of cross-examination Mr. Weakley is extensively
questioned regarding his .numerous prior meetings with law enforcement
and the multiple lies and inconsistent statements told over the course of
.. .these_meetings.-fld.-N.T.·1-2-16-through-1242;-125-1-thfougnf280J:--·----····---·----. .
During this questioning Mr. Weakley acknowledged he was
absolutely looking for a benefit as a result of his cooperation.
This witness was further cross-examined about the charges filed
against-him for the Kerkowski and Fassett murders, on May 12, 2006.
(Id. N.T. 1264).
Beginning at page 1281 of the trial transcript Mr. Weakley is
questioned regarding his prior crimes. He is thereafter cross-examined
regarding the aforementioned plea agreement in the federal prosecution.
(Id. N.T. 1284, through 1286). Questioning in this context included the
aforementioned church burglaries as well as "numerous burglaries in the
!
winter of 2002/2003 that I committed that I wasn't prosecuted for under l
the terms of'the agreement". (Id. N.T. 128(j). I
I
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73 11
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Counsel additionally questioned Mr. Weakley regarding what was
described as an attempted escape from the Lackawanna County Prison in
2007 and child pornography charges. (Id. N.T. 1287).
During additional cross-examination Mr. Weakley acknowledged
that he declined requests by the defense team to be interviewed in the
instant matter. (Id. N.T. 1292).
Defense counsel questioned Mr. Weakley regarding a letter dated
............ ----November--20,-101-3--and-identified·as·defendant1s··exhibit#··60·whidrlre---·----···· ··--········ ·
acknowledged writing, indicating he would not testify in this matter. (Id.
N.T. 1322, 1323).
Mr. Weakley further acknowledged subsequently meeting with the
District Attorney's Office and when questioned about what "the D.A.
said to change your mind?", Mr. Weakley responded "The DA really
didn't say anything, it was me coming around. I'm- - I was- - there's
nothing in this for me. I'm not up here to get anything for testifying.
And the repercussions I was receiving in prison for my role in testifying -
- in this case were severe. I had been attacked and stabbed over 3 0
times". (Id. N.T. 1323) ..
74
Mr. Weakley acknowledged that during this meeting the
prosecution reminded him of the "portions of your plea agreement that
· talk about cooperation and substantial assistance". (Id. N.T. 1326, 1327).
Mr. Weakley was next cross-examined regarding a second letter
dated December 15, 2014, identified as defendant's exhibit# 61,
referenced as "Greetings from Tucson". This letter informed the Luzerne
County District Attorney that Mr. Weakley did not wish to testify. He
. · -··--·-·-··-Was-thereafter-transported-to-buzeme-€ounty. ·
During redirect exemination Mr. Weakley was questioned
regarding the two aforementioned letters and described his life in prison
as an informant. He stated that he was "victimized" severely on
numerous occasions indicating "You're considered one of the lowest
members of prison society, and you're often victimized physically for - -
for being labeled as an informant". (Id. N.T. 1342).
At the conclusion of Mr. Weakley's testimony a stipulation, l
I
identified as No. 12 entered into on February 10, 2006, was read to the
I
jury by counsel for the defendant.
The Commonwealth of Pennsylvania v. Hugo Selenski - -
I
this will be Stipulation No. 12. On February 10, 2006, the DA- -
I 'I
i
Assistant - - the Luzerne County District Attorney's Office wrote a 11
.I
letter to Hugo Selenski's counsel, stating the Commonwealth is not I
I
charging Paul Weakley with offenses he admitted to committing in
various interviews with law enforcement related to burglaries of
75
churches in the Back Mountain area; two, additionally, the Luzerne
County District Attorney's Office entered into plea deals on the
prosecution of Paul Weakley relating to the Hi-Tech Water
burglary. Part of the non-prosecution agreement on the burglaries
was that Paul Weakley was· required to provide truthful testimony
against Mr. Selenski. Previously, Paul Weakley has not provided
truthful testimony; therefore, he could have been charged with
those burglaries, if the Prosecution chose to do so, and as of this
date, Paul Weakley has not been charged with those burglaries.
(Id. N.T. 1350, 1351).
Appellant's assertion that the Commonwealth had a "tacit
. ·······--·--agreement~.!. .with-Mr.-Weakley-is-categoricallywith-out support:--Tlie only·---·
thing that may be reasonably inferred from Mr. Weakley's testimony, in
this context, is that he testified for exactly the reasons he repeatedly
stated throughout both direct and extensive cross-examination. As
should be evident from even a cursory review of his testimony, defense
counsel aggressively peppered Mr. Weakley with multiple questions
designed not only to demonstrate he was an admitted liar but also to
establish his testimony was purchased by the Commonwealth to
implicate Mr. Selenski and to "save himself'.
Mr. Weakley's prior crimes were explored; his plea agreements
extensively examined; the letters he forwarded to the Commonwealth
indicating an unwillingness to testify identified and questioned. Mr.
Weakley was vigorously questioned regarding multiple felonies,
I
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76 I
unrelated to the present offense, committed in Luzerne County from
which he literally walked away.
He was questioned regarding a long list of prior inconsistent
statements concerning these murders and his purported lack of
involvement These included questions regarding his implication of
innocent people in these killings to "misdirect" the focus from him.
We recall the prescient words of Judge Muroski in denying a
···-----motion-to-d~clare-Mr-;-Wealdey-incompetent-as-a-matter-or-law.24 ·--··-··-·-·····-···
That Weakley has provided numerous prior inconsistent
statements does not, as a matter of law, require or dictate the legal
conclusion he is incompetent as that term is understood in
Pennsylvania jurisprudence. Indeed, the Commonwealth candidly
acknowledges that the information outlined in the defense motion
and referenced by Defense counsel during the May 18, 2010
hearing can be employed to challenge Mr. Weakley's credibility. II
t·
It is obvious there exists significant fodder for cross-
examination, and potentially substantive evidence of his lack or
credibility. It is also readily apparent that Mr. Weakley's
credibility, or lack thereof, will be a crucial and significant issue
for the jury to consider and resolve. The jury is free to conclude
that Mr. Weakley is a serial liar or, on the other hand, that he was a
willing participant in the heinous conduct which is alleged by the
Commonwealth.
l
Having presided in this trial, it should be obvious to anyone with a i I
I
modicum of experience in the criminal justice system and even a cursory
understanding of the evidence presented, that once the jury resolved the
24
Memorandum of July 21, 2010.
77
issue of credibility in favor of Mr. Weakley, Hugo Selenski's fate was
clear.
END OF OPINION
ORDER ATTACHED AS PAGE 79
78