Com. v. Crawford, H.

J. S72026/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
HOLLY ANN CRAWFORD, :
:
Appellant : No. 2284 MDA 2015
Appeal from the Judgment of Sentence December 4, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No.: CP-40-CR-0002431-2014
BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED DECEMBER 14, 2016
Appellant, Holly Ann Crawford, appeals from the Judgment of Sentence
entered by the Luzerne County Court of Common Pleas following her
conviction by a jury of two counts each of First-Degree Murder and Criminal
Conspiracy.1 After careful review, we affirm on the basis of the trial court’s
Opinion.
On April 21, 2014, Appellant and her boyfriend, James Roche, shot and
killed the two victims, Ronald “Barney” Evans and his son Jeffrey Evans, in
their home in Hunlock Creek, Pennsylvania. We adopt the facts as set forth
by the trial court. See Trial Court Opinion, filed 3/1/16, at 3-35. However,
for purposes of the appeal, we note the following relevant facts.
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 2502(a) and 18 Pa.C.S. § 903, respectively.
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Several witnesses described Roche’s anger toward Ronald Evans
stemming from Appellant’s previous intimate relationship with Ronald Evans,
and Roche’s history of violent behaviors involving firearms, including an
incident where Roche fired a weapon at Ronald Evans’ home.
Appellant admitted that on April 21, 2014, after a night of drinking and
arguing about Appellant’s previous relationship with Ronald Evans, Roche
stated his intention to kill Ronald Evans. Appellant agreed to join Roche,
and added that they should kill Jeffrey Evans as well. Roche and Appellant
left their home with two firearms and returned approximately one hour later.
Police later found Ronald Evans and Jeffrey Evans in their home shot
to death. A broken portion of the trigger guard police recovered from the
Evans’ home belonged to one of the firearms Appellant and Roche had taken
from their own home, a .22 caliber rifle. When police attempted to arrest
Appellant and Roche, they both fled into the woods near their home with
seven knives and a wooden display case taken from the Evans’ residence, as
well as a loaded .44 caliber revolver.
After initially denying any involvement in the shooting and denying
knowing Ronald and Jeffrey Evans, Appellant eventually admitted to being
present at the time of the shooting. Appellant told police that she acted as a
decoy when Ronald Evans initially refused to answer the door for Roche.
In addition, witnesses described Appellant’s suspicious behaviors
indicating her consciousness of guilt, including plans to flee to Philadelphia
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using her mother’s vehicle and bank card, fleeing into the woods with Roche
after Appellant’s mother called the police, and statements to family
members to watch the news because she “did something real bad.” Trial
Court Opinion, filed 3/1/16, at 15. Appellant admitted to her daughter that
she shot Ronald and Jeffrey Evans in the head and that she had no remorse,
stating “[i]t was just like shooting a deer.” Id. at 16.
On December 2, 2014, Appellant filed an Omnibus Pre-Trial Motion
attempting to suppress her statements to police. On March 20, 2015, the
trial court denied Appellant’s suppression Motion after a hearing.
A jury trial ensued, at which numerous witnesses testified. During the
testimony of Appellant’s mother, Moya Linde, the court permitted the
admission of a photo of the victims while alive despite Appellant’s objection.
The trial court provided a cautionary instruction.
On September 23, 2015, the jury convicted Appellant of two counts
each of First-Degree Murder and Criminal Conspiracy. On December 4,
2015, the trial court imposed a term of life imprisonment.
Appellant filed a timely Notice of Appeal. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.
Appellant presents seven issues for our review, which we have
reordered for ease of disposition:
1. Whether the trial court committed an error of law or abuse of
discretion in denying [Appellant’s] Motion to Suppress her oral
statement.
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2. Whether the trial court erred in allowing the Commonwealth
to publish pictures of the victims while they were alive.
3. Whether the evidence was insufficient to convict [Appellant]
on the crime of First[-]Degree Murder and Conspiracy.
4. Whether the trial court committed an error of law or abuse of
discretion in failing to issue a jury instruction on Involuntary
Manslaughter.
5. Whether the trial court committed an error of law based upon
abuse of discretion [] in failing to issue a jury instruction on
“ignorance or a mistake as to the matter of fact[.”]
6. Whether the trial court erred in failing to issue a jury
instruction as to whether [Appellant] was under a state of duress
when the crime occurred.
7. Whether the trial court committed an error of law or abuse of
discretion in failing to issue a voluntary intoxication instruction.
Appellant’s Brief at 1.
Appellant first challenges the denial of her Motion to Suppress her
statements to police. Our standard of review in an appeal from an Order
denying a Motion to Suppress is as follows:
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record
as a whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and
may reverse only if the court’s legal conclusions are erroneous.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citation
omitted).
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“It is within the suppression court’s sole province as factfinder to pass
on the credibility of witnesses and the weight to be given their testimony.”
Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super. 2006). Our
scope of review from a suppression ruling is limited to the evidentiary record
that was created at the suppression hearing. In re L.J., 79 A.3d 1073,
1085 (Pa. 2013).
After a careful review of the parties’ arguments and the record, we
affirm on the basis of the trial court’s Opinion. See Trial Court Opinion at
17-20 (incorporating the 3/20/15 Trial Court Opinion, and concluding it
properly denied Appellant’s Motion to Suppress her statements to police
because Appellant knowingly, intelligently, and voluntarily waived her
Miranda2 rights as demonstrated through the written waiver and testimony
from police about the circumstances of the statement and waiver).
Appellant next avers that the trial court improperly admitted “pre-
death photographs of the victims[,]” arguing that the photographs were
“irrelevant, prejudicial, and served no purpose other than to engender
sympathy.” Appellant’s Brief at 16.
It is well settled that the “[a]dmission of evidence is within the sound
discretion of the trial court and will be reversed only upon a showing that the
trial court clearly abused its discretion.” Commonwealth v. Tyson, 119
A.3d 353, 357 (Pa. 2015). “An abuse of discretion is not merely an error of
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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judgment, but is rather the overriding or misapplication of the law, or the
exercise of judgment that is manifestly unreasonable, or the result of bias,
prejudice, ill-will or partiality, as shown by the evidence of record.” Id. at
357-58.
Certain “life-in-being” evidence in the form of testimony showing the
victim was alive at a time prior to the murder may be admissible during the
guilt phase of a murder trial. Commonwealth v. Jordan, 65 A.3d 318, 333
(Pa. 2013). However, our Supreme Court has held that life-in-being
evidence in the form of photographs of a victim prior to his or her death “are
clearly irrelevant to [] the guilt or innocence of the accused[.]”
Commonwealth v. Rivers, 644 A.2d 710, 716 (Pa. 1994).
Here, we agree with Appellant that the trial court improperly admitted
the photographs of the victims while alive. Nevertheless, our review of the
certified record and the arguments by the parties reveals that the error was
harmless.
This Court will affirm the trial court’s Judgment of Sentence despite
trial court error if we conclude that the error was harmless.
Commonwealth v. Wright, 742 A.2d 661, 667 (Pa. 1999). Our Supreme
Court has noted that “[t]he doctrine of harmless error is a technique of
appellate review designed to advance judicial economy by obviating the
necessity for a retrial where the appellate court is convinced that a trial error
was harmless beyond a reasonable doubt. Its purpose is premised on the
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well-settled proposition that a defendant is entitled to a fair trial but not a
perfect one.” Commonwealth v. Thornton, 431 A.2d 248, 251 (Pa. 1981)
(quotation and citations omitted).
“Harmless error exists where: (1) the error did not prejudice the
defendant or the prejudice was de minimis; (2) the erroneously admitted
evidence was merely cumulative of other untainted evidence which was
substantially similar to the erroneously admitted evidence; or (3) the
properly admitted and uncontradicted evidence of guilt was so overwhelming
and the prejudicial effect of the error was so insignificant by comparison that
the error could not have contributed to the verdict.” Commonwealth v.
Melvin, 103 A.3d 1, 20 (Pa. Super. 2014) (quotation and citations omitted).
In this case, the Commonwealth introduced substantial evidence that
established that Appellant had committed the crimes of First-Degree Murder
and Criminal Conspiracy. As described by the trial court and confirmed by
our review of the record, Appellant admitted to numerous acts and
statements supporting her convictions, including her conversation with
Roche prior to the murders and her confessions of guilt to family members.
In light of this evidence and the trial court’s cautionary instruction to the
jury, any prejudice to Appellant was de minimis. We, thus, conclude that
the trial court’s error was harmless, and Appellant’s challenge to the
admission of the photographs fails.
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Appellant next challenges the sufficiency of the evidence supporting
her convictions for First-Degree Murder and Criminal Conspiracy. We review
claims challenging the sufficiency of the evidence by considering whether,
“viewing all the evidence admitted at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable the fact-finder to find
every element of the crime beyond a reasonable doubt.” Commonwealth
v. Melvin, 103 A.3d 1, 39 (Pa. Super. 2014).
The trier of fact—while passing on the credibility of the witnesses and
the weight of the evidence—may choose to believe all, part, or none of the
evidence. Id. at 40. Moreover, a jury may base a conviction solely on
circumstantial evidence. Id. In conducting our review, the appellate court
may not weigh the evidence and substitute its judgment for that of the fact-
finder. Id. at 39-40.
It is well-established that “[t]o sustain a conviction for murder of the
first degree, the Commonwealth must prove that: (1) a human being was
unlawfully killed; (2) the person accused is responsible for the killing; and
(3) the accused acted with malice and specific intent to kill.”
Commonwealth v. Hitcho, 123 A.3d 731, 746 (Pa. 2015); 18 Pa.C.S. §
2502(a). “Section 2502 of the Crimes Code defines murder of the first
degree as an ‘intentional killing,’” which, in turn, is defined as a “willful,
deliberate and premeditated killing.’” Commonwealth v. Diamond, 83
A.3d 119, 126 (Pa. 2013) (citing 18 Pa.C.S. § 2502(a), (d)). “[T]he period
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of reflection required for premeditation to establish the specific intent to kill
may be very brief; in fact[,] the design to kill can be formulated in a fraction
of a second. Premeditation and deliberation exist whenever the assailant
possesses the conscious purpose to bring about death.” Hitcho, supra at
746.
To sustain the conviction for criminal conspiracy, there must be proof
beyond a reasonable doubt that the defendant “(1) entered into an
agreement to commit or aid in an unlawful act with another person or
persons, (2) with a shared criminal intent and (3) an overt act was done in
furtherance of the conspiracy. This overt act need not be committed by the
defendant; it need only be committed by a co-conspirator.”
Commonwealth v. McCall, 911 A.2d 992, 996 (Pa. Super. 2006) (citation
and quotation omitted). See also 18 Pa.C.S. § 903.
The Honorable Fred A. Pierantoni III, sitting as the trial court, has
authored a comprehensive, thorough, and well-reasoned opinion, citing to
the record and relevant case law in addressing Appellant’s sufficiency claims.
After a careful review of the parties’ arguments and the record, we affirm on
the basis of the trial court’s Opinion. See Trial Court Opinion, 3/1/16, at 51-
56 (concluding that the evidence was sufficient to support Appellant’s
convictions based on Appellant’s conversation with Roche about the
shooting, Appellant acting as decoy, Appellant’s presence and actions in the
home during the shootings, Appellant’s flight with Roche after the shooting,
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Appellant’s admissions to police, Appellant’s inculpatory statements to third
parties, and the circumstantial evidence indicating Appellant’s consciousness
of guilt).
In Appellant’s last four issues, she claims that the trial court
improperly failed to issue certain jury instructions she had requested,
including instructions regarding Involuntary Manslaughter, ignorance or
mistake, duress, and voluntary intoxication.
Our standard of review in assessing a trial court’s jury instruction is as
follows:
When evaluating the propriety of jury instructions, this Court will
look to the instructions as a whole, and not simply isolated
portions, to determine if the instructions were improper. We
further note that[] it is an unquestionable maxim of law in this
Commonwealth that a trial court has broad discretion in phrasing
its instructions, and may choose its own wording so long as the
law is clearly, adequately, and accurately presented to the jury
for its consideration. Only where there is an abuse of discretion
or an inaccurate statement of the law is there reversible error.
Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014). “The
trial court is not required to give every charge that is requested by the
parties and its refusal to give a requested charge does not require reversal
unless the Appellant was prejudiced by that refusal.” Commonwealth v.
Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013).
After a careful review of the parties’ arguments and the record, we
affirm on the basis of the trial court’s Opinion. See Trial Court Opinion,
3/1/16, at 36-50 (concluding: (1) Appellant was not entitled to an
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Involuntary Manslaughter jury instruction because Appellant’s defense at
trial was that she did not kill the victim and there was no evidence to
support such an instruction; (2) Appellant was not entitled to an ignorance
or a mistake of fact jury instruction because the evidence did not support
such an instruction where Appellant claimed throughout the trial “that she
did not plan, intend, agree to participate[,] or participate in the killing of one
or both of the victims[;]” (3) Appellant was not entitled to a duress jury
instruction because there was no evidence of a present and impending
threat and Appellant did not actually admit to engaging in the charged
conduct as required by 18 Pa.C.S. § 309(a); and (4) Appellant was not
entitled to a voluntary intoxication jury instruction because there was no
testimony or evidence that Appellant’s alcohol use overwhelmed or
overpowered her faculties or sensibilities in any way).
The parties are instructed to attach a copy of the trial court’s Opinions
dated March 20, 2015, and March 1, 2016, to all future filings.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2016
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Circulated 11/28/2016 11:10 AM
, COMMON\VEAL TH OF PENNSYLVANIA: IN THE COURT OF COMMON PLEAS
OF LUZERNE COUNTY
v.
HOLLY ANN CRAWFORD,
Defendant No. 2431 of 2014
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A.2d 34(Pa. Super. 2002), Pa.R.A.P. 1925 is intended to aid trial judges in
identifying and focusing upon those issues which a party plans to raise in an
appeal. It is a crucial component of the appellate process and when a trial court
has to guess what issues are being appealed meaningful review is impossible. A
6
During his charge the Trial Judge explalned how the jury could appropriately consider this evidence. (Id. N .T.
1107, 1108).
35
concise statement which is too vague to allow the court to identify the issues raised
is the fuctional equivalent of no concise statement at all. Lemon considered an
allegation that the evidence was insufficient and the verdict against the weight of
the evidence. The appellant failed to identify specific reasons or even what
element or elements were lacking. Superior Court determined the allegation was
vague and the issued waived. Similarly, in Commonwealth v. Reeves, 907 A.2d
l(Pa. Super. 2006) the court noted "the Rule 192S(b) statement must be detailed
enough so that the judge could write a Rule 1925(a) opinion, but not so lengthy
that it does not meet the goal of narrowing down the issues previously raised to the
few that are likely to be presented to the appellate court without giving the trial
judge volumes to plow through". Id. at 3.7
Because of the nature of the instant matter, we will attempt to address or
comment upon the issues raised.
The allegations regarding the trial court's refusal to give certain requested
jury instructions have certain legal and factual overlap and will be considered
together. On September 21, 2015 the trial judge conducted a charging conference
considering, in part, the issues presently raised. (Id. N.T. 971 to 991). Similarly,
appellant's assertion regarding conspiracy and sufficiency of the evidence are
virtually identical and will be treated together.
7
Given the paucity of reference to the transcript and the failure to identify any witness, other than the defendant,
as well as the complete absence of citation to a statute, rule or case, this court was required to do significantly
more than that contemplated by the cases referenced above.
36
INVOULUNTARY MANSLAUGHTER
Appellant argues the trial court committed an error of law in failing to
charge the jury on involuntary manslaughter.
It is incumbent upon a trial judge to only instruct a jury regarding an offense
where the offense has been made an issue in the case and where the trial evidence
reasonably would support such a verdict. Instructions on matters which are not
before the court or which are not supported by the evidence serve no purpose other
than to confuse the jury. Commonwealth v. Patton, 936 A.2d 1170, 1176 (Pa.
Super. 2007). In determining whether a trial court erred in refusing to provide a
requested instruction, an appellate court determines whether the court abused its
discretion or committed an error of law. Where a defendant requests a jury
instruction on a particular defense, the trial court may not refuse to instruct the jury
regarding the defense if it is supported by evidence in the record. If evidence
exists to support the defense, it is then for the trier of fact to pass upon the
evidence and improper for the trial judge to exclude such consideration by refusing
the charge. Commonwealth v. Demarco, 809 A2.d 256, 260, 261 (Pa.- 2002).
Section 2504 (a) ofthe Crimes Code sets forth the definition of involuntary
manslaughter:
. 37
A person is guilty of involuntary manslaughter when as a direct result
of the doing of an unlawful act in a reckless or grossly negligent manner, or
the doing of a lawful act in a reckless or grossly negligent manner, he causes
the death of another person.
This offense therefore requires I) a mental state of either recklessness or gross
negligence and 2) a causal nexus between the conduct of the accused and the death
of the victim. Commonwealth v. Fabian, 60 A.3d 146, 151 (Pa. Super. 2013);
Commonwealth v. McCloskey 835 A.2d 801, 806 (Pa. Super. 2003).
Appellate counsel fails to articulate any reason or reasons why the court
erred in this regard. An examination of the relevant portion of the aforementioned
charging conference reveals trial counsel stated the Conunonwealth filed a charge
of "open homicide". Defense counsel then referenced the involuntary
manslaughter provision and stated "That is an issue for the jury, and I've discussed
the matter with Ms. Crawford. She's asking for the instruction. So, I'm asking for
the instruction." (Id. N.T. 978). Defense counsel additionally stated the
Commonwealth indicated "[Tjhat as a conspirator, as an accomplice, she went up
on the deck. She asked= she wanted Barney to come out. Once again, that is an
act, whether it be lawful on her part in thinking that Jim Roche wasn't going to do
anything or whether it be unlawful; and, it could be interpreted as reckless and,
therefore, the charge is appropriate". (Id. N.T. 978, 979).
The Commonwealth voiced an objection noting the defense, throughout the
entire case, asserted the defendant did nothing that caused the death of the victims.
38
The court thereafter denied the defense request. (Id. N. T. 979).
There is simply no evidence in this record which suggests that the killing or
killings were in any way accidental or that the defendant acted recklessly or with
gross negligence in the shooting of Barney or Jeffrey Evans.
Indeed, with regard to the requested instruction on involuntary
manslaughter, as well as the requests for instruction on voluntary intoxication and
duress, the record demonstrates, as outlined in detail above, that Ms. Crawford was
adamant and unequivocal in her categorical denial of any involvement in the death
of either or both of the victims.
IGNORANCE OR MISTAKE
In this context appellant argues "[Tjhat a reasonable explanation negates
intent, knowledge, belief, recklessness or negligence required to establish the
material elements of the crime charged. Defendant further argues that her belief
that J runes Roche, her co-defendant would not follow through with his threats was
reasonable because he had never followed through before. Testimony revealed
that Roche made repeated, almost daily threats about Ronald Evans and never took
action".
During the charging conference defense counsel requested an instruction
pursuant to Pennsylvania Standard criminal Jury Instruction 8.304, entitled
"Ignorance or Mistake". Counsel argued Crawford's belief that Roche would not
39
follow through "was certainly reasonable in that he had never followed through
before", (Id. N.T. 981 ). The Commonwealth objected and the Trial Judge
indicated that after reviewing the standard jury instructions as well as
Commonwealth v. Scott, 73 A.3d 599 (Pa. Super. 2013) the requested charge
would not be given.
In Scott a panel of the Superior Court examined a trial court's refusal to
provide a mistake-of-fact instruction.8 The factual context there considered
involved a group of men, including Scott, engaged in the smoking, snorting, and
injecting bath salts, a lawful practice at the time. The men were fearful because an
individual named Jeremiah Shoop had attempted to "rob" Scott's house the night
before, and because Shoop was making death threats against the men. While the
group was in the apartment, one of those present received threatening phone calls
from Shoop.
Shoop arrived at the apartment and in the ensuing melee Scott shot his friend
believing he was Shoop. The Commonwealth pursued the charges of attempted
murder and conspiracy against Scott with regard to Shoop and aggravated assault
and recklessly endangering with regard to the friend, Josh Lemin.
During trial the. defense proffered the theory of self-defense as to the charges
related to Shoop, but asserted the theory of mistake-of-fact as to the charges related
to Lemin.
8
Colvllle, J. filed a Dissenting Opinion.
40
In reversing the trial court's refusal to charge on mistake-of-fact Superior
Court concluded that the trial record established that a reasonable jury could have
determined that Scott shot at Shoop intentionally, warranting a self-defense charge,
but shot at Lemin mistakenly, warranting a mistake-of-fact charge. In arriving at
this conclusion the opinion distinguished the Pennsylvania Supreme Court's
holding in Commonwealth v. Harris, 665 A.2d 1172 (Pa. 1995). There the
defendant asserted he shot in self-defense, because he observed the butt of a gun
tucked into the victim's trousers. The defendant also asserted that the shooting
was an accident, testifying that the gun "went off' as he was backing up and two
individuals were trying to grab the gun. Scott observes the Supreme Court held
that the evidence clearly established the defendant did fear immediate danger of
death. The Supreme Court also determined that the defendant could not claim that
he intentionally shot the victim while also claiming that the shooting was an
accident. Harris instructs that where a defendant denies that the shooting was
intentional a defense of self-defense is not available because it is mutually
exclusive of the defense of accident or mistake.
As previously observed, Crawford's testimony in the instant matter was that
she did not plan, intend, agree to participate or participate in the killing of one or
both of the victims. She asked the jury to believe that she was on the victims porch
simply to retrieve what she claimed was stolen Klonopin. Her asserted "belief'
41
that Roche would not kill Barney Evans because Roche threatened his life on
numerous previous occasions does not implicate this defense as explained in either
Scott or Illustration #5 of the Standard Jury Instructions.
The aforementioned illustration provides:
[5. Let me illustrate what a mistake of fact might be. Suppose a person
has a blue Ford, and parks it in the stadium parking lot. After the game, the
person sees another blue Ford, and thinks it is actually his or her own car. If
the person tries to enter it, it may be under a mistake as to the fact of whose
car it is. In such a case you would have to decide, first, whether the person
really believed this fact; you would then have to decide whether it was a
reasonable mistake. Was the other Ford the same make and model; was it in
the same general area in the parking lot; were there no distinguishing
features? Finally, if the person did have the mistaken belief, and if making
such a mistake was reasonable, you would have to decide whether that
mistake eliminates an element of the crime. For example, ifit were a crime
· to intentionally enter another person's car, the mistaken belief would mean
that the individual here never intended to go into another person's car; the
individual thought he or she was entering his or her own.]
To state the factual context of Scott and that posited in illustration.s 5 is to
distinguish them from the matter at bar.
Additional support for this conclusion is found in the factual context
considered by Superior Court in Commonwealth v. Hamilton, 766 A.2d 874 (Pa.
Super. 2001). There the defendant shot and killed the 18 year old son of his live-in
girlfriend. The defendant was charged with murder and related offenses. The
defendant claimed throughout the trial process that he mistakenly believed that the
42
murder weapon was in fact not loaded and that he was only trying to scare the
victim who had grown too big for him to intimidate physically any longer.
Defense counsel argued that this mistake of fact could negative the requisite state
of mind, specific intent to kill, as well as the malice necessary to support a third
degree murder conviction or aggravated assault. Superior Court reversed the trial
court's refusal to give a mistake-of-fact instruction based upon the proffered
defense.
Instantly, Holly Crawford at no time suggested that she shot either one or
both of the victims unintentionally or believing that the firearm was unloaded.
Indeed, the defendant consistently and steadfastly stated she never had either one
or both of the .22' s in her hands.
To reiterate, the defendant claims her categorical innocence. The defense
essentially asked the jury to conclude that the defendant's actions and conduct
during April 21, 2014 was simply an attempt to placate and dissuade the defendant
and/or to just go along for a ride, either to shoot deer or retrieve stolen Klonopin.
On need 'only consider illustration# 5 and the holdings of Scott and Hamilton to
conclude those assertions do not implicate Section 304.
43
DURESS
Initially we observe that Crawford's requested instruction on duress, as well
as the requests regarding involuntary manslaughter, ignorance or mistake-of-fact
and voluntary intoxication, cannot be considered in a vacuum, divorced from the
testimony or evidence in this record and applicable law.
Regarding duress, we preliminarily note that the issue is not whether the
defendant wasin a state of duress on April 21, 2014 the issue, properly framed, is
whether the defendant killed one or both of the victims as the result of duress as
that term is understood in Pennsylvania jurisprudence.
During the charging conference the trial judge acknowledged the defense
was seeking an instruction pursuant to Pennsylvania suggested Standard Criminal
Jury Instruction 8.309.
In support of this request defense counsel stated:
If evidence is presented that the defendant would reasonably
believe she was under risk of harm, the charge is appropriate. The
immediacy or the imminency is not a requirement of duress. Based
on the totality of the circumstances and the evidence presented,
we feel the instruction shouldn't be refused.
There is no real indication that she recklessly subjected herself to
the duress. She was a constant subject of the abuse by Mr. Roche,
and we feel the charge would be appropriate.
(Id. N.T. 983, 984).
44
The Commonwealth voiced an objection and the Trial Judge indicated that,
after reviewing relevant case law, "There is not sufficient evidence to support this
instruction". (Id. N.T.986).
., .
In Commonwealth v. Demarco, supra.,the Pennsylvania Supreme Court
reversed a trial court's determination refusing to instruct the jury on the defense of
duress. The defendant made statements to the police, and in court, which
corroborated the allegations of an individual named Frank Lawra that a third
individual had vandalized Lawra's automobiles. When it became apparent that
these allegations were false, Demarco was charged with several offenses, including
perjury and false swearing. Demarco's defense was that Lawra had coerced him
into corroborating Lawra' s story. In support, Demarco offered proof that he was
borderline mentally retarded, and that Lawra had shot him with a BB gun, choked
him, and threatened to deprive him of his social security checks or kill him if he
did not comply, Demarco received social security as a result of his mental
disability and was living with Lawra without transportation or sufficient money to
move to alternative housing.
The Supreme Court, in an opinion authored by Justice Nigro, explained that
subsequent to the enactment of Section 309 (18 Pa.C.S.§309), the Supreme Court
has repeatedly recognized that the test for determining whether the evidence
supports a duress defense is that set forth in the statute, rather than the common
law test previously followed. Pursuant to Section 309, in order to establish duress
45
there must be evidence that: (I) there was a use of, or threat to use, unlawful force
against the defendant or another person; and (2) the use of, or threat to use,
unlawful force was of such a nature that a person of reasonable firmness in the
defendant's situation would have been unable to resist it. (Id. 916 A.2d at 261,
262). Justice Nigro further explained that the force or threatened force does not
need to be of present or impending death or serious bodily injury, rather the
relevant inquiry under Section 309 is whether the force or threatened force was a
type of unlawful force that a person of reasonable firmness in the defendant's
situation would have been able to resist.
In examining the factual context there considered the Supreme Court
concluded that the evidence was sufficient to present a question to the jury as to
whether Demarco was subject to duress, that is, whether Demarco was subject to
unlawful force and threats by Lawra that a person of reasonable firmness in
Demarco' s situation would not have been able to resist.
It is obvious from a review of Demarco that the defendant unlike Crawford
presently, admitted engaging in the criminal conduct for which he was accused but
defended by asserting he committed the crimes because of duress.
In Cmmnonwealth v. Markman,916 A.2d 586 (Pa. 2007) the Supreme Court
considered a first-degree murder conviction and death sentence where the trial
court, in part, refused to instruct on the defense of duress. In Marlrman the
46
defendant participated in the killing of Leslie White with her co-defendant William
Houseman.
Beth Ann Markman' s trial testimony and post-arrest statement contained
evidence that she was subjected to duress by Houseman during and immediately
prior to the kidnapping and homicide of Leslie 'White. The trial record also
established that Markman failed to take advantage of potential opportunities to
escape Houseman's control. These included an ability to seek help from a store
clerk or ask that police be called. The opinion also references Markman's ability
to run and seek help. However, the evidence also established that Markman had
been subjected to "terrorization, assaults, and death threats over a 2-day period
immediately prior to these events; she had already tried to escape from both the
front and back doors of the trailer, and each time had been violently restrained
from doing so by Houseman; and Houseman was at all relevant times in close
proximity to Markman and in possession of a hunting knife". Id.916 A.2d at 609.
The evidence established Markman acted with Houseman to subdue the
victim, bind her hands and feet with speaker wire, place a large piece of cloth in
the victim, s mouth, as well as a tight gag over the victim's mouth and around the
back of her head. Additionally, Markman held the victim down while Houseman
strangled her - killing her. Markman also assisted in disposing of the body and
engaged in additional efforts to conceal evidence.
47
When Markman was questioned by law enforcement she claimed she
participated in the killing because Houseman had threatened and terrorized her,
again unlike Crawford in the instant matter.
The Supreme Court concluded that the evidence relied upon by the defense
raised a question of fact as to whether she was subject to duress and further that the
trial court could not, as a matter of law, conclude that the defendant fell within the
exception outlined in· Section 309(b).9
The present record is absolutely devoid of any evidence that James Roche
asked, directed, required or threatened Holly Crawford to participate in the killing
of one or both of the victims. Indeed, the previously referenced trial testimony by
the defendant asserts she was trying to dissuade Roche and "get his mind off'
carrying through on the threats.
As previously indicated, Holly Crawford essentially stated while she may
have been present during the killings she did not participate in them. While a
defendant can certainly be present and not participate, a defendant cannot
participate and not be complicit.
Succinctly stated, there is no evidence in this record to establish that James
Roche coerced Holly Crawford into killing or participating in the killing of Barney
and/or Jeffrey Evans. The defendant unequivocally denied engaging in any
9
In the conceptually related affirmative defense of diminished capacity the Pennsylvania Supreme Court has
explicitly held that a defendant's testimony he was Innocent of murder precludes the assertion of this defense.
Commonwealth v. Cuevas. 832 A.2d 388, 393 (Pa. 2003).
48
conduct charged as a result of duress> as that term is defined in Section 309. Stated
alternately, what conduct did James Roche engage in or exhibit that caused or
required Holly Crawford to agree to kill, assist in killing or kill one or both of the
victims? The answer based upon this record is none. As importantly, Holly
Crawford repeatedly affirmed her innocence during her trial testimony.
VOLUNTARY INTOXICATION
In Commonwealth v. Miller, 664 A.2d 1310 (Pa. 1995) the court explained
in order to support a defense of voluntary intoxication, the evidence must establish
that, at the time of the murders, the defendant was overwhelmed by the effects of
alcohol to the point of losing her faculties and sensibilities, resulting in an inability
to form the specific intent to kill.
In Miller the defendant was convicted of first degree murder and sentenced
to death. Miller argued the trial counsel was ineffective for failing to present a
voluntary intoxication defense. In rejecting this assertion the Supreme Court
observed that Miller did not allege that he was too intoxicated to understand what
he was doing "when he committed the murders" or that he was drunk. (Id. 664
A.2d at 1324 ).
Additionally, in Commonwealth v. Hutchinson, 25 A.3d 277 (Pa. 2011), an
opinion referenced by the Trial Judge in declining defense counsel's request to
instruct the jury on voluntary intoxication (Id. N.T. 983), the Supreme Court
explains that a defense of diminished capacity, whether grounded in mental defect
49
or voluntary intoxication, is an extremely limited defense available only to those
defendants who admit criminal liability but contest the degree of culpability based
upon an inability to formulate the specific intent to kill. Absent an admission
from the defendant that he shot and killed the victim, trial counsel could not have
presented a diminished capacity defense. If a defendant does not admit that he
killed the victim, but rather advances an innocence defense, then evidence on
diminished capacity is inadmissible. Id. 25 A.3 d at 312 (citations omitted).
It is evident that the record establishes that Holly Crawford was drinking and
may have been intoxicated on April 21, 2014. It is equally as evident that Holly
Crawford did not "admit criminal liability but contest the degree of culpability
based upon an inability to formulate the specific intent to kill" and thus a charge on
voluntary intoxication was not appropriate.
PHOTOGRAPHS OF VICTIMS
Appellate counsel suggests the trial court erred in permitting the
Commonwealth to "publish pictures of the victims while they were alive" as this
was prejudicial, inflammatory and irrelevant. Counsel fails to identify when or
where in the transcript this occurred.
As referenced during the summary of Moya Linde's testimony the
Commonwealth introduced photos of Barney Evans and Jeffrey Evans as
Commonwealth's Exhibit 16 and 17 respectively.
50
Defense counsel initially voiced no objection to Commonwealth Exhibit 16
(Id. N.T. 225) but subsequently asserted an objection to the photos at a sidebar
conference. (Id. N.T. 227).
In overruling counsel's objection the trial judge permitted the witness to
identify both photographs and they were briefly displayed to the jury. The trial
judge additionally gave a cautionary instruction regarding the photographs. (Id.
N.T. 228). There was nothing about the nature or context of the photographs
which was likely to invoke sympathy on behalf of the victims or towards the
Commonwealth. Moreover, the complained of evidence merely offered a fleeting
glimpse of the victims as live breathing human beings. The victim of a murder is
not merely a prop and references to his humanity are not inherently and unfairly
prejudicial. Commonwealth v. Tedford, 960 A.2d l(Pa. 2008). We find no error
warranting the grant of a new trial.
SUFFICIENCY OF THE EVIDENCE
As previously indicated appellate counsel, in conclusory fashion, simply
asserts that the evidence is insufficient to prove the defendant acted with malice,
had a specific intent, or conspired to kill either of the victims referencing a sliver
of the defendant's testimony.
In reviewing the sufficiency of the evidence, we consider whether the
evidence admitted at trial, and all reasonable inferences drawn therefrom, viewed
in a light most favorable to the Commonwealth as verdict winner, support the fact-
51
finder's determination that all the elements of the offense have been proven
beyond a reasonable doubt. Commonwealth v. Montalvo, 956 A.2d 926 (Pa.
2008). In applying this standard, a reviewing court must bear in mind that the
Commonwealth may sustain its burden by means of wholly circumstantial
evidence.
To obtain a conviction for first degree murder, the Commonwealth must
demonstrate that a human being was unlawfully killed; that the defendant did the
killing; and that the killing was done in an intentional, deliberate and premeditated
manner, which the Pennsylvania Supreme Court has construed to mean that the
defendant acted with the specific intent to kill. Commonwealth v. Cousar, 928
A.2d I 025, I 032 (Pa. 2007). Additionally, the Pennsylvania Supreme Court has,
on numerous occasions, reiterated that a specific intent to kill may be proven by
circumstantial evidence, and may therefore be inferred from the defendant's use of
a weapon on a vital part of the victims body. See Commonwealth v. Cousar;
Commonwealth v. Dowling, 883 A.2d 570 (Pa. 2005); Commonwealth v.
Williams, 854 A.2d 440 (Pa. 2004).
In order to convict a defendant of conspiracy, the trier of fact must find that
(I) the defendant intended to commit or aid in the commission of the criminal act;
(2) the defendant entered into an agreement with another to engage in the crime;
and (3) the defendant or one or more of the other co-conspirators committed an
overt act in furtherance of the agreed upon crime. Each member of a conspiracy to
52
commit homicide can be convicted of first- degree murder, regardless of who
inflicted the fatal wound or who fired the fatal shot. Commonwealth v. Smith,
985 A.2d 886, 897 (Pa. 2009).10. See also Commonwealth v. Patterson, 91 A.3d 55(Pa. 2014).
Moreover, flight, along with other circumstantial evidence, may support an
inference of a criminal conspiracy Commonwealth v. Devine, 26 A.3d 1139, 1147
(Pa. Super. 2011) citing Commonwealth v. Marguez, 980 A.2d 145, 150 (Pa.
Super. 2009) (en bane) appeal denied, 987 A.2d 160 (2009).
Additionally, a defendant may be found guilty of first degree murder as an
accomplice. In this context the Commonwealth must prove beyond a reasonable
doubt that the defendant independently possessed the requisite specific intent to
kill. The specific intent to kill cannot be proven by evidence of intent to kill
possessed by the defendant's accomplice or co-conspirator. Commonwealth v.
Koehler, 36 A.3d 121, 153-154 (Pa. 2012) citing Commonwealth v. Huffman, 638
A.2d 961 (Pa. 1994).
The factual summary of the testimony and evidence in this case was
undertaken not only to provide context for a consideration of the allegations of
error regarding this court's refusal to instruct the jury on certain affirmative
10
The holding In Smith is Identical to that reached by the Pennsylvania supreme Court In Commonwealth v.
Boxley. 838 A.2d 608 (Pa. 2003) that all co-conspirators to first-degree murder can be found guilty regardless of
who actually inflicted the wound resulting In death.
53
defenses but also to provide the reader of this opinion with more than a cursory
understanding of the record.
Appellant's reference to a fragment of testimony from one witness, the
defendant, in support of an argument that the evidence is insufficient not only fails
to satisfy the requirements for this assertion, it stands the applicable law on its
head.
Appellant counsel's reliance on nine pages of the defendant's testimony
during direct examination blatantly ignores the testimony of the defendant's
mother and two daughters, the later of whom the defendant confided in and
confessed her guilt, as well as that of Margaret Moran. It additionally ignores the
defendant's statements to the Pennsylvania State Police on the evening of her
capture. This testimony has been summarized and will not be repeated.
The members of the jury were obviously free to conclude that the nine pages
of testimony referenced by appellate counsel lacked plausibility. Indeed, the
testimony concerning what occurred as Roche and Crawford watched Boondock
Saints and eventually left was consistent. James Roche repeatedly expressed his
intent to kill Barney Evans and Crawford suggested they should kill Jeffrey Evans.
The jury was free to disregard testimony that Crawford's suggestion in this regard
was merely sarcastic.
The evidence collected at the scene clearly established the presence of two
weapons, one used by James Roche and one typically used by the defendant.
54
Holly Crawford called her daughter Tristin who she had not seen for two
years-for what purpose? The fact-finder could reasonably conclude it was done
with the express purpose of telling her daughter about her participation in the
.
cnmes.
The summarized evidence, including that of the defendant's cellmate,
Margaret Moran, established the defendant used Barney Evans to obtain money
and drugs. The jury was certainly free to conclude that Holly Crawford was not
only manipulative and cunning but that she was clearly capable of murder and
acted as an accomplice or principal in the killing of both victims.
Crawford categorically denied making certain statements to Trooper
Polishan, such as acting as a· decoy or duck on the porch, and advised the jury she
only repeated what the state police told her. Recall that she initially denied
knowing Barney Evans or having any knowledge of what occurred that evening.
In this context, again, the jury could conclude that the defendant's variations or
versions of what occurred related by Trooper Polishan implicated her in the
murders.
Additionally, her attempt to go to Philadelphia and then hide in the woods
with Roche, subsequent to the killings, was also evidence of her agreement to
participate with Roche in these murders.
It is also interesting to note that Margaret Moran's testimony, during the
Commonwealth's case in chief, foreshadowed Crawford's testimony regarding her
SS
plan, hatched after the killings, to testify she went to the Evans residence to
retrieve stolen Klonopin. Indeed, once the jury found Margaret Moran credible
they could conclude that Crawford repeatedly communicated with a man, who she
was purportedly afraid of, about potential defenses to these charges. The jury
could have additionally concluded that Crawford understood and, in fact, instigated
an argument with Roche about Barney to make Roche angry and jealous. The jury
could have also concluded that Crawford planned to kill Barney, since that is what
Crawford told Moran. The jury could have additionally concluded that items were
taken from the Evans home to make it look like a robbery. The jury cou1dhave
additionally concluded that Crawford herself shot Jeffrey Evans. The jury could
have additionally concluded that Crawford and Roche planned to go to
Philadelphia to sell the guns. The jury could have additionally concluded that
Crawford's testimony about Barney Evans appearing with the handgun and a
holster and threatening Roche was concocted after the murders in an attempt to
fashion a self-defense theory.
Having presided in this matter it is obvious the jury resolved the issue of
credibility in favor of the Commonwealth and against the defendant, who assumed
the stand and although acknowledging traveling to and being present at the murder
scene, denied killing or helping to kill anyone.
56
SUPPRESSION
Appellant contends the court committed an error of law or abused its
discretion in denying a previously filed motion to suppress.
On March 20, 2015, after a hearing conducted on February 26, 2015 this
court issued a twenty-six (26) page memorandum addressing omnibus motions
filed by both Holly Crawford and James Roche.
This memorandum discusses in detail the reasons for denying defendants
motion to suppress statements. It is appended to this opinion as court, s attachment
1. No further discussion is necessary or required.
END OF OPINION
ORDER ATTACHED AS PAGE 58
57
Circulated 11/28/2016 11:10 AM
COMIVIONWEALTH OF PENNSYLVANIA IN THE COURT OF COMlVION PLEAS
Vs. OF LUZERNE COUNTY
-CRIMINAL-
JAMES EDWARD ROCHE, : NO. 2430 OF 2014
-----------------------------------------------------------------------------------------------------------
COMlVIONWEALTH OF PENNSYLVANIA: IN THE COURT OF COMMON PLEAS
Vs. OF LUZERNE COUNTY
~CRIMINAL-
I
HOLLY ANN CRAWFORD, : NO. 243.1 OF 2014r ' ·
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:e [3.3\..ND NOW, this 2Jiday .of March, 2015 upon consideration oi both
Defendants Omnibus Pretrial Motions and a Suppression Hearing conducted
on February 26, 2015, IT IS HEREBY ORDERED AND DECREED AS
FOLLOWS:
1. Defendant Roche's Motion to Suppress statements is
. : ( .
DENIED and DISMISSED for the reasons set f.orth· : · · ·
in the attached memorandum;
J 2. Defendant Crawford's Motion to Suppress statements
is DENIED and DISMISSED for the reasons set forth
in the attached memorandum .
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FRl, A. PIERANTONI, J.
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Copies:
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Mary Phillips, Esquire
District Attorney's Office
Luzerne County Courthouse
200 N. River Street , I
Wilkes-Barre, PA 18711
Jonathan Blum, Esquire
1208 Wyoming Avenue
Forty Fort, PA 18704
Paul Galante, Esquire
39 Public Square
Suite 1000
Wilkes-Barre, PA 18702
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COMMONWEALTH OF PENNSYLVANIA: IN THE COURT OF COMMON PLEAS
Vs. OF LUZERNE COUNTY
-CRIMINAL·
JAMES EDWARD ROCHE, : NO. 2430 OF 2014
COMMONWEAL TH OF PENNSYLVANIA : IN THE COURT OF COl\rlMON PLEAS
Vs. OF LUZERNE COUNTY
-CRilVIINAL-
HOLLY ANN CRAWFORD, : NO. 2431 OF 2014
PA. R. CRIM. P. 581 (I) MEMORANDUM
j"
Although the cases against the defendants in the above captioned matters
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g na•re ofiffi.e charges and legal issues raised in their respective omnibus motions we
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ddel)dant,-.where appropriate.
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On December 2, 2014 counsel for defendant Crawford submitted an omnibus
pretrial motion which included a motion to suppress statements allegedly made by
the defendant on April 23, 2014. On February 24, 2015, counsel for defendant
Roche submitted an omnibus pretrial motion which similarly included a motion to
1
--.
suppress alleged statements made on April 23, 2013. On February 18, 2015 the
Commonwealth submitted a brief in opposition to defendant Crawford's motion. A
hearing on both motions was scheduled for and conducted on February 26, 2015.
By way of additional procedural history we observe the Commonwealth filed
an information against defendant Roche on August 15, 2014 setting forth two counts
of criminal homicide. The alleged victims are Ronald "Barney" Evans and Jeffrey
Evans. A criminal information was issued on the same date against defendant
Crawford alleging two counts of criminal homicide against the same victims. These
offenses have as their genesis the alleged shooting of Ronald and Jeffrey Evans on
April 21, 2014 at their residence located at 71 Sunset Lake Road, Hunlock
Township, Luzerne County, Pennsylvania.
We also note that on February 26, 2015, prior to receiving testimony
concerning the aforementioned statements, this Court disposed of the remaining
issues in both omnibus motions.
With regard to the change of venue/venire request, submitted by defendant
Crawford, it was agreed by counsel for the respective parties that the defendant
would submit no evidence in this regard, rather a change of venue or venire would
be considered only if it became evident a jury could not be selected during the voir
dire process.
2
Both defendants requested individual voir dire. The Trial Judge observed
that individual voir dire is not required in a case where the Commonwealth does not
seek the death penalty. Voir dire will be conducted in accordance with the
applicable rules of criminal procedure. The Court will ·address the prospective
panel and ask general questions which may be supplemented by counsel. At the
conclusion of the questioning an individual response or responses may be fully
explored at side bar.
The Trial Judge further directed that respective counsel meet and review
photographs which the Commonwealth seeks to introduce during trial. If an
agreement cannot be reached regarding the photographs an additional pretrial will
be conducted at which time the court will make a determination after hearing
argument.
Additionally considered was the Commonwealth's request to introduce
certain convictions of defendant Crawford in the nature of crimen falsi. The
Commonwealth represented the defendant has two qualifying convictions pursuant
to Pa. R.Crim. P. 609, l.e. burglary and robbery. This Court made an initial
determination that the represented convictions would satisfy the aforementioned
rule should the defendant take the stand, however, this determination could be
revisited at trial.
3
.-...
The Trial Judge also considered and denied the Commonwealth's request,
pursuant to Pa.R.E. 404(b), to have the warrant issued for the defendant's failure to
appear at a D.U.I. sentencing introduced during its case in chief.
FACTUAL CONCLUSIONS
Holly Crawford Statement
Trooper Stephen Polishan was called by the Commonwealth and stated lie
has been a member of the Pennsylvania State Police since 1998. Trooper Polishan
has conducted hundreds of investigations where he has an opportunity to see an
individual who is under the influence of alcohol or a controlled substance. Trooper
Polishan is currently assigned to the criminal investigation assessment unit at
Troop "P" Wyoming.
On April 23, 2014 Trooper Polishan was directed to a wooded area in the
vicinity of rear 71/75 Dobson Road in Hunlock Township. Trooper Polishan was
advised that two individuals, armed with rifles, were in the woods and were suspects
in a double homicide.
The witness stated he arrived in the aforementioned area between 1:00 and
2:00 p.m. on April 23rd. A large law enforcement contingent was present and
attempting to locate and take Holly Crawford and James Roche into custody.
Trooper Polishan indicated Holly Crawford was taken into custody, but not
immediately transported to the Shickshinny barracks for questioning because of the
4
-.
perimeter which had been set up, the need to summon a transport vehicle and
secure the presence of a female trooper.
Trooper Polishan was assigned to conduct an interview of Holly Crawford.
Holly Crawford and James Roche were transported from the scene after which the
witness finished certain assignments and proceeded to the Shickshinny barracks.
Trooper Polishan interviewed Holly Crawford, who was present in what was
described as an interview room approximately 10 feet by 10 feet containing a table,
chairs, bench, two-way mirror and a door. The defendant was not in handcuffs.
Corporal Stephen Turinski was also assigned to conduct the interview of Holly
Crawford.
Upon encountering the defendant Trooper Polishan explained who he was
and why he wished to speak with her. Prior to conducting any questioning Trooper
Polishan and Corporal Turinski utilized a "Pennsylvania State Police Rights
Warning and Waiver Form" identified and admitted during the suppression
hearing as Commonwealth's exhibit #1. The form was executed at 6:04 p.m, on
April 23, 2014. The witness stated the defendant was advised of her constitutional
rights by reading the form aloud and asking whether the defendant understood the
rights as read. The defendant stated she understood the rights and further agreed
to speak with the Pennsylvania State Police. Commonwealth's exhibit #1 contains
the signature of Holly Crawford as well as that of Trooper Polishan and Corporal
Turinski as witnesses.
s
The witness indicated the defendant asked no questions regarding her rights
or waiver and at no time indicated she did not understand same.
The Assistant District Attorney asked Trooper Polishan to describe the
defendant's demeanor. Trooper Polishan stated he asked Holly Crawford whether
she ingested any alcohol and her response was not "in two days". The trooper
additionally asked whether the defendant ingested any controlled substance,
specifically heroin, and the defendant replied she had been "clean for two years".
The witness acknowledged that Holly Crawford appeared physically ill and
that her eyes and nose were red. The defendant stated she was sick and Trooper
Polishan asked "dope sick" to which the defendant responded she had flu like
symptoms.
Trooper Polishan described defendant's speech as normal and further
indicated she did not appear to be under the influence of alcohol or a controlled
substance.
During the course of the interview the defendant was afforded the
opportunity to use the bathroom. The witness also stated numerous cigarette
breaks were taken during the interview. Additionally, the defendant was offered
pizza and a soft drink.
During breaks in the interview process Trooper Polishan and Corporal
Turinski were consulting other investigators regarding information discovered.
6
. ...,_,
Trooper Pollshan described the actual interview portion of his contact with
Holly Crawford as between one and one half hours.
Trooper Polishan further stated that Holly Crawford was "cooperative"
during the course of the interview. Trooper Polishan additionally indicated that J.VIs.
Crawford was oriented to "date and time". Ms. Crawford's answers to questions
posed was described as "appropriate".
The interview consisted of two parts, non recorded and recorded.
The defendant initially denied knowing either of the two victims.
The Commonwealth next introduced Commonwealth's exhibit #2 a compact
disc of an audio recording of the statement outlined in a transcript, identified as
Commonwealth's exhibit #3.
The Commonwealth played the aforementioned interview which began at
10:01 p.m, and concluded at 10:26 p.m, on April 23, 2014. The transcript of the
tape consists of 18 pages. The audio statement contains a preface by Trooper
Polishan which references the aforementioned Pennsylvania State Police Rights
Warning Waiver form previously executed and further represents the defendant's
preference to give a verbal statement of what she represents as "a truthful and
accurate account ofwhat happened". Further, Ms. Crawford acknowledges that the
statement about to be recorded is "voluntary,' and that she was previously advised
7
of her rights and waived same. Ms. Crawford further acknowledges her signature
affixed to the rights and waiver form and that she understood the form.
Ms. Crawford spells her first and last name for the investigators and states
that her date of birth is "11-15-74''.
The interview proceeds in question and answer fashion. The tone exhibited
by the Pennsylvania State Police is at all times conversational. Ms. Crawford's
answers to the questions posed are responsive and appropriate.
At approximately eight minutes into the audio taped portion of the interview,
at 10:09 p.m., Ms. Crawford's asks'' ... could we pause for one second". The tape is
then stopped and it is represented that approximately five minutes later the tape is
restarted. At this point Trooper Polishan states the defendant had a question
concerning her medication and indicates that prior to the interview troopers were
dispatched to 71 Dobson Road, in the area where Holly Crawford was taken into
custody, to determine if medication, which may have fell out of her pocket or was
left there inadvertently, could be secured. The medication inquired about is
identified as heart medication and gallbladder medication. The interview then
continues.
Ms. Crawford outlines the circumstances leading to the shootings. In
describing her position in the residence during the shooting Ms. Crawford states
"yeah that's where I was, Oh, my god I'm getting dizzy", Trooper Polishan asks if
8
. ·.,..,
she wished to take a second and Ms. Crawford responds "no keep going>'.
Questions and answers then continue until the conclusion of the interview. Ms.
Crawford affirmitavly represents that she is being truthful and honest with the
troopers and acknowledges that no threats 01· promises have been made to her. In
response to a question regarding whether she wants to add or subtract anything
from the statement Ms. Crawford states "No".
Subsequent to playing the audio Trooper Polishan advised the Court the state
police were not able to secure the medication. Additionally, Trooper Polishan stated
that an ambulance was summoned to the barracks even though the defendant did
not request to be taken to the hospital. The defendant was transported to the
Geisinger Hospital in Plains Township and was released in "less than one hour".
Ms. Crawford was thereafter transported for preliminary arraignment which was
conducted before Magistrate District Judge John Hasay in Shickshinny.
During cross examination Trooper Polishan indicated there were multiple
troopers and law enforcement vehicles in the area in which the two defendants were
taken into custody. The witness stated bis first observation of Holly Crawford was
when she was in custody. Trooper Polishan stated that although the defendant may
have been handcuffed as she was led into the interview room, she was not in
restraints during the interview.
Both Trooper Polishan and Corporal Turinski were in plain clothes and
armed.
9
Although the trooper could not recall the precise time that Ms. Crawford was
taken into custody he reiterated that the Miranda warnings were administered at
6:04 p.m. on April 23, 2014. Trooper Polishan stated he was unaware of any
Miranda warnings administered to Holly Crawford prior to those described.
Trooper Polishan stated that the defendant was not left alone during the
interview process.
The witness acknowledged that during the process Ms. Crawford appeared to
be tired and possibly ill and that she was at times "laying on the bench".
Trooper Polishan stated he did not "yell" at Ms. Crawford and further, in his
judgment, Ms. Crawford was oriented to time and date.
In response to a question by defense counsel whether Trooper Polishan
possessed any information that Ms. Crawford had been "drinking heavily" the
witness responded he thought Ms. Crawford was sober and did not appear to be
undergoing withdrawal.
During redirect examination Trooper PoJishan stated the defendant was
taken into custody at 3:30 p.m, on April 23, 2014. Trooper Pollshan reiterated that
the Miranda warnings were initially provided pursuant to the rights waiver form
and then referenced again at the beginning of the audio taped interview.
The Commonwealth offered no other witnesses or evidence.
10
_ ....."'\,
·-
Holly Crawford assumed the stand and stated she did not know when she was
apprehended. She was sleeping and "picked up by the hair" in a wooded area
during the afternoon hours. She stated she had been drinking vodka and was
dragged out of the woods by the state police. She indicated, at one point, she could
not walk and collapsed and two troopers held her by each arm and dragged her.
Ms. Crawford further testified that she has a heart condition and prescribed
medication for resulting seizures. She further related she has a vest with a device
that can be employed if her heart stops.
This witness further indicated she was "very drunk" on the day she was
apprehended and was "scared" for her health. Ms. Crawford stated she was "laying
down" at times while at the Pennsylvania State Police barracks and further she was
questioned for a "long period of time";
With regard to the audio statement provided Ms. Crawford indicated the
answers were provided by the state police and then recorded.
Concerning the waiver of her constitutional rights, Ms, Crawford indicated it
is "something she heard before" although she was not sure she understood. She
described herself as "disconnected" and not clear headed. Ms. Crawford indicated
she was "drunk" and that the alcohol was topped with Klonopin.
On cross examination she professed a lack of memory concerning aspects of
the interview. The witness further stated she did not recall if she mentioned the
11
;.~,
ingestion of Klonopin to the troopers. Ms, Crawford further stated she did not tell
the troopers about the vest with the device to assist her heart. The witness testified
she had a "scared feeling" that her heart would stop.
Upon further cross examination the witness acknowledged she was advised of
her Miranda warnings on the day in question and further she was familiar with the
criminal justice system as a result of numerous arrests in the past.
To the extent necessary for our present determination we resolve the issue of
credibility in favor of Trooper Polishan and against Ms. Crawford.
James Roche Statement
Corporal Christopher King initially indicated he has been employed by the
Pennsylvania State Police for sixteen years. Corporal King stated, in the course of
his career, he has observed people under the influence of alcohol and or controlled
substances on numerous occasions.
On April 23, 2014 Corporal King was at the Pennsylvania State Police
barracks in Shickshinny and assigned to interview, along with Trooper Robert
Franchella, James Roche. Corporal King initially encountered Mr. Roche between
4:00 and 5:00 p.m, Defendant Roche was placed in a conference room containing a
large table. Mr. Roche was not restrained during the course of the interview.
Corporal King initially advised Mr. Roche that the Pennsylvania State Police
were conducting a death investigation regarding Ronald and Jeffrey Evans.
12
At 5:56 p.m, on April 23, 2014 Corporal King, utilizing a "Pennsylvania State
Police Rights Warning and Waiver Form", identified and introduced as
Commonwealth's exhibit #1, advised the defendant of his Miranda warnings. The
defendant thereafter signed the form acknowledging his constitutional warnings and
agreed to speak with the investigators. Corporal King indicated the defendant had
no questions regarding the rights and waiver form and at no time indicated a lack of
understanding regarding his lVliranda rights.
Corporal King described the defendant's demeanor as calm and cooperative.
Mr. Roche advised Corporal King that he had been drinking vodka on the day the
statement was given. Corporal King asked Mr. Roche if he had ingested any
controlled substances and the defendant responded he had not.
Corporal King described the defendants speech as normal and further that
his eyes appeared slightly bloodshot, but the defendant did not appear ill. Corporal
King further testified that Mr. Roche did not appear to be under the influence of
alcohol or a controlled substance.
Corporal King further advised the court that during the course of the
interview Mr. Roche was provided bathroom breaks and had an opportunity to eat
pizza and drink soda.
Corporal King reiterated that Mr, Roche displayed no outward signs of
intoxication.
13
.·-...,
The witness advised the court that the interview with Mr. Roche lasted
approximately two to two and a half hours, which includes the audio portion of the
statement. Corporal King further stated the defendant was oriented to both time
and date.
The Commonwealth next identified and introduced, Commonwealth's exhibit
#2, a disc containing the audio portion of the aforementioned interview. The Court
was also provided a transcript of the interview which consists of 64 pages.
The audio portion of the interview begins at 8:04 p.m, and concludes at 10:04
p.m. on April 23, 2014.
At the inception of the audio interview Mr. Roche acknowledges both his
consent to the recording and the reading of bis Miranda warnings. The warnings
are then reiterated by Corporal King with the defendant acknowledging an
understanding of each separate representation.
The interview was conducted in conversational tone and the defendant's
answers to questions posed are responsive and appropriate.
During the course of the interview the defendant acknowledges going to the
residence with the express purpose of assaulting Ronald "Barney" Evans and,
thereafter, as events unfolded he shot Ronald and Jeffrey Evans.
14
Subsequent to the conclusion of the audio statement Corporal King advised
the Court that Mr. Roche was transported for the purpose of preliminary
arraignment before Magisterlal District Judge Hasay.
During cross examination Corporal King indicat.ed his first contact with the
defendant was at approximately 5:50 p.m .. Corporal King indicated the only people
in the interview room were himself, Trooper Franchella and the defendant.
Corporal King acknowledged that the defendant had bloodshot eyes,
however, he was not slurring his words nor did he appear to be under the influence
of alcohol. When asked whether the defendant exhibited au odor of alcohol, the
witness responded the defendant exhibited several odors, one of which was
described as a minor odor of alcohol.
Upon further cross examination Corporal King stated that during the process
of the interview he was being advised of information learned by other investigators.
Corporal King was never at the wooded area or campsite where James Roche
and Holly Crawford were discovered.
Corporal King further stated that the non recorded portion of the interview
began at approximately 5:55 p.m. and one and one half hours later the taped
portion of the interview began.
15
Corporal King further indicated that during the break in the audio portion of
the statement he advised Mr. Roche he did not believe Mr. Roche's representations
that Holly Crawford was not present at the scene of the' shootings.
In response to further questions, Corporal King stated he did not lie to the
defendant nor did be provide the defendant with "exaggerated facts".
The witness reiterated that be had an opportunity to observe the defendant
walking and described his gait as normal. Corporal King reiterated that Mr. Roche
did not appear drunk or under the influence of alcohol. Rather, Corporal King
stated the defendant appeared normal.
Mr. Roche assumed the stand and initially testified he remembers only "bits
and pieces" of the day he was taken into custody. Mr. Roche stated that on that day
he purchased a half gallon of vodka at the liquor store at 11:00 a.m. He further
indicated the day before he was taken into custody be consumed a fifth or more of
vodka. Mr. Roche testified he drank virtually every day.
Mr. Roche stated he recalled speaking to the Pennsylvania State Police but
that parts of the rights waiver discussion were "foggy". Mr. Roche testified he
wished to speak to the police but "didn't put much thought into it".
The defendant stated that prior to being taken into custody he was "drunk"
and took a handful of Ms. Crawford's heart medication when lie saw the state police
helicopter overhead.
16
On cross examination he testified he consumed a.handful of the pills upon
seeing the Pennsylvania State Police helicopter because he felt terrible and "wanted
to die".
Mr. Roche acknowledged taking a break during the course of the interview.
To the extent necessary for our present termination we resolve the issue of
credibility in favor of Corporal King and against Mr. Roche.
ANALYLITICAL FRAMEWORK
Subsequent to the filing of a motion to suppress evidence, the Commonwealth
bears the burden of going forward at a subsequent hearing establishing that the
challenged evidence was not obtained in violation of a defendant's rights. Pa. R.
Crim. P. 581(H); Commonwealth v. Dixon, 997 A.2d 368 (Pa. Super. 2010).
Statements stemming from a custodial interrogation or interview may not be
used unless a defendant was apprised of his or her right against self incrimination
and right to counsel embodied in Miranda. 1 It is also imperative that a defendant
waive these constitutional rights. This waiver must be the result of a free and
deliberate choice rather than intimidation, coercion, or deception, and the choice
must be made with a full awareness both of the nature of the right being abandoned
and the consequences of the decision to abandon it. Commonwealth v. Watkins, 843
A.2d 1203, 1213 (Pa. 2003), cert. denied 125 SC 450. While Fifth Amendment
1
Miranda v. Arizona, 86 s.ct. 1602 {1966).
17
jurisprudence does not require an explicit waiver of Miranda rights, Pennsylvania
has developed what is described as a "nuanced approach" which requires the
defendant express a manifestation of his or her desire to waive Miranda.
Commonwealth v. Baez, 21 A.3d 1280 (Pa. Super. 2011).
Recently, in Commonwealth v. Bryant, Justice lVIcCaffery, author of the
opinion, instructs that the test for determining the voluntariness, and thus the
admissibility, of an accused's statement is the totality of the circumstances
surrounding the statement. Commonwealth v. Bryant, 67 A.3d 716) 724, 725 (Pa.
2013).2
Bryant further informs the mere fact that there is some passage of time
between when an accused is arrested and when he or she gives an inculpatory
statement does not constitute grounds for suppression. The opinion thereafter sets
forth numerous factors which Pennsylvania jurisprudence considers under a totality
of the circumstances test to determine whether a statement was freely and
voluntarily made. They are:
-The duration and means of interrogation, including whether
questioning was repeated, prolonged, or accompanied by physical
abuse or threats thereof;
-The length of the accused's detention prior to the confession ;-Whether
the accused was advised of his or her constitutional rights;
2
Bryant, references Commonwealth v. Perez, 845 A.2d 779, 787 (Pa. 2004), an opinion in which the Supreme
Court discarded application of the so-called "six-hour rule" established by Commonwealth v. Davenport, 370 A.2d
301 (Pa. 1977) and Commonwealth v. Ducan, 525 A.2d 1177 (Pa. 1987).
18 .
-The attitude exhibited by the police during the interrogation;
-The accused's physical and psychological state, including whether he
or she was injured, ill, drugged, or intoxicated;
-The conditions attendant to detention, including whether the accused
was deprived of food, drink, sleep, or medical attention;
-The age, education and intelligence of the. accused;
-The experience of the accused with law enforcement in the criminal
justice system;
-Any other factors which might serve to drain one's powers of
resistance to suggestion and coercion;
Additionally, when considering alleged impairment our appellate courts have
repeatedly observed the fact that an accused has been drinking does not
automatically invalidate his or her subsequent incriminating statements. Rather,
the test is whether he or she had sufficient mental capacity at the time of giving the
statement to know what he or she was saying and to have voluntarily intended to say
it. Recent imbibing or the existence of a hangover does not make a confession
inadmissible, but goes to the weight to be accorded to it. When evidence of
impairment is present, it is for the suppression court to decide whether the
Commonwealth has established by a preponderance of the evidence that the suspect
nonetheless had sufficient cognitive awareness to understand the Miranda warnings
and to choose to waive these rights. Commonwealth v. Ventura, 975 A. 2d 1128,
1138 (Pa. Super. 2009).
19
.......
'·
In Ventura a law enforcement officer testified he did not observe indications
the defendant was inebriated when he first arrived on the scene, although he smelled
the odor of alcohol and it was apparent the defendant had been drinking. The
officer further testified the defendant did not slur his speech, stagger, stumble or
display other types of behavior which would permit the conclusion he was
intoxicated.
There, Superior Court affirmed the trial court's determination that
Mr.Ventura knowingly waived his Miranda rights, concluding that defendant had
sufficient mental capacity at the time of giving his statement to know what he was
saying. The suppression testimony revealed that Ventura was cognizant of time and
place and had no difficulty walking, did not slur his speech and demonstrated he
was capable of making decisions when he chose not to answer certain questions
because he feared incrimination.
Furthermore, as observed by the Pennsylvania Supreme Court in
Commonwea]th v. Phillistin, 53 A.3d l(Pa. 2012), a determination of whether a
statement or confession is involuntary focuses not upon whether a suspect or
defendant would have given a statement or confessed without the interrogation, but
whether the questioning or interrogation was so manipulative or coercive that it
deprived the defendant of bis or her ability to make a free and unconstrained
decision to provide a statement or confess.
20
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LEGAL CONCLUSIONS
Turning to the instant matter we initially observe it is undisputed that both
Holly Crawford and James Roche were in custody, as that term is understood in
Pennsylvania jurisprudence, when the statements at issue were provided.
Holly Crawford
The suppression record establishes that Holly Crawford was taken into
custody by the Pennsylvania State Police at approximately 3:30 p.m, on April 23t
2014. The record contains no testimony from the members of the state police who
actually located or took Ms. Crawford into custody. Ms. Crawford was transported
to the Pennsylvania State Police Barracks in Shickshinny and questioned by
Trooper Polishan and Corporal Turinski.
At 6:04 p.m., prior to any questioning, Ms. Crawford was advised of her
Miranda warnings utilizing the "Rights Warnings and Waiver Form" described
above. The testimony establishes Ms. Crawford was advised of each of her
constitutional warnings, understood them and agreed to speak to the troopers. This
conclusion is warranted based upon the testimony of Trooper Polishan, our review
of the Rights and Waiver Form and defendant's affixed signature acknowledging
she was advised of her Miranda warnings understood them and further agreed to
speak with law enforcement. It is additionally buttressed by the audio tape
21
. -...
referencing the administration of Miranda warnings and the defendant's
understanding of same.
We will next review the factors articulated in Bryant to determine if the
statement was voluntary.
Ms. Crawford's interrogation began at 6:04 p.m. and concluded at 10:26
p.m .. The duration of the interrogation was therefore 4 hours and 22 minutes. In
this regard we have further examined whether the questioning was repeated. Ms.
Crawford was initially questioned concerning the circumstances of her involvement
in this matter and next agreed to an audio taped statement. The questions were
therefore repeated once. We cannot conclude the questioning was prolonged, based
upon it's previously described length, given the numerous breaks requested and
afforded Ms. Crawford for cigarette smoking, eating, and drinking. Furthermore,
the record is absolutely devoid of any evidence that Ms. Crawford was physically
abused or the subject of threats by law enforcement.
Ms. Crawford was in custody for approximately two and a half hours prior to
the statements.
Ms. Crawford was advised of her constitutional warnings prior to law
enforcement engaging in any interrogation.
The attitude exhibited by the Pennsylvania State.Police during the
questioning was conversational in tone, respectful and accommodating.
22
Ms.Crawford advised the troopers she was and appeared to be physically ill,
although she denied being under the influence of alcohol or controlled substances.
There is nothing about the conditions attendant to the detention which
suggest involuntariness, given that Ms, Crawford was provided numerous breaks,
pizza and a soft drink. Moreover, when she requested that the state police attempt
to find what was described as heart medication they obliged, albeit unsuccessfully.
Ms. Crawford's age in no way suggests the statement was involuntary.
Indeed, the record establishes Ms. Crawford was familiar with law enforcement and
the criminal justice system, having been arrested on previous occasions.
Ms. Crawford advised Trooper Polishan that she had not consumed alcohol
in two days nor a controlled substance in two years. Furthermore, Ms. Crawford
denied being "dope sick" and attributed her feeling ill to flu like symptoms.
Having credited Trooper Polish an 's testimony we accept his observations that
Ms. Crawford's speech was normal and that she did not appear to be under the
influence of alcohol or a controlled substance.
Additionally, we had the opportunity to actually hear Ms. Crawford's voice
during the audio portion of the interview and discerned nothing in her tone or
responses which suggests she lacked an understanding of the questions posed or that
the questioning was so manipulative or coercive that it deprived her of an ability to
make a free and unconstrained determination to provide a statement.
23
-.
Additionally, although not requested by Ms. Crawford, it was decided to
nevertheless summon an ambulance after which she was transported to the
Geisinger facility in Plains Township and released within one hour. The record is
devoid of any evidence or testimony concerning what, if any, medical treatment Ms.
Crawford received or what if any conclusions were reached by medical personnel.
The record does not establish at what time Ms. Crawford's preliminary
arraignment occurred.
Applying the totality of the circumstances test we conclude, in balance, that
the statement provided was voluntary.
James Edward Roche
Employing the criteria set forth in the analytical framework section of this
memorandum and referenced and considered in the context of Ms. Crawford's
statement we conclude, without hesitation, that Mr. Roche was advised of his
Miranda warnings and agreed to be interviewed.
The Pennsylvania State Police Rights, Warning and Waiver Form introduced
as Commonwealth's exhibit #1 and signed by Mr. Roche establishes, within the
context of Corporal King's testimony, that the defendant was fully aware of his
constitutional rights and agreed to waive same. Mr. Roche's awareness and
understanding of the rights outlined in the aforementioned exhibit is reiterated and
24
.-. ..
reinforced at the inception of the audio taped statement of 8:04 p.m., which has been
referenced in the factual findings.
Additionally, we have examined the totality of the circumstances employing
the criteria previously described.
The Pennsylvania State Police began questioning Mr, Roche at 5:56 p.m, on
April 23, 2014. The questioning concluded at 10:30 p.m. The length of the
questioning is therefore four hours and forty minutes.
The questioning was repeated in the same sense as was Ms. Crawford's. Mr.
Roche initially spoke with law enforcement and then agreed to provide an audio
taped statement. We cannot conclude that the statement was unduly prolonged,
given the breaks afforded during the questioning.
The record is absolutely devoid of any physical abuse or threats directed at
Mr. Roche.
The record does not establish the time Mr. Roche was taken into custody and
therefore we cannot consider the length of the accused detention prior to the
confession. Furthermore, the record does not establish the time of the defendant's
preliminary arraignment.
As previously indicated Mr. Roche was advised of his constitutional rights.
2.5
_ . ........,,._ .. ......, _
The attitude exhibited by the Pennsylvania State Police during the
interrogation was conversational and at all times appropriate.
There is nothing in the record regarding the accused physical or
psychological state which permits or suggests the conclusion that the statement was
involuntary. Indeed, the testimony and audio taped statement establish the
opposite, that is, that Mr. Roche was calm, cooperative .and responsive.
While Corporal King acknowledged that the defendant's eyes were slightly
bloodshot, the testimony establishes that be was not under the influence of alcohol
01· controlled substances and that he was afforded a bathroom break and ate pizza
and drank soda. Furthermore, the record establishes Mr. Roche displayed no
outward signs of intoxication.
There is nothing in the record regarding the education or intelligence of the
accused which would suggest he was incapable of making a voluntary statement.
Indeed, bis tone, demeanor and choice of language during the interview suggest the
conclusion of voluntariness.
Examining the totality of the circumstances, we conclude the Commonwealth
has sufficiently established Mr. Roche's statement was voluntary.
END OF MEMORANDUM
26