Com. v. Sanutti-Spencer, M.

J-A12022-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

:

v. :

:

MARIA I. SANUTTI-SPENCER :

:

Appellant : No. 1046 MDA 2023

Appeal from the PCRA Order Entered June 29, 2023

In the Court of Common Pleas of Columbia County

Criminal Division at No(s): CP-19-CR-0000754-2014

BEFORE: PANELLA, P.J.E., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY KING, J.: FILED: OCTOBER 16, 2024

Appellant, Maria I. Sanutti-Spencer, appeals from the order entered in

the Columbia County Court of Common Pleas, which denied her first petition

filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

This Court has previously set forth the relevant facts and some of the

procedural history of this case as follows:

Appellant married Frank Spencer (“the Victim”) in February

1997. Between 2006 and 2012, the Victim reported

approximately twenty-five (25) to thirty-five (35) domestic

incidents to the Hemlock Township police department.

Police records confirm that the Victim reported that

Appellant had threatened to kill him on “numerous

occasions.” Following one such occasion, which occurred in

October 2006, the Victim filed for divorce.

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* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541-9546.

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On May 15, 2007, the Victim reported that Appellant

threatened that her Father, Anthony Rocco Franklin (“her

Father”), would kill him. Contemporaneous with this report,

other testimony established that Appellant sought help from

a former coworker, Lee Mix, to secure an early parole for

her Father[, as Mix worked for the parole board at that

time]. When Mix and Appellant were coworkers in 2005,

Appellant threatened to harm the Victim. … Appellant also

implied that her Father was in the Mafia. Mix informed

Appellant that she could not help.

In March 2009, her Father submitted a home plan to the

parole board, in which he proposed to live at a residence

jointly owned by Appellant and the Victim (“Fairview Drive

Residence”). Parole agent James Curry conducted the pre-

parole investigation. When Curry investigated the proposed

home plan, the Victim told Curry that he did not want her

Father living at the Fairview Drive Residence because

Appellant and the Victim were getting a divorce. Her

Father’s proposed home plan was denied.

In September 2009, her Father’s home plan was

resubmitted, proposing again to live at the jointly owned

residence. Appellant indicated to the parole board

investigator that she was divorced and the homeowner. Her

Father’s home plan was approved. However, at the time,

the divorce was not final; Appellant and the Victim were

subject to an interim divorce order, giving each party the

right to live at the Fairview Drive Residence when it was

their turn to have custody of the kids.

Between January 2010 and September 2011, police

responded to and/or investigated approximately sixteen

incidents specifically involving the Victim and Appellant at

the Fairview Drive Residence. Appellant threatened to burn

down the Victim’s new house and threatened to burn down

the house of the Victim’s girlfriend, Julie Dent. … In January

2010, a fire occurred at the Victim’s home. In August 2010,

another fire burned the house of the Victim’s girlfriend to

the ground.

The evidence presented at trial suggested that the Victim

lived in absolute fear of Appellant and her Father. The

Victim was very worried that her Father was capable of

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killing him and that they were threatening to kill him. The

Victim “was absolutely in fear to the point where he was

changing his habits so he wouldn’t be going to the bank on

the same day.” Appellant expressed anger and hostility

toward the Victim following divorce hearings, often

concerning custody of their children. According to one

witness, “on numerous occasions, [Appellant] would fly in

the driveway and get out and there would be a screaming

match that would ensue.”

On June 8, 2012, a divorce decree was issued dissolving the

marriage and designating the Victim as homeowner of the

Fairview Drive Residence. A police officer helped the Victim

compose a no-trespassing letter to Appellant (dated

6/27/2012), telling Appellant to stay off his property except

when exchanging custody of their children in the driveway.

On June 30, 2012, news of the divorce appeared in the local

paper. On the evening of June 30, 2012, Appellant called

the Victim’s cousin and warned him that if the Victim’s

mother moved into the Fairview Drive Residence, Appellant

would burn it to the ground; Appellant threatened that “that

house will be her last.... And she can join [the Victim].” The

Victim’s cousin immediately reported Appellant’s threats to

the police.

On July 3, 2012, the Victim’s body was discovered shot dead

in the foyer of the Fairview Drive Residence. The evidence

established that the Victim was shot from a distance as he

was entering the house and that no one heard from the

Victim between July 1-2, 2012. The Victim was killed by two

rapidly fatal gunshot wounds: one to the head and one to

the left arm. The parties stipulated that the bullet recovered

from the Victim’s torso was from a .30 caliber class

discharged rifle and the bullet recovered from his head/neck

was fired from a .38, .357 caliber, or nine-millimeter class

handgun. Blood splatter was found on the interior of the

front-door threshold, “indicative of the door being opened

when the bloodletting event occurred.” Officer Sergeant

Brian J. Dropinski found two shell casings near a tree with a

Y shape in front of the house. Officer Dropinski testified that

the tree offered support for the firing position and was within

firing range of the front door. …

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Corporal David Andreuzzi found yellow, cleaning gloves at

the scene, one on the kitchen floor and one in the kitchen

sink. A forensic expert testified that DNA samples recovered

from the gloves matched the DNA profile of Appellant.

On July 23, 2014, a grand jury issued an indictment, finding

probable cause to believe that Appellant and her Father

engaged in a series of crimes, culminating in the Victim’s

murder. On July 28, 2014, Appellant was arrested and

charged with [criminal homicide and related offenses]. On

October 30, 2014, Appellant filed a motion for writ of habeas

corpus. Following a hearing, Appellant’s motion was denied.

Appellant also filed an omnibus pre-trial motion, including a

motion to preclude hearsay testimony. Following a hearing,

the omnibus motion was denied, except the motion to

preclude hearsay testimony was denied without prejudice to

Appellant’s ability to file motions in limine six weeks before

jury selection.

In September 2015, the Commonwealth filed a motion to

preclude irrelevant evidence related to Appellant’s health as

well as the Victim’s alleged drug abuse and violent

propensities. Upon consideration of Appellant’s response

and following a hearing, the court issued a pre-trial order

precluding Appellant from introducing evidence of the

Victim’s alleged drug abuse and violent propensities. In

addition, the court denied Appellant’s motions in limine.

Following a two-week jury trial, the jury returned a guilty

verdict against Appellant … on November 20, 2015[, for

numerous crimes including criminal homicide, criminal

solicitation to commit homicide, conspiracy, and related

offenses]. On December 18, 2015, Appellant was sentenced

[to life imprisonment plus an aggregate term of 250 to 696

months’ imprisonment]. …

Commonwealth v. Sanutti-Spencer, No. 782 MDA 2016, unpublished

memorandum at 2-7 (Pa.Super. filed Jan. 11, 2018) (internal citations and

footnotes omitted), cert. denied, ___ U.S. ___, 139 S.Ct. 654, 202 L.Ed.2d

502 (2018). This Court affirmed Appellant’s judgment of sentence on January

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11, 2018, the Pennsylvania Supreme Court denied allowance of appeal on

June 26, 2018, and the United States Supreme Court denied Appellant’s

petition for writ of certiorari on December 10, 2018. See id.

On May 20, 2019, Appellant timely filed a pro se PCRA petition. The

court subsequently appointed PCRA counsel, who filed an amended PCRA

petition on Appellant’s behalf. The court conducted PCRA hearings on

September 27, 2021, September 28, 2021, and October 20, 2021. By order

dated June 28, 2023, and filed the next day, the court denied PCRA relief.

Appellant timely filed a notice of appeal on July 26, 2023. On July 31, 2023,

the court ordered Appellant to file a concise statement of errors complained

of on appeal per Pa.R.A.P. 1925(b), which Appellant filed on August 21, 2023.

Appellant raises four issues for our review:

Was trial counsel ineffective for (1) failing to call Anthony

Sanutti at trial and (2) did trial counsel render ineffective

assistance for not calling Timothy Wilhelm as an expert in

the Spencer home arson, and not requesting a Frye[2]

hearing to determine whether Detective Dennis Woodring’s

methodology was generally accepted in the field of fire

investigations, specifically the concept of expectation bias?

Was trial counsel ineffective for not pursuing a timely

recitation of the “no adverse inference” jury instruction and

was appellate counsel ineffective for not pursuing a claim

based upon the untimely “no adverse inference” jury

instruction from the court?

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2 Frye v. United States, 293 F. 1013 (D.C.Cir. 1923). See also

Commonwealth v. Chmiel, 662 Pa. 672, 240 A.3d 564 (2020) (explaining

that Pennsylvania adheres to Frye screening test, which bars novel scientific

evidence from courtroom until underlying methodology has achieved general

acceptance in relevant scientific community).

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Was trial counsel ineffective for his lack of preparation for

the pretrial motions, most notably, the admission of

[Victim’s] statements under the state of mind exception and

present sense impression by not citing any applicable case

law to supplement his filings and to rebut the filings by the

Commonwealth?

Was trial counsel ineffective for not objecting to the

admission of [Victim’s] state of mind [and allowing] certain

testimony into the record that provided the majority of the

indicia of guilt, including testimony from Paul Siciliano, Leo

Yodock, Corey Robert Fish, James Curry, Sergeant Scott

Traugh, Daniel May, George Hettler, Ron Romig, and Derk

Reed?

(Appellant’s Brief at 2-3).

“Our standard of review of [an] order granting or denying relief under

the PCRA calls upon us to determine whether the determination of the PCRA

court is supported by the evidence of record and is free of legal error.”

Commonwealth v. Parker, 249 A.3d 590, 594 (Pa.Super. 2021) (quoting

Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa.Super. 2013)). “The

PCRA court’s factual findings are binding if the record supports them, and we

review the court’s legal conclusions de novo.” Commonwealth v. Prater,

256 A.3d 1274, 1282 (Pa.Super. 2021), appeal denied, ___ Pa. ___, 268 A.3d

386 (2021). Further, where the PCRA court makes credibility determinations,

we are bound by them if they are supported by the record. Commonwealth

v. Mojica, 242 A.3d 949 (Pa.Super. 2020), appeal denied, 666 Pa. 290, 252

A.3d 595 (2021).

“Counsel is presumed to have rendered effective assistance.”

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Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal

denied, 663 Pa. 418, 242 A.3d 908 (2020).

[T]o establish a claim of ineffective assistance of counsel, a

defendant must show, by a preponderance of the evidence,

ineffective assistance of counsel which, in the circumstances

of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence

could have taken place. The burden is on the defendant to

prove all three of the following prongs: (1) the underlying

claim is of arguable merit; (2) that counsel had no

reasonable strategic basis for his or her action or inaction;

and (3) but for the errors and omissions of counsel, there is

a reasonable probability that the outcome of the

proceedings would have been different.

Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019),

appeal denied, 654 Pa. 568, 216 A.3d 1029 (2019) (internal citations and

quotation marks omitted).

After a thorough review of the record, the briefs of the parties, and the

applicable law, we conclude that Appellant’s issues merit no relief for the

reasons stated in the PCRA court’s well-reasoned opinion. (See PCRA Court

Opinion, filed 6/29/23, at unnumbered pp. 11-21) (finding: (issue 1)

Anthony Sanutti, Jr. (“Anthony”) is Appellant’s brother; following Victim’s

murder, Anthony allegedly had conversation with his father, Mr. Franklin,

wherein Mr. Franklin admitted murdering Victim; Mr. Franklin also did not

indicate that Appellant was involved; at PCRA hearing, trial counsel adamantly

denied being told about Anthony’s conversation with Mr. Franklin; PCRA court

found trial counsel credible; PCRA court further did not believe that Anthony

would not have gone to police or to Appellant if Mr. Franklin had stated that

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Appellant was not involved in murder;3 as trial counsel was not informed of

Mr. Franklin’s alleged confession, counsel was not ineffective for failing to call

Anthony as witness;4 regarding Appellant’s claim that trial counsel was

ineffective for failing to call Mr. Wilhelm, police charged Appellant with arson

of Victim’s home; in preparation for her trial, Appellant solicited inspection by

Mr. Wilhelm; Mr. Wilhelm opined that law enforcement’s conclusion that fire

was arson was flawed; however, Appellant’s son told trial counsel that

Appellant had admitted her involvement in arson; thus, trial counsel had

ethical concerns about calling Mr. Wilhelm to establish falsehood;

nevertheless, trial counsel used other evidence to discredit law enforcement’s

report regarding arson by relying on other opinions that had determined fire

was of undetermined origin;5 trial counsel had reasonable strategic basis for

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3 Although Anthony initially testified at the PCRA hearing that his father said

Appellant was not involved in Victim’s murder, on cross-examination, Anthony

admitted that his father did not expressly state that Appellant was not

involved; rather, his father simply did not mention any involvement by

Appellant when he confessed that he had killed Victim, and Anthony inferred

from the conversation that Appellant was not involved. (See N.T. PCRA

Hearing, 9/27/21, at 85-87).

4 See Commonwealth v. Small, 602 Pa. 425, 980 A.2d 549 (2009)

(explaining that to establish ineffectiveness for failure to call witness,

appellant must prove witness existed and was available to testify for defense,

counsel knew or should have known witness existed, witness was willing to

cooperate, and proffered testimony’s absence denied appellant fair trial).

5 Further, trial counsel stated that he did not request a Frye hearing

concerning the Commonwealth’s expert, Mr. Woodring, because counsel did

not find a legal basis on which to challenge that opinion. Trial counsel was

(Footnote Continued Next Page)

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actions and was not ineffective; (issue 2) trial counsel requested “no adverse

inference” jury instruction and court initially believed it had given such charge;

court subsequently realized it had omitted charge, and it provided

supplemental “no adverse inference” charge;6 jurors deliberated for another

hour after supplemental charge; there was ample time for supplemental

charge to sink into minds of jurors; trial counsel took appropriate actions to

have charge published to jurors; further, Appellant did not suffer prejudice;

thus, trial counsel was not ineffective;7 (issues 3-4) trial counsel was not

ineffective for failing to cite to case law during motion in limine proceedings

to preclude testimony concerning Victim’s state of mind;8 prior to 2021 (post-

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aware that the expert he had retained for the defense, Mr. Wilhelm, refuted

Mr. Woodring’s claims, but counsel had concerns regarding Mr. Wilhelm’s

report where Mr. Wilhelm cited to a manual that was not in effect at the

relevant time. (See N.T. PCRA Hearing, 9/28/23, at 18-19).

6 See Pa.R.Crim.P. 647(D) (explaining that after jury has retired to consider

its verdict, additional or correctional instructions may be given by trial judge

in presence of all parties).

7 Likewise, Appellant has failed to demonstrate how appellate counsel was

ineffective for failing to raise this issue on direct appeal where the court

ultimately provided the “no adverse inference” instruction in a supplemental

jury instruction. Appellant cites no law to support the proposition that the

court’s supplemental jury charge was insufficient. Instead, Appellant relies on

cases where the court failed to provide the requested “no adverse inference”

instruction at all.

8 Appellant cites no law that states counsel is required to provide specific case

citations in a pre-trial motion in limine or at a hearing on same. Additionally,

we note that, notwithstanding Appellant’s reference to the “present sense

impression” hearsay exception in his statement of questions presented,

(Footnote Continued Next Page)

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dating Appellant’s 2015 trial), there was confusion in this area of law until

Supreme Court issued its decision in Commonwealth v. Fitzpatrick, 667 Pa.

447, 255 A.3d 452 (2021); trial counsel objected during motion in limine

arguments to admission of testimony concerning Victim’s state of mind, but

court ruled against him; additionally, there was abundant, admissible

testimony concerning Appellant’s statements in which Appellant

acknowledged threatening Victim; Appellant was not prejudiced by admission

of hearsay statements regarding Victim’s state of mind given overall evidence

presented; thus, trial counsel was not ineffective9) Accordingly, we affirm on

the basis of the PCRA court’s opinion.

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Appellant’s argument focuses only on how the challenged statements were

inadmissible under the state of mind hearsay exception. As Appellant does

not develop any argument concerning an analysis of the present sense

impression hearsay exception, we will not discuss that exception. Further, to

the extent Appellant purports to challenge trial counsel’s lack of preparation

in ways unrelated to the pre-trial motion in limine, those claims are not fairly

suggested by Appellant’s statement of questions presented. See Pa.R.A.P.

2116(a) (stating no question will be considered unless it is stated in statement

of questions involved or is fairly suggested thereby).

9 As discussed at length in the court’s opinion, Appellant relies on Fitzpatrick,

supra to support her claim that the challenged statements were inadmissible.

Assuming without deciding that the challenged statements were inadmissible

hearsay, we agree with the PCRA court that counsel was not ineffective for

failing to predict changes in the law. See Commonwealth v. Spotz, 587 Pa.

1, 896 A.2d 1191 (2006) (explaining that counsel’s stewardship must be

judged under existing law at time of trial and counsel cannot be deemed

ineffective for failing to predict future developments or changes in law). As

the Commonwealth points out, and as discussed in Fitzpatrick, there were

cases that would have supported admission of testimony concerning Victim’s

(Footnote Continued Next Page)

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Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 10/16/2024

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state of mind at the time of Appellant’s trial, just as there were cases that

would have supported exclusion of such evidence.

Further, we acknowledge this Court’s decision in Commonwealth v. Brown-

Camp, No. 2328 EDA 2021 (Pa.Super. filed Oct. 31, 2022) (unpublished

memorandum); see also Pa.R.A.P. 126(b) (explaining that we may rely on

unpublished decisions of this Court filed after May 1, 2019 for their persuasive

value). In Brown-Camp, on appeal from the denial of the appellant’s PCRA

petition, this Court addressed the appellant’s claim that trial counsel was

ineffective for failing to object to allegedly inadmissible testimony wherein the

decedent had identified the appellant as his killer. This Court discussed

Fitzpatrick, which was issued at the time of the PCRA proceedings in Brown-

Camp, and concluded that the PCRA court’s conclusion that the appellant was

not prejudiced was based on a legally erroneous analysis of Fitzpatrick as

applied to the facts of the appellant’s case. As the PCRA court did not conduct

a hearing, this Court remanded for a PCRA hearing to afford trial counsel an

opportunity to be heard as to whether he had a reasonable basis for failing to

object on hearsay grounds. Upon remand, this Court directed the PCRA court

to determine whether the basis counsel offers for failing to object is reasonable

and whether the erroneously-admitted evidence likely affected the verdict.

See Brown-Camp, supra. Here, unlike in Brown-Camp, trial counsel

sought to preclude the challenged statements in a motion in limine; ultimately,

trial counsel was unsuccessful in this attempt. Additionally, the court held

multiple PCRA hearings in this case, after which the court ruled that Appellant

failed to satisfy the second and third prongs of the ineffectiveness test. Thus,

Brown-Camp is distinguishable from the facts of this case.

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