Com. v. Stephens, D.

J-A03036-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

DEBORAH ANN STEPHENS :

:

Appellant : No. 898 MDA 2020

Appeal from the Judgment of Sentence Entered January 16, 2020

In the Court of Common Pleas of Adams County Criminal Division at

No(s): CP-01-CR-0001094-2018

BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 19, 2021

Deborah Ann Stephens appeals from the judgment of sentence, entered

in the Court of Common Pleas of Adams County, following the entry of a

conditional, open guilty plea to third-degree murder.1 Stephens admitted to

hitting the victim, her husband, at least 36 times with a baseball bat in the

head, inflicting fatal blunt force trauma and causing multiple skull fractures.

After careful review, we affirm.

Nine days before his death, the victim sent the parties’ son a text

message stating that Stephens had threatened the victim that she was going

to hit him in the head 20 times with a baseball bat. Specifically, the text

message stated:

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1 18 Pa.C.S. § 2502(c).

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The whole time you were on the phone with her[,] she stood over

me watching for me to get on my phone and text. I was looking

at [C]raigslist[,] nothing else[. T]h[e]n[, a]s soon as you hung

up, [s]he started harassing me yes both ways. Then when I

started to leave[,] Shea (sic) unhook[ed] my suspenders and

continued until I was out the door. You take it for what it’s worth[.

S]he threatened me with a baseball bat[. F]irst to hit me over the

head and crack me 20 times in the face[. Then] she slapped me

10 times say (sic) just imagine that was a bat. She also said one

of us is going to be dead over these. (sic).

Stephens, J.E., Jr., Text Message to J.E. Stephens, III, 8/28/18 at 4:37 PM

(attached as “Exhibit A” to Commonwealth’s Memorandum of Law Regarding

Anticipated Evidentiary Trial Issues). On September 6, 2018, the parties’ son

told troopers that the victim was dead inside their house.2 When troopers

arrived to investigate the report of a death at the home, Stephens exited the

residence and told one of the troopers that she “killed her husband with a

baseball bat.” Affidavit of Probable Cause, 11/2/18. The troopers found the

lifeless body of the victim on the floor of the home. The Commonwealth

charged Stephens with first-degree3 and third-degree murder (F-1). She was

not charged with voluntary manslaughter.

On July 10, 2019, the Commonwealth filed a motion for a pre-trial ruling

asking the court to determine whether voluntary manslaughter, although

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2 When Stephens failed to report to work, the parties’ son visited his parents’

home. When he arrived at the residence, the front door was locked and

Stephens would not open the door for him, but told her son to call the police.

Stephens then told her son, “I hit him with a bat, he’s in the bedroom, I killed

him.” Affidavit of Probable Cause, 11/2/18.

3 18 Pa.C.S. § 2502(a).

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uncharged in the matter, would be considered by the jury. The

Commonwealth was concerned that Stephens would attempt to request such

a charge under a “heat of passion” theory. After argument, the trial court

denied the Commonwealth’s motion, noting that the issue could be revisited

during trial.4

On August 28, 2019, the Commonwealth filed a motion in limine to

preclude Stephens from introducing text messages documenting the victim’s

alleged marital infidelity, claiming such evidence was irrelevant and hearsay.

Specifically, the Commonwealth sought to preclude electronic messages, sent

between the victim and an unidentified third party in June, July, and August

of 2018. The Commonwealth claimed that this case was different from one

where there was physical abuse perpetrated on the defendant by the victim

or one that involved battered woman syndrome or an immediate heat-of-

passion-type offense. Thus, the Commonwealth, not the defense, had the

burden to prove any type of motive or intent.

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4 Specifically, the trial court stated:

While a voluntary manslaughter instruction may not be warranted

under the facts currently apparent about [Stephens’] knowledge

of marital discord and [Stephens’] allegations of infidelity and

[her] threats toward Decedent, which were known to [Stephens]

or made by her well before the homicide, this [c]ourt cannot know

what additional evidence of provocation [Stephens] hopes to

present at trial.

Opinion, 8/26/19, at 2.

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At argument on the motion in limine, held on September 23, 2019,

Stephens argued that the evidence was admissible because it was relevant to

both her motive and intent in committing the fatal act, stating:

It’s not only relevant to motive, it would be relevant to intent. It’s

part of the story of this case. Absent any explanation as to why

the act at issue that led to the decedent’s death occurred,

essentially what you would be having, Your Honor, is evidence of

a random killing being brought in front of the jury. Not only [is

that] fundamentally unfair, it simply wouldn’t make any sense.

N.T. Motion In Limine Argument, 9/23/19, at 4-5. The court granted the

Commonwealth’s motion in part, excluding any evidence of infidelity that

occurred prior to the date of the murder, finding that such evidence was too

remote in time to the murder to be relevant to any defense. The court,

however, ruled that evidence about incidents occurring on the day of the killing

may be admissible to support a defense of provocation if, at trial, Stephens

introduced such evidence and was able to show that she acted in the heat of

passion.5

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5 Specifically, the trial court’s order stated:

The Commonwealth’s [m]otion is granted as it pertains to

evidence of communications including, but not limited to, social

media comments and postings, text messages, [and] electronic

communications occurring prior to the date of the homicide or

other information pertaining to the Decedent’s alleged infidelity

known to Defendant prior to the date of the homicide. Evidence

of such communications or actions occurring on the date of the

homicide may be admissible[,] provided they are sufficient in

proximity to the time of the homicide to be relevant to the issue

of provocation and whether Defendant acted in the heat of

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In lieu of proceeding to trial, Stephens pled guilty to third-degree

murder on October 31, 2019. While Stephens and the prosecution made no

agreement as to sentencing in the open plea, Stephens reserved the right to

challenge, on direct appeal, the trial court’s ruling that precluded evidence

concerning the victim’s alleged marital infidelity. The Commonwealth agreed

that if our Court reversed the trial court’s ruling and vacated Stephens’

judgment of sentence, Stephens would be permitted to withdraw her plea

within 30 days of our Court’s decision. The court memorialized the conditional

plea in an October 30, 2019 order that stated:

The plea is a conditional plea. The condition of plea and the issue

reserved by the [d]efense is the right to appeal from the portion

of this [c]ourt’s order dated September 23, 2019, which granted

in part the Commonwealth’s motion in limine seeking to preclude

evidence concerning De[ceden]t’s alleged marital infidelity.

Order of Court, 10/23/19; see also Order of Court, 11/1/19 (noting minor

correction to 10/23/19 order by changing “Defendant” to “Decedent”).

Stephens filed a timely notice of appeal and court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. On appeal,

Stephens presents one issue for our consideration: “Did the [trial] court err

when it granted the Commonwealth’s motion in limine in part and ruled that

____________________________________________

passion. If Defendant introduces such evidence in her case in

chief, the Commonwealth may introduce rebuttal evidence

showing Defendant’s awareness of Decedent’s purported infidelity

prior to the date of the homicide in order to rebut heat of passion

arguments.

Trial Court Order, 9/23/19.

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evidence of marital infidelity known by Stephens before the day of the

homicide is not admissible, but that evidence of same from the day of the

homicide may be admissible?” Appellant’s Brief, at 4.

When reviewing the [grant or] denial of a motion in limine, we

apply an evidentiary abuse of discretion standard of review. See

Commonwealth v. Zugay, [] 745 A.2d 639 (Pa. [Super.] 2000)

(explaining that because a motion in limine is a procedure for

obtaining a ruling on the admissibility of evidence prior to trial,

which is similar to ruling on a motion to suppress evidence, our

standard of review of a motion in limine is the same of that of a

motion to suppress). The admission of evidence is committed to

the sound discretion of the trial court and our review is for an

abuse of discretion.

Commonwealth v. Moser, 188 A.3d 1217, 1229 (Pa. Super. 2018) (quoting

Commonwealth v. Stokes, 78 A.3d 644, 654 (Pa. Super. 2013) (some

citations omitted)). A ruling on the admission or exclusion of evidence “will

not be disturbed on appeal unless that ruling reflects ‘manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support to be clearly erroneous.’” Commonwealth v. Minich, 4 A.3d 1063,

1068 (Pa. Super. 2010) (citation omitted).

Instantly, the trial court granted, in part, the Commonwealth’s motion

in limine, which effectively precluded Stephens from presenting any evidence

of the victim’s infidelity prior to the date of the homicide. Stephens claims

that this evidence was admissible to prove a heat of passion defense to murder

because “the cumulative impact of a related series of events is relevant to

passion and provocation.” Appellant’s Brief, at 20.

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A heat of passion defense is a partial defense that addresses the element

of intent and, if successfully argued, mitigates first-degree murder to

voluntary manslaughter, a first-degree felony. Commonwealth v.

Hutchinson, 25 A.3d 277, 314 (Pa. 2011). Specifically, in invoking the

defense, the defendant seeks to prove that, at the time of the killing, he or

she was acting under a sudden and intense passion that resulted from serious

provocation by the victim. See 18 Pa.C.S. § 2503(a) (“A person who kills an

individual without lawful justification commits voluntary manslaughter if at the

time of the killing he is acting under a sudden and intense passion resulting

from serious provocation . . . by the individual killed[.]”). “Passion” has been

defined as “[a]nger and terror provided they reach a degree of intensity

sufficient to obscure temporarily the reason of the person affected. . . . [It] .

. . means any of the emotions of the mind known as anger, rage, sudden

resentment[,] or terror, rendering the mind incapable of cool reflection[.]”

Commonwealth v. Laich, 777 A.3d 1057, 1061 (Pa. 2001).

The relevant inquiry for purposes of a heat of passion defense is what

the defendant’s state of mind was at the time of the murder—in particular,

whether she was “uncontrollably compelled by passion” or whether “the victim

had provoked [her] into such passion.” Hutchinson, supra at 315. “[T]he

passage of time between [the] provocation and the ‘passion’ must be viewed

as a cooling period, and killings will not be deemed to have occurred under

the heat of passion where there was sufficient time for cooling between

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whatever provocation might have existed and the actual killings.”

Commonwealth v. Mason, 130 A.3d 601, 629 (Pa. 2015).

“In order to successfully argue heat of passion, a defendant must prove:

(1) provocation on the part of the victim; (2) that a reasonable [person] who

was confronted with the provoking events would become ‘impassioned to the

extent that his [or her] mind was incapable of cool reflection;’ and (3) that

the defendant did not have sufficient cooling off time between the provocation

and the killing.” Id. at 628. If any element is missing, the provocation

defense fails. Hutchinson, supra at 315.

In Hutchinson, supra, the Supreme Court concluded that the

defendant’s claim that counsel was ineffective for failing to raise a heat of

passion defense was meritless because the defendant

suggest[ed] no evidence that, at the time of the murder, he

had been so provoked by the victim as to be compelled by passion

beyond the control of his reason. [Rather, t]he evidence cited by

[the defendant], i.e., that [the defendant] and the victim had been

arguing shortly before the murder, that there were serious

problems in their relationship, that [the defendant] was jealous,

and that [the defendant]’s prior or concurrent paramours had

sought restraining orders against him, does not show that, at the

time of the murder, [defendant] was uncontrollably compelled

by passion or that the victim had provoked him into such passion.

Id. (emphasis added). See Mason, supra at 628 (cumulative effect of

defendant’s “stormy relationship” with victim and revelations of infidelity that

occurred in parties’ relationship did not qualify as heat of passion defense

evidence where defendant did not specifically assert that “at the time of the

killing” victim’s provocation caused him to act or that defendant had no time

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to cool off before killing) (emphasis added); see also Commonwealth v.

Williams, 980 A.3d 510 (Pa. 2009) (violent confrontation occurring two days

prior to murder did not serve to reduce degree of guilt to manslaughter since

killings do not occur under heat of passion where there is sufficient time to

cool between whatever provocation might have existed and actual killings).

In fact, our Courts have historically found that “revelations of infidelity [are]

insufficient to constitute provocation for purposes of a heat of passion

defense.” Mason, supra at 629.

This is not a case where Stephens proffered a theory of self-defense, or

one in which the victim had physically and psychologically abused her for years

leading up to his death. In such a case, we agree that the prior history of

Stephens’ marital discord with the victim might be relevant to establish the

quantum of provocation needed to prove such a heat of passion defense. See

Commonwealth v. McCusker, 292 A.2d 286, 290 (Pa. 1972) (not until court

finds that accused was confronted with sufficient provocation does focus shift

to defendant’s response to that provocation); see also Commonwealth v.

Stonehouse, 555 A.2d 772 (Pa. 1989) (recognizing that cumulative effects

of psychological and physical abuse by victim’s behavior in past relevant in

determining “reasonableness” of battered person’s fear of imminent danger of

death or serious bodily injury). While the McCusker Court opined that “[i]n

making the objective determination as to what constitutes sufficient

provocation reliance may be placed upon the cumulative impact of a series

of related events,” McCusker, supra at 290 (emphasis added), our

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Supreme Court subsequently explained the limited nature of that holding,

stating that “[t]o the extent that [a defendant] suggests a heat of passion

defense may be based purely on provoking actions or statements that are not

contemporaneous to the resulting ‘sudden and intense passion,’ [he or she] is

clearly mistaken, as the passage of time between provocation and the

‘passion’ must be viewed as a cooling period.” Mason, supra at 629

(emphasis added).

Here, Stephens’ evidence of the victim’s infidelity prior to the homicide

is insufficient to be deemed adequate provocation, and, thus, was irrelevant

to any heat of passion defense. In fact, the text message from the victim to

the parties’ son, indicating that Stephens had threatened the victim more than

one week before she committed the deadly acts, militates against a heat of

passion defense, and suggests that the killing was, in fact, a premeditated

act. Accordingly, the trial court correctly precluded evidence of infidelity prior

to the killing where Stephens had a sufficient time to cool off between those

events and the fatal act. Mason, supra at 629 n.34 (“With regard to

Appellant’s reliance on [] McCusker[] for the proposition that ‘in making the

objective determination as to what constitutes sufficient provocation, reliance

may be placed upon the cumulative impact of a series of related events,’” . .

. Appellant neglects to mention that the series of related events in

[McCusker] involved a prior revelation of infidelity coupled with two other

provoking statements made immediately prior to the killing.”) (emphasis

in original). We conclude the excluded evidence from one to three months

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before the fatal event would have been irrelevant for a heat of passion defense

to show “emotional upheaval or provocation caused by the victim” at the time

of the killing. Commonwealth v. Dick, 978 A.2d 956, 960 (Pa. 2009).

Thus, we find no abuse of discretion or manifest unreasonableness in the

court’s ruling. Moser, supra; Minich, supra.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/19/2021

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