# Commonwealth v. Wholaver > Supreme Court of Pennsylvania · February 18, 2010 · 605 Pa. 325 URL: https://www.frixlaw.com/law-library/cases/9707507 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellee v. Ernest WHOLAVER, Jr., Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** February 18, 2010 - **Citations:** 605 Pa. 325; 989 A.2d 883; 2010 Pa. LEXIS 162 - **Precedential status:** Published - **Opinion:** Concurrence by Saylor - **Judges:** Castille, Saylor, Eakin, Baer, Todd, McCaffery - **Cited by:** 133 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9707507 ## How later opinions describe it (automated extraction) - finding that consolidation was proper under Rule 582(A)(1)(b) for sexual offenses which the defendant committed against his daughters and charges for murder based on defendant’s fatal shooting of his wife and daughters “because the charges all flowed from the same events and w… - explaining that Appellant argued that the trial court’s “actions violated his rights to due process, to present, a defense, to have competent counsel, and to confront his accusers, necessitating a new trial” - holding that charges for sexual offense, solicitation of murder, and murder charges should be tried together “because the charges all flowed from the same events and were part of the same story...” - stating that “[a]lthough a preliminary hearing is concerned with probable cause,” defense counsel could inquire about a witness’s bias, motive to lie, and credibility when appropriate - rejecting Appellant’s contention that ‘‘the trial court erred in' allowing incorporation of evidence from the guilt phase, concerning nine-month-old Madison Wholaver’s dehydrated condition, into the penalty phase” ## Opinion text Justice SAYLOR, concurring. I join the majority opinion, except for its reasoning pertaining to Appellant’s claims centered on his requests for expert assistance; his claimed excited utterance; and the prosecutor’s emphasis on his killing of his own family as trumping the defense mitigation case at the penalty stage. As to the first of these claims, I would rest the disposition of the claim of underfunding more squarely on Appellant’s failure to request additional funds upon a showing of further cause after exhaustion of the funds that were allocated. Furthermore, I would specifically address Appellant’s claim that the court-appointed psychologist was not competent to assist the defense. See Brief for Appellant at 18. As to the asserted excited utterance, I do not fully understand the majority’s position that Appellant’s statement related only to an event outside the house, see Majority Opinion, at 864-65, 989 A.2d at 906, when the alleged emotional impact arises from Appellant’s claim to having seen something in the house (presumably, indicia that one or more of his family members had been killed). The substantial reliance on the passage of five to ten minutes time for reflection is also problematic, as certainly courts have held that declarants may remain under the stress from severe emotional events for longer periods of time. See Kenneth S. Broun, 2 McCormick on Evidence § 272 (6th ed. 2006) (“Passage of time viewed in isolation is not an entirely accurate indicator of admissibility. For example, while courts have held statements made twelve or more hours after a physical beating to be the product of the excitement caused by the beating, other courts have held statements made within minutes of the event not admissible.” (footnotes omitted)). In my view, the statement could reasonably have been excluded based upon the overall circumstances under which it allegedly was made (e.g., at the destination of a surreptitious trip to a location from which Appellant had been lawfully *372 excluded and after sufficient time for Appellant to have actually committed the murders, as there was substantial evidence that he did). Moreover, given the vague and self-serving-character of the asserted declaration (as noted by the majority), and the weight of the other evidence of Appellant’s guilt, it does not seem to me that there is any real likelihood that it would have had any impact on the verdict. Thus, I find any error in the trial court’s statement of its reasons for exclusion of the evidence to have been harmless. Finally, concerning Appellant’s last claim, that the prosecutor engaged in misconduct by stressing that Appellant killed his own family as rebuttal to the defense mitigation case, the majority appears to accept the prosecutor’s position that “the Commonwealth was free to address the catch-all mitigator’s applicability on its general terms — ‘the character and record of the defendant and the circumstances of his offense’— without being confined to specific aspects emphasized by the defense[.]” Majority Opinion, at 367, 989 A.2d at 908. Such position, however, is contrary to law, since rebuttal is confined to particular form of mitigation put into issue by the defense. See Commonwealth v. Hughes, 581 Pa. 274 , 333-34 & n. 40, 865 A.2d 761 , 796-97 & n. 40 (2004) (explaining that the appropriate scope of rebuttal mitigation is defined according to the evidence that it is offered to rebut). I am able to join the result obtained under the majority opinion only because the prosecutor also related the comments to Appellant’s character (which was implicated by the defense mitigation ease). See N.T., August 31, 2004, at 1229. In this regard, I agree that the comments were sufficiently related to Appellant’s character — particularly as he was portrayed in the defense mitigation case as “loving.” See id. at 1204. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9707507. Public record. Not legal advice.