Commonwealth v. Levanduski

CONCURRING OPINION BY

JOYCE, J.:

¶ 1 Upon my review, I agree with the distinguished Majority’s thoughtful disposition of each of Appellant’s issues, particularly with the conclusion that Appellant’s letter was inadmissible under the state of mind exception to the hearsay rule.

¶ 2 Out-of-court statements are admissible under the state of mind exception to the hearsay rule for two primary reasons: (1) the declarant’s state of mind is often impossible to prove in the absence of these statements and (2) statements of the de-clarant’s state of mind are viewed to be reliable, as are present sense impressions and excited utterances, due to their spontaneity. See Packel & Poulin, Pennsylvania Evidence, § 803(3) — 1(a). The state of mind exception to the rule against hearsay permits the introduction of out-of-court statements in three particular instances. First, the exception may be used to establish the declarant’s state of mind when the declarant’s state of mind is at issue. Id. at § 803(3)-(1)(a)(1); Commonwealth v. Auker, 545 Pa. 521, 547 , 681 A.2d 1305, 1319 (1996); Commonwealth v. Riggins, 478 Pa. 222, 234 , 386 A.2d 520, 526 (1978). A declarant’s state of mind is at issue if it is an element of a charge, claim or defense. Packel & Poulin, at § 803(3)-(1)(a)(1). For example, a murder victim’s state of mind might be relevant to rebut a defendant’s claim of self-defense, accident or suicide, see U.S. v. Brown, 490 F.2d 758, 780 (1973), or to establish, where the crime of burglary or kidnapping is also charged, that the victim would not have given the defendant permission to enter or would not have gone with the defendant willingly. See Commonwealth v. Stallworth, 566 Pa. 349, 363 , 781 A.2d 110, 118 (2001); Auker, supra at 547 , 681 A.2d at 1319 ; Riggins, supra at 234 , 386 A.2d at 526 . Second, a declarant’s out-of-court statement that he intends to perform a particular act in the future may be admissible under this exception to establish that the declarant acted in conformity with his/her expressed inten tion. Packel & Poulin, at § 803(3)-(l)(a)(2); Commonwealth v. Sneeringer, 447 Pa.Super. 241 , 668 A.2d 1167, 1171-72 (1995) (holding that murder victim’s statements to third parties about her intention to end her relationship with the defendant and to throw him out of the house was admissible under the state of mind exception to show that she acted in conformity with her intention; the fact that the victim ended her relationship with the defendant was probative of his motive). Third, an out-of-court statement of a declarant’s memory or belief may be admitted to prove a fact remembered or believed only if the statement relates to the execution, revocation, identification or terms of the declarant’s will. Packel & Poulin, at *31 § 803(3) — 1(a)(3); see generally Brown, 490 F.2d at 763 (stating “[i]n general, where state of mind testimony is sought to be used in an attempt to demonstrate the truth of the underlying facts rather than solely to show state of mind, the evidence must be excluded”). If the state of mind exception permitted the introduction of statements indicating a belief in, or memory of a fact, the state of mind exception would swallow the rule against hearsay. Packel & Poulin, at § 803(3)-(1)(a)(3), citing Shepard v. U.S., 290 U.S. 96, 105-106 , 54 S.Ct. 22 , 78 L.Ed. 196 (1933).

¶ 3 In the instant case, the victim’s letter refers entirely to his memory of past events (ie. his discovery of two love letters addressed to his wife, his discussion with her about the first letter, his recollection of the letters’ contents, his wife’s overnight with her mother, his visit with Lenny, his memory of the substance of his discussion with Lenny, his recollection that Lenny wore rubber gloves during his visit, his discussion with his wife after Lenny’s visit, his discovery of his missing pistol, and his discussion with his wife regarding the pistol) and to his belief about what these events could mean (ie. Lenny tried to avoid leaving fingerprints and Appellant gave Lenny the gun to murder him). Further, the trial court permitted the Commonwealth to introduce this letter, in its entirety, to circumstantially prove that Lenny and Appellant had a relationship and a motive to kill the victim. Since the letter could only establish the existence of a relationship and a motive if the jury believed the truth of the matter contained therein, the letter constitutes hearsay. Furthermore, the declarations contained in the letter do not qualify under the state of mind exception to the hearsay rule because (1) the victim’s state of mind is not at issue in this prosecution; (2) the only statement of intention in the letter — that the victim would place the love letters with the letter he authored — has no probative value if offered solely to prove that he did just that, and (3) the statements of memory or belief contained in the letter cannot be offered to prove the truth of the matter asserted, namely, that Appellant and Lenny had a relationship and a motive to kill the victim.

¶ 4 Beyond this, I cannot conclude that the declarations contained in the victim’s letter could be classified as spontaneous, thereby engendering them with a degree of reliability and trustworthiness. The record reflects that Appellant drafted a lengthy handwritten letter, spanning multiple pages and containing sixty sentences, in which he recounted the relevant events occurring over the course of, at least, twenty-two days. After digesting and synthesizing these events, the victim concluded that his wife and her lover may be plotting his demise. These facts, coupled with the narrative quality of a letter, indicate that the letter was not spontaneous. Rather, it emanated from his reflective faculties.

¶ 5 I write separately, however, to ask the Supreme Court to clarify the existing decisional law on the applicability of the state of mind exception to the hearsay rule, should the opportunity present itself. Although the Majority attempts to distinguish a number of these eases, I am unable to do so. On a number of occasions, our Supreme Court has held that a murder victim’s statements, regarding his/her relationship with the appellant, were admissible under the state of mind exception to the rule against hearsay to show the presence of ill-will, malice or motive for the killing. See e.g. Stallworth, supra (finding that the appellant’s threats to the murder victim, which were contained in a PFA petition, were admissible under the state of mind exception to the hearsay rule to establish the appellant’s intent or mo *32 tive for committing the crime); Commonwealth v. Chandler, 554 Pa. 401 , 721 A.2d 1040 (1998) (finding that the trial court properly permitted the Commonwealth to introduce evidence that the murder victim had told a third party about her negative feelings for the appellant and her relationship with him under the state of mind exception because the victim’s opinion of the appellant and her marriage to him went to the presence of ill-will, malice or motive for the killing); Commonwealth v. Fletcher, 561 Pa. 266 , 750 A.2d 261 (2000) (finding that the murder victim’s statement to a third party that the victim had smoked the appellant’s crack cocaine was admissible under the state of mind exception to the hearsay rule to show the presence of ill-will, malice, or motive for the killing). Conversely, on other occasions, our Supreme Court has held that the murder victim’s statements regarding his/her relationship with the appellant are not admissible because the victim’s perception of the state of the relationship is not relevant. See Commonwealth v. Laich, 566 Pa. 19 , 777 A.2d 1057 (2001) (finding that the appellant’s threats to kill the murder victim if he ever caught her with another man were not admissible under the state of mind exception because the victim’s state of mind was irrelevant as to the appellant’s degree of guilt); Commonwealth v. Thornton, 494 Pa. 260 , 431 A.2d 248 (1981) (finding that the trial court improperly admitted the murder victim’s statement to police — that the appellant was after him — because the murder victim’s state of mind was not at issue in the case). I respectfully opine that the Supreme Court’s clarification of this precedent would aid the bench and bar of this Commonwealth.

¶ 6 Having concluded that the trial court improperly admitted the letter, but that the error was harmless beyond a reasonable doubt, I concur in the esteemed Majority’s disposition.