Petition for Writ of Certiorari — Maria I. Sanutti-Spencer, Petitioner v. Pennsylvania

Supreme Court briefSep 22, 2018

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NO:

IN THE

SUPREME COURT OF THE UNITED

MARIA SANUTTI-SPENCER-PETITIONER

V.

COMMONWEALTH OF PENNSYLVANIA- RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI TO

UNITED STATES SUPREME COURT

APPENDIX OF PETITIONER

MARIA SANUTTI-SPENCER- PRO-SE

INMATE ID# 0X1149

SCI - MU N CV

P.O. BOX 180

MUNCY, PA. 17756

L010,

/

J-A26036-17

NON-PRECEDENTIAL DECISION

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SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

PENNSYLVANIA

V.

MARIA I. SANUTTI-SPENCER

Appellant

:

No. 782 MDA 2016

Appeal from the Judgment of Sentence December 18, 2015

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

No(s): CP-19-CR-0000754-2014

BEFORE: BOWES, J., OLSON, 3., and RANSOM, 3.

MEMORANDUM BY RANSOM, 3.:

FILED JANUARY 11, 2018

Appellant, Maria I. San utti-Spencer, appeals from the judgment of

sentence of life in prison without the possibility of parole followed by an

aggregate of two hundred fifty months (250) to six hundred ninety-six months

(696) of incarceration, imposed December 18, 2015, following a jury trial

resulting in her conviction for criminal homicide, criminal solicitation to commit

homicide, criminal conspiracy, burglary, receiving stolen property, criminal

solicitation to commit burglary, multiple counts of arson, criminal solicitation

to commit arson, criminal attempt to commit homicide, terroristic threats, and

multiple counts of perjury.' We affirm.

' See

respectively, 18 Pa.C.S. §§ 2501; 902(a); 903(a)(1); 3502(a)(2);

3925(a); 902(a); 3301(a)(1)(ii); 902(a); 901(a); 2706(a)(1); and 4902(a).

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The relevant facts and procedural history are 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. See Notes

of Testimony (N.T.), 11/12/2015, at. 145. Police records confirm that the

Victim reported that Appellant had threatened to kill him on "numerous

occasions." Id. Following one such occasion, which occurred in October 2006,

the Victim filed for divorce. See Id. at 159.

On May 15, 2007, the Victim reported that Appellant threatened that

her Father, Anthony Rocco Franklin ("her Father"), would kill him. Id. at 160.

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. N.T., 11/12/2015, at 61-62, 65.2 When Mix and Appellant were

coworkers in 2005, Appellant threatened to harm the Victim. See Id. at 6164 (Lee Mix testified Appellant threatened to kill the Victim by injecting him

with insulin while he was asleep). Appellant also implied that her Father was

in the Mafia. Id. at 64. Mix informed Appellant that she could not help. Id.

at 65.

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"). Id. at 87-88. Parole agent James Curry

At the time, Mix was equal employment opportunity director for the parole

board. N.T., 11/12/2015, at 65.

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conducted the pre-parole investigation.

Id. at 85-86. 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. Id. at 88. Her Father's proposed home

plan was denied. See Id.

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. Id. at 98-99,

104. 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. N.T., 11/13/2015, at 52.

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.

Id. at 52-53. Appellant

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

the house of the Victim's girlfriend, Julie Dent. Id. at 57-58; see also N.T.,

11/12/2015, at 167-168 (the Victim's mother heard Appellant threaten to

burn down the house "50" times and say her Father was in the Mafia and

would have the Victim killed); Id. at 105-106 (the Victim's lawyer knew the

Victim lived in fear based on threats by Appellant to burn down his house and

of being killed by her Father). In January 2010, a fire occurred at the Victim's

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home. N.T., 11/12/2015, at 107. In August 2010, another fire burned the

house of the Victim's girlfriend to the ground. See Id.

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 killing him and that they were threatening to kill

him. N.T., 11/13/2015, at 146; N.T., 11/10/2015, at 188. 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." N.T., 11/10/2015, at 187. Appellant

expressed anger and hostility toward the Victim following divorce hearings,

often concerning custody of their children.

Id.. at 185. 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." Id. at 186.

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

and designating the Victim as homeowner of the Fairview Drive Residence.

N.T., 11/11/2015, at 43. A police officer helped the Victim compose a notrespassing letter to Appellant (dated 6/27/2012), telling Appellant to stay off

his property except when exchanging custody of their children in the driveway.

Id. at 44; see also N.T., 11/13/2015, at 61, 63.

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

the evening ofn0, 2Typpellant 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

Till1%5

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will be her last.... And she can join [the Victim]." N.T., 11/11/2015, at 135.

The Victim's cousin immediately reported Appellant's threats to the police. Id.

On July 3, 2012, the Victim's body was discovered shot dead in the foyer

of the Fairview Drive Residence. N.T., 11/17/2015, 234-236, 237-238. 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.

Id.

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. N.T., 11/12/2015, at 31. Blood splatter

was found on the interior of the front-door threshold, "indicative of the door

being opened when the bloodletting event occurred." N.T., 11/11/2015, 23.

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

Y shape in front of the house. N.T., 11/12/2015, at 36. Officer Droplinski

testified that the tree offered support for the firing position and was within

firing range of the front door. Id. at 38; see also Id. at 59 (noting distance

between perch and house was 115 feet).

Corporal David Andreuzzi found yellow, cleaning gloves at the scene,

one on the kitchen floor and one in the kitchen sink. N.T., 11/11/2015, 261

29, 39. A forensic expert testified that DNA samples recovered from the

gloves matched the DNA profile of Appellant. Id. at 157-58, 226.

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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 twenty-six (26) crimes as described above.3 On October

30, 2014, Appellant filed a motion for writ of habeas corpus. Following a

hearing, Appellant's motion was denied. See Order, 1/5/2015. Appellant also

filed an omnibus pre-trial motion, including a motion to preclude hearsay

testimony.

See Def.'s Mot. (filed 3/9/2015). 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. See Order, 6/22/2015.

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. See Order, 11/3/2015. 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 all twenty-six counts on November 20, 2015. On December 18,

Appellant's Father fled to Argentina after testifying before the grand jury;

however, in April 2017, he was extradited back to Harrisburg to face criminal

prosecution.

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2015, Appellant was sentenced as described above. Appellant timely filed a

notice of appeal. On February 3, 2016, the court issued a concise statement

order pursuant to Pa.R.A.P. 1925(b). On February 16, 2016, appellate counsel

entered his appearance and contemporaneously sought an extension of time

to file the 1925(b) statement. The trial court granted the extension on

February 24, 2016.

On March 18, 2016, this Court quashed the direct appeal due to

Appellant's failure to file a docketing statement. See Order, 150 MDA 2016,

dated 3/18/2016; see also Pa.R.A.P. 3517. On May 5, 2016, Appellant's

appellate rights were reinstated nunc pro tunc. Thereafter, Appellant timely

filed a court-ordered 1925(b) statement. The trial court filed a responsive

opinion, noting that Appellant's concise statement raised more than forty

allegations of error. See Trial Ct. 1925(a) Op. (TCO), 6/30/2016, 6-7. The

trial court reorganized these to facilitate its review, given the "the volume of

[Appellant's] complaints and the vague and sometimes repetitive nature [of]

her not so [c]oncise [s]tatement[.]" Id., at 7.

On appeal, Appellant raises the following issues:

[Appellant] was precluded from presenting evidence of

another's motive, of the [Victim]'s abuse, and of her significant

health issues that would have made it physically impossible to

perform the acts required to commit the crime as alleged by

the government. Did these exclusions violate her right to

present a complete defense?

By saying to the jury before the witness testified "I don't think

it necessarily rebuts anything," did the trial court improperly

invade[] the province of the jury by commenting of the weight

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to give a defense witness' testimony? Is this especially so when

this witness was called to directly rebut the government's

theory of motive? Did these inappropriate comments violate

[Appellarit]'s right to a fair and impartial trial?

A corporal was permitted to testify to his opinion, because of

his experience as a police officer, that he believed that a certain

set of yellow cleaning gloves found in the kitchen of the

[Victim]'s house and later found to have [Appellant's] DNA in

them were used to move a body from outside to inside the

house. Was he testifying as an expert or is that the type of

knowledge and science so ordinary that "everyone knows it"?

After a sequestration order was issued for all witnesses, was it

permissible for the trial court to do absolutely nothing when

two witnesses, who provided a bold, public admission of the

murder made by [Appellant], were caught violating that order

(with one admitting to it) in giving the other a "heads up" as to

what he was going to be "quizzed" about by the defense?

Was it error for the trial court to read, as a non-responsive

answer to a jury question, the criminal information as a fact

(not as an allegation) prefaced by "attention-getting words" of

"in order to avoid any confusion about the charges in this case

I am going to read the following to you" and then after the

reading of the criminal information, the words "That is all I have

to say on that issue. Again, I hope it [clarifies] the issues for

YOU."?

Appellant's Br. at 5-7 (suggested answers omitted).

First, Appellant contends that her due process rights were violated when

she was not permitted to present a complete defense due to evidentiary

rulings of the trial court. See Appellant's Br. at 30-31. Appellant maintains

that the court erred in excluding the following: (A) evidence of Appellant's

physical ailments to rebut the theory that she was physically capable of

shooting a rifle or dragging the Victim's 200-pound body; (B) evidence of the

Victim's domestic abuse to rebut the theory that the Victim was afraid of

J-A26036-17

Appellant; (C) evidence of the Victim's drug use to suggest that others may

have had a motive to kill the Victim; and (D) proffered testimony of two

witnesses to establish that her Father had an independent motive against the

Victim based on the alleged domestic abuse. See id. at 30. In her reply brief,

Appellant concedes that the trial court's rulings were based upon established

evidentiary rules. See Appellant's Reply Br. at 1. However, she maintains

that the court applied the rules in a "mechanical" fashion that deprived her of

due process and the right to present a complete defense pursuant to the

guarantees of the Due Process Clause of the Fourteenth Amendment and the

Confrontation Clause of the Sixth Amendment.

See id. at 1-2; see also

Appellant's Br. at 34 (relying on Holmes v. South Carolina, 547 U.S. 319,

324-326 (2006)). Appellant maintains that the combination- of adverse rulings

cumulatively had an impact on her ability to present a full and complete

defense, and constitutes the denial of a trial in accord with fundamental

standards of due process. Id. at 31-35 (relying on Holmes, 547 U.S. at 32425; Montana v. Egelhoff, 518 U.S. 37, 53 (1996); Chambers v.

Mississippi, 410 U.S. 284, 294 (1973)).

Our standard of review is as follows:

The admissibility of evidence is within the sound discretion of

the trial court, and this Court will not reverse a trial court's

decision concerning admissibility of evidence absent an abuse of

the trial court's discretion. An abuse of discretion will not be found

based on a mere error of judgment, but rather exists where the

court has reached a conclusion which overrides or misapplies the

law, or where the judgment exercised is manifestly unreasonable,

or the result of partiality, prejudice, bias or ill-will.

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Commonwealth v Alicia, 92 A.3d 753, 760 (Pa. 2014) (internal citations

omitted). "A defendant has a fundamental right to present evidence provided

that the evidence is relevant and not subject to exclusion under one of our

established evidentiary rules." Commonwealth v. McGowan, 635 A.2d 113,

115 (Pa. 1993) (citation omitted). "All relevant evidence is admissible, except

as otherwise provided by law." Pa.R.E. 402. Relevant evidence "tends to

prove or disprove some material fact, or tends to make a fact at issue more

or less probable." Commonwealth v. Patterson, 91 A.3d 55, 71(Pa.2014)

(citing McGowan, 635 A.2d at 115); see also Pa.R.E. 401 (defining relevant

evidence)). The Supreme Court of the United States recognizes:

[W]ell-established rules of evidence permit trial judges to exclude

evidence if its probative value is outweighed by certain other

factors such as unfair prejudice, confusion of the issues, or

potential to mislead the jury. [T]he Constitution permits judges

only marginally relevant

to exclude evidence that is repetitive

or poses an undue risk of harassment, prejudice, [or] confusion

of the issues.

...,

Holmes, 547 U.S. at 326-37 (internal citations and quotation marks omitted).

First, Appellant claims that the court erred in excluding evidence of her

severe diabetes and other health issues. See Appellant's Br. at 35. Appellant

contends that this evidence was relevant for the factfinder to determine that

she was physically incapable of shooting the Victim with a sniper rifle or

dragging his 200-pound body into the house. See Id. at 35-38. Appellant

claims that such evidence would have rebutted the Commonwealth's twelve

witnesses who testified that the Victim was afraid of her.

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In response, the Commonwealth maintains that it "has never argued

that [Appellant] fired the shot from the sniper's nest or that she drug [sic]

[the Victim's] body into the house by herself."

See Commonwealth's Br. at

29. The Commonwealth's theory of the case was that Appellant was engaged

in a conspiracy to commit the murder. "It is well-established

...

that a

defendant who was not a principal actor in committing the crime, may

nevertheless be liable for the crime if [she] was an accomplice of a principal

actor." Commonwealth v. Murphy, 884 A.2d 1228, 1234 (Pa. 2004) (citing

18 Pa.C.S. § 306).

Here, the trial court found Appellant's physical health irrelevant to rebut

the Commonwealth's theory of the case that Appellant's Father or another coconspirator fired the shot from a sniper's nest. TCO at 14-15.

The

court

opined that the "purported evidence was loaded with the potential for unfair

prejudice having the tendency to elicit sympathy for [Appellant]." Id. at 15.

Further, the court found Appellant's physical ailments "irrelevant to the issues

properly being tried before the jury and likely to unfairly prejudice the

Commonwealth." Id.

It was within the province of the trial judge to exclude Appellant's health

issues on the basis of irrelevancy and unfair prejudice. See Holmes, 547

U.S. at 326-37; see also Pa.R.E. 403. We discern no abuse of discretion in

that regard.

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Next, Appellant challenges the preclusion of evidence of the Victim's

alleged abuse and drug use. As both constitute character evidence, we

address these two claims together. Under the Pennsylvania Rules of Evidence,

character evidence is governed by Rule 404, which provides:

Rule 404. Character Evidence; Crimes or Other Acts

(a) Character Evidence.

Prohibited Uses. Evidence of a person's character or character

trait is not admissible to prove that on a particular occasion the

person acted in accordance with the character or trait.

Exceptions for a Defendant or Victim in a Criminal Case. The

following exceptions apply in a criminal case:

(A) a defendant may offer evidence of the defendant's

pertinent trait, and if the evidence is admitted, the

prosecutor may offer evidence to rebut it;

(B) subject to limitations imposed by statute a defendant

may offer evidence of an alleged victim's pertinent trait,

and if the evidence is admitted the prosecutor may:

offer evidence to rebut it; and

offer evidence of the defendant's same trait; and

(C) in a homicide case, the prosecutor may offer evidence

of the alleged victim's trait of peacefulness to rebut evidence

that the victim was the first aggressor.

Pa.R.E. 404 (emphasis added).

"[S]pecific instances of a victim's prior

conduct are admissible to show a victim's character trait only if the trait in

question is probative of an element of a crime or a defense." Commonwealth

V. Minich, 4 A.3d 1063, 1071 (Pa. Super. 2010). Under Rule 404(2)(B),

evidence of "the alleged victim's pertinent trait" is "limited to a character trait

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of the victim that is relevant to the crime or defense at issue in the case."

Minich, 4 A.3d at 1072. "[C]riminal defendants asserting self-defense may

introduce evidence of a victim's prior conduct tending to establish the victim's

violent propensities." Id..; see also Commonwealth v. Miller, 634 A.2d

614, 622 (Pa. Super. 1993) (where self-defense was properly at issue in the

case, then expert testimony regarding "battered woman syndrome" was

relevant to prove the defendant's state of mind as it relates to an element of

a theory of self-defense).

The trial court found that neither the Victim's alleged abuse nor his drug

/

use were relevant to any crime or defense asserted in the case. TCO at 7.

The court determined that the evidence was unfairly prejudicial. See id. The

court notes that Appellant had ample opportunity to effectively cross-examine

witnesses and introduce some of the Victim's abusive conduct. TCO at 9-10.

As Appellant did not raise self-defense in this case, it was within the

court's discretion to exclude evidence of the Victim's bad character traits

because such evidence was not pertinent to any crime or defense being raised.

See Minich, supra. Moreover, the trial court concluded that the Victim's drug

use "constituted nothing more than speculation." TCO at 13 (citing

Commonwealth v. Williams, 720 A.2d 678, 686 (Pa. 1998) (noting that it

was proper to exclude evidence that another person had a motive to kill

because the evidence was speculative)). Finally, the trial court found that the

probative value of the evidence did not outweigh the potential for unfair

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prejudice.

See Pa.R.E. 404(b)(2). We discern no abuse of the court's

discretion.

Next, Appellant contends that the court erroneously precluded her from

presenting so-called "dad witnesses" to testify that her Father had an

independent motive to kill the victim based on his knowledge of abuse.

Appellant's Br. at 40, 46. Defense counsel proffered that these witnesses

would have said that her Father had an independent motive to be upset with

the Victim because of the alleged domestic abuse by the Victim against

Appellant. She proposed testimony of a prison guard and inmate regarding

conversations that they had with her Father while he was in prison circa 2007,

2008, and 2009.

See N.T., 11/16/2015, at 223. Appellant sought to

introduce this testimony under the coconspirator exception to the rule against

hearsay, see Pa.R.E. 803(25)(E), or alternatively, under the state-of-mind

exception, see Pa.R.E. 803(3). See Appellant's Br. at 44.

The trial court opined that the proffered testimony was "pure hearsay"

and inadmissible. TCO at 16. We agree. "Hearsay' means a statement that

(1) the declarant does not make while testifying at the current trial or hearing;

and (2) a party offers in evidence to prove the truth of the matter asserted in

the statement." Pa.R.E. 801. "Hearsay is not admissible except as provided

by these rules, by other rules prescribed by the Pennsylvania Supreme Court,

or by statute." Pa.R.E. 802. The proffered statements are clearly hearsay

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because they were out-of-court statements and were offered to prove that her

Father had an independent motive to kill the victim.

Appellant's argument is unpersuasive. In order for the coconspirator

exception to apply, "the existence of a conspiracy between the declarant and

the defendant must be demonstrated by a preponderance of the evidence; the

statements must be shown to have been made during the course of the

conspiracy; and they must have been made in furtherance of the common

design."

Commonwealth v. Johnson, 838 A.2d 663, 674 (Pa. 2003)

(citation omitted). Thus, first and foremost, in order for this exception to

apply, Appellant would be required to concede that she participated in a

conspiracy with her Father, and therefore, his statements would be

attributable to her. There was no admission of conspiracy by Appellant.

Accordingly, the coconspirator exception is inapplicable.

Although the defense concedes that the proffered evidence was hearsay,

Appellant maintains that it should have been permitted to afford Appellant her

right to present a defense. See Appellant's Br. at 40-41. At trial, Appellant

also argued that the statements should be admitted under the state of mind

exception, which provides an exception for:

A statement of the declarant's then-existing state of mind (such

as motive, intent or plan) or emotional, sensory, or physical

condition (such as mental feeling, pain, or bodily health), but not

including a statement of memory or belief to prove the fact

remembered or believed unless it relates to the validity or terms

of the declarant's will.

Pa.R.E. 803(3). Appellant's argument is without merit.

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"An accused has a fundamental right to present evidence so long as the

evidence is relevant and not excluded by an established evidentiary rule."

Commonwealth v Ward, 605 A.2d 796, 797 (Pa. 1992) (citation omitted).

Our Rules are clear that hearsay is inadmissible unless a recognized exception

applies. See Pa.R.E. 802. Here, the trial court ruled that these statements

were hearsay and properly deemed inadmissible because they were irrelevant.

See TCO at 16-18. We agree.

In her second issue, Appellant seeks a new trial based on the trial

judge's prejudicial commentary during the testimony of defense witness Dale

Scott Jones. At issue is the following exchange:

Mr. Jones, in the year 2008 and the year 2009, did you have

Q.

a romantic relationship with [Appellant]?

I believe I had a wonderful relationship in both of those

A.

years, yes.

Q. And how often would you see [Appellant] during the course

of those years within the terms of that romantic relationship?

occasionally, I was in the Philadelphia area,

A. There's really

[Appellant] was working in that area from time to time at

hospitals, she represented nurses there. So it was occasional

dinners. [Appellant] was very involved with children and so she

was not

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--

D.A.: Your Honor, if I can interpose an objection and perhaps I

should have asked for an offer of proof. I'm not sure what

relevance this has to the underlying charges.

Here, the trial court does not specifically address whether the state of mind

exception applied to a statement of Appellant's coconspirator.

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Defense: It's very relevant, Your Honor, because the

Commonwealth has alleged that my client has suggested to

individuals if she can't have [the Victim], nobody can. This

demonstrates that she's dating other individuals that would rebut

that idea.

COURT: I don't think it necessarily rebuts anything.

Defense: I guess that's for the panel, Your Honor, respectfully.

COURT: Yes, it is for the panel, so I'll allow the questioning to go

on.

N.T., 11/18/2015, at 107-110 (emphasis added).5

Appellant contends that the judge's commentary (in bold above)

invaded the province of the jury by suggesting the proper weight to accord to

Mr. Jones' testimony, thus violating Appellant's right to a fair and impartial

trial. Appellant's Br. at 50 (relying on U.S. v. 01gm, 745 F.2d 263, 269 (3d

Cir. 1984) (considering the following factors in evaluating whether the court's

comment required a new trial: "materiality of the comment, its emphatic

overbearing nature, the efficacy of any curative instruction, and the prejudicial

effect of the comment in light of the jury instruction as a whole.")). Appellant

also complains that the court failed to issue a curative instruction to remedy

According to Appellant, "this evidence would have, at the very least,

weakened the government's motive and possibly could have destroyed it....

Although the testimony was ultimately allowed, [Appellant argues that it] was

condemned prior to its presentation by this authoritative pre-judgment from

the bench." Appellant's Br. at 50-51 (citing in support Commonwealth v.

Nicholson, 454 A.2d 581 (Pa. Super. 1982)).

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its prejudicial remark. See Id. at 58; Appellant's Reply Br. at 5. Appellant's

argument is devoid of merit.

Appellant failed to preserve this issue by making an objection. Further,

Appellant requested no curative instruction. Therefore, we find that the issue

is waived. No relief is due.

Third, Appellant contends that the court erred in overruling her objection

to the Corporal's testimony regarding the yellow, cleaning gloves recovered

from the scene of the murder. According to Appellant, this testimony

constituted an unqualified, expert opinion and exceeded the scope of

layperson testimony under P.R.E. 701. See Appellant's Br. at 6369; see also

Pa.R.E. 702. Further, Appellant claims that this admission was not harmless

error. Id. at 68 (citing in support Commonwealth v. Brennan, 696 A.2d

1201, 1203 (Pa. Super. 1997)).

Pa.R.E. 701 allows "testimony by a lay witness in the form of an opinion,

where the opinion is (1) rationally based on the perception of the witness and

(2) helpful to the determination of a fact in issue."

Commonwealth v.

Yedinak, 676 A.2d 1217, 1221 (Pa. Super. 1996). Police officers are

permitted to testify to what they observe during the course of an investigation

and how their observations led to their conclusions.

Commonwealth v Berry,

31, 2017).

A.3d

---,

See, e.g.,

2017 PA Super 282, at *3 (filed Aug.

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As an initial matter, Appellant mischaracterizes the Corporal's

testimony. Appellant baldly asserts that the Corporal testified that Appellant

used the cleaning gloves "to drag the decedent's body into the house."

Appellant's Br. at 66. Upon close inspection, however, the certified record and

the contents of the trial transcript do not support Appellant's assertion.

D.A.: Did the fact that the victim had ended up in an unnatural

position and your finding the blood, did that have any connection

in your mind?

Corporal: In my mind it does. When I see that these cleaning

gloves are away from the victim in the kitchen, the thought

obviously, were these gloves worn by anybody? Were they worn

to drag the victim in? Because his body was, from what I am

seeing was removed from the outside, because the initial blood

letting event occurred outside the residence. He is now inside.

Obviously, the bod[y] got inside somehow. So I believe he is

pulled in. So I believe the gloves... [Objection]

Id. at 16-17. Notably, the Corporal did not testify at any point that Appellant

used the yellow, cleaning gloves to drag the body.

Next, the Commonwealth asked the Corporal to explain several

photographs that he took of the crime scene. He described photographs

showing how the Victim was positioned.

See N.T., 11/11/2015, at 24. He

observed that the Victim's arms were up with his legs pointed toward the

garage.

Id.. He also described areas of pooled blood near the body. Id.. at

25. The Corporal described the photographs of the kitchen and stated his lay

opinion that things seemed out of place, with "stuff scattered about," and "we

can see on the floor, there is a yellow cleaning glove which just doesn't fit in

-

19

-

J-A26036-17

with what I am seeing throughout the residence." Id. at 26. Specifically, he

described where he found a yellow, cleaning glove on the floor of the kitchen.

Id. at 26. A second yellow glove was found in the sink. Id. at 39.

Substantively, we agree with the trial court that the Corporal's

testimony, explaining photographs that he took of the body and the gloves,

See TCO at 42. Combined with

was rationally based on his perception.

forensic expert testimony confirming Appellant's DNA on the gloves, the

Corporal's testimony may have given rise to an inference that Appellant did

drag the Victim's body into the house. However, the Corporal's testimony was

based on his experience as a police officer and what he directly observed. The

testimony was helpful for the factfinder to interpret the evidence. This does

not exceed the scope of layperson testimony under Pa.R.E. 701. See Berry,

supra, at *4 Whether or not Appellant dragged the Victim's body into the

house was a matter relating to weight and credibility properly reserved for the

jury as factfinder. See id. Accordingly, Appellant's argument is without merit.

We discern no error or abuse of discretion.

Fourth, Appellant contends that two prosecution witnesses, Derk Reed

and Brian Wawroski, violated the court's sequestration order. Appellant claims

this was a serious violation intended to shape the witness's testimony. See

Appellant's Br. at 73-74 (citing in support Commonwealth v. Smith, 346

A.2d 757, 760 (Pa. 1975)). Appellant maintains that she is entitled to a new

-

20

-

.J-A26036-17

trial because the violation influenced the jury and the outcome of the trial.

Id. at 75. We apply the following legal principles.

The selection of a remedy for the violation of a sequestration order

is within the sound discretion of the trial court. In exercising its

discretion, the trial court should consider the seriousness of the

violation, its impact on the testimony of the witness, and its

probable impact on the outcome of the trial. We will disturb the

trial court's exercise of its discretion only if there is no

reasonable ground for the action taken

Smith, 346 A.2d at 760 (internal citations omitted) (emphasis added); see

also Pa.R.E. 615.

The trial court issued a sequestration order in this case.

See N.T.,

11/10/2015 at 27. On the sixth day of trial, the Commonwealth's witness

Derk Reed testified about a conversation he had with Appellant while standing

in the end zone during a kids' football game on September 7, 2012. N.T.,

11/17/2015, at 100, 107. Reed testified as follows:

D.A.: Confine yourself to exactly what you said as you recall and

how [Appellant] was responding.

Reed: Well, she was mad. And, as I started pushing harder on

the fires.... [t]hen she started back and she said 'You know, your

home will burn, too.' And I am like 'Are you kidding me?' Then

she said, you, know, 'Bo will find you.' I am looking at her and

the thing she said to me was disturbing, for two parts. I will say

the first part of what she said and I will explain the disturbing part

when we were there. [Appellant] made the comment to me,

nastiest, craziest voice you could ever hear, she looked at me and

said "I am going to tell you right now, the last thing [the Victim]

saw when he was laying on that ground looking up was me."

And I was like in shock...

-

21

-

3-A26036-17

Id. at 108-109. On cross-examination, defense counsel questioned Reed

about the noise level at the game, suggesting that Reed misheard Appellant.

Id. at 118-119. Following cross-examination, the court adjourned for a lunch

recess.

Immediately after lunch, the Commonwealth called Brian Wawroski who

testified as follows, in relevant part:

Q. I want to turn your attention to September 7th of 2012. Do

you recall where you were that evening?

A. Yeah, I believe we were talking about the football game, yep.

Q. Where were you, Sir?

A. I was in the end zone where most of the parents and families

that know each other, we gather in the end zone. It is quieter

down there. You don't have all the band and noise and what

have you up in the stands. And it is a place that we, you know,

talk.

N.T., 11/17/2015, at 130-131 (emphasis added).

On cross-examination, defense counsel asked Wawroski if he met with

Mr. Reed during the lunch recess.

Id.. at 137. Wawroski admitted that he

walked across the street to Reed's office and briefly discussed how Reed's

testimony went, by asking him "how did it go." Id. Reed told Wawroski that

he was quizzed by the defense on the layout of the field and whether it was

quiet in the end-zone.

Id. at 138-139. Upon soliciting this testimony from

Wawroski, defense counsel moved to strike the testimony and for the court to

instruct "on the rules of sequestration that [the witness had] violated." Id. at

140. The court overruled Appellant's objection, finding that the subject of the

-

22

-

J-A26036-17

testimony was what was said by Appellant at the football field in Wawroski's

presence. Id.

In its 1925(a) opinion, the trial court acknowledged that Wawroski's

response on direct "was at least in part informed by what he discussed with

Mr. Reed prior to testifying" and indicated a violation of the court's

sequestration order had occurred. TCO at 53. However, the court found "the

influence of Mr. Reed did not change [Wawroski's] testimony in any material

way or prejudice [Appellant]." Id. at 53. Further, the court found any "impact

on the witness's testimony was limited and it had no impact on the outcome

of the trial." Id. at 54. The violation of the sequestration order "ultimately

had no material impact [on] the testimony of Mr. Wawroski[], and did not

deprive [Appellant] of a fair trial." Id. at 55.

Ultimately, the court decided not to take action based on the reasonable

ground that the violation had no material impact on the testimony and no

impact on the outcome of the trial. We agree. Because Appellant has failed

to establish that Wawroski's testimony influenced the outcome of the trial, no

relief is due. See Stevenson, supra. Accordingly, we decline to disturb the

trial court's exercise of discretion. Smith, supra.

Fifth, Appellant contends that the court erred in clarifying counts 1, 2,

6, and 14 on the criminal information sheet during jury deliberation.

Appellant's Br. at 76-84; see N.T., 11/20/2015. Appellant contends that the

court's reinstruction of the jury was improper, that the "judge's last word is

apt to be the decisive word." Appellant's Br. at 80 (citation omitted).

-

23

-

.J-A26036-17

Appellant contends that the court read the criminal information as fact, and

"removed from the jury their right to decide the facts and the verdict." Id. at

82. Appellant relies on Commonwealth v. Archambault, 290 A.2d 72, 75

(Pa. 1972), which states:

An expression by the judge that in his opinion the accused is guilty

leaves an indelible imprint on the minds of the jury. The jury is

undoubtedly going to attribute to the judge, because of his

experience in criminal cases, special expertise in determining guilt

or innocence.... The influence of the trial judge on the jury is

and jurors are ever

necessarily and properly of great weight,

watchful of the words that fall from him. Particularly in a criminal

trial, the judge's last word is apt to be the decisive word.

...

Commonwealth V. Archambault, 290 A.2d 72, 75 (Pa. 1972) (internal

citations and quotation marks omitted). Appellant's reliance is misplaced as

the trial judge never stated an opinion that Appellant was guilty.

Our review of the record reveals that the jury deliberated for over five

hours and was sent home overnight. The following day, the jury sent a

message to the judge seeking written or oral clarification about specific

counts. See N.T., 11/20/2015, at 2. Defense counsel indicated opposition to

re-reading the instruction for conspiracy or accomplice liability, which the jury

did not request. Id. at 5-6. The parties and court agreed to a re-reading of

the charges for the requested counts: first-degree murder, criminal solicitation

to commit murder, criminal solicitation to commit burglary, and terroristic

threats. See Id. at. 7-11. For each requested count, the court restated each

element that the jury must find to determine guilt. See Id.

-

24

-

1. J-A26036-17

Following the re-reading of the four charges, the district attorney asked

to convene with defense counsel at the bench for a sidebar. Id. at 13. The

district attorney stated:

D.A.: Your Honor, under the instruction for criminal homicide that

you gave, clearly it is giving the [j]ury the impression that

[Appellant] has to be present for criminal liability. As charged, we

have charged her as a principal and/or accomplice. I know we

have been down this road in the last day or so discussing this your

honor, but giving the [j]ury half the tool, [sic] it is a charged

element.

COURT: Counsel, here is what I am willing to do and you are

going to set the record on that request, I will read that one

sentence and that is it. And I'm going to note [Appellant's]

strenuous objection to that.

Id. at 13.

The court then instructed the jury as follows:

COURT: Ladies and gentlemen of the Jury, in order to avoid any

confusion about the charges in this case I am going to read the

following to you:

On or about July 1st 2012, the Defendant did intentionally

cause the death of Frank Spencer at 20 Fairview Drive, Hemlock

Township, Columbia County. The Defendant having acted as a

principal or an accomplice in bringing about [the Victim's] death

by murder. That is all I have to say on that issue. Again, I hope

it clarif[ies] the issues for you.

Defense Counsel: Your Honor, I would ask, that that is simply the

allegation.

COURT: Excuse me, that is the allegation. Thank you, Counsel.

You are absolutely right. That is only the allegation and as in the

instruction I gave you before, charges are only allegations. They

are not facts in this case unless you find from the evidence the

facts that would support such an allegation to reach your

conclusions. Thank you, Counsel. I appreciate that very much to

-

25

-

4.

3-A26036-17

a clarify that for the Jury [sic]. Thank you. Would you pl[e]ase

take the Jury out to convene their deliberations?

N.T., 11/19/2015, at 14. Thereafter, Appellant moved for a mistrial, claiming

that there was allegedly insurmountable prejudice resulting from re-reading

the allegations to the jury when the jury did not ask for that particular

information. Id. at 15-16. The court denied Appellant's motion, noting that

the jury was given accurate and specific instructions that the charges were

allegations for the jury to decide. Id. at 15-17. Later that morning, the jury

returned a verdict of guilty on all counts.

Here, Appellant argues that the court proceeded to read the allegations

from the criminal information sheet without specifying that they were merely

allegations. Appellant's Reply Br. at 8. However, upon review of the record,

we note that Appellant requested a curative instruction immediately. In the

section quoted above, the trial court clearly clarified to the jury that it was

reading from the Commonwealth's allegations.

Appellant suggests that the judge's words influenced the outcome of the

trial. Appellant's Br. at 83-84. However, as noted by the court, the "record

plainly indicates that the jury was instructed adequately and in accordance

with the law." TCO at 47. Further, the court reminded the jury that it was

their duty to "find from the evidence the facts that would support such an

allegation to reach [its] conclusions." See N.T. at 14. Accordingly, we discern

no error. No relief is due.

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'I.

COMMONWEALTH OF

PENNSYLVANIA

IN THE COURT OF COMMON PLEAS

OF THE 261H JUDICIAL DISTRICT,

COLUMBIA COUNTY BRANCH, PA

vs.

MARIA SANUTTI -SPENCER

Defendant

CRIMINAL DIVISION

NO. 754 of 2014

By the Honorable MICHAEL DUNLAVEY

I..

FACTS AND PROCEDURAL HISTORY

This matter comes before the Court pursuant to a Criminal Information filed against

the above named Defendant by the Attorney General of Pennsylvania on September

25, 2014. A twenty-six (26) count Amended Information was filedon September 24,

2015, charging the Defendant with Criminal Homicide, 18 P.A. §2501, Criminal

Solicitation to Commit Homicide, 18 P.A. §902(a)(11 02(c)); Criminal Conspiracy 18

P.A. §903(a)(1)-(1102(c)); Burglary. 18 P.A. §3502(a)(2); Receiving Stolen Property, 18

P.A. §3925(a); Criminal Solicitation to Commit Burglary, 18 P.A. §902(a)(3502(a)(2)):

Arson 18 P.A. §3301(a)(1)(ii); Criminal Solicitation to Commit Arson

§902(a)(3301 (a)(1)); Attempted Homicide 18 P.A. §901(a)/2501-(1102(c)); Terroristic

Threats 18 P.A. §2706(a)(1) and Perjury 18 P.A. §4902(a).

Defendant filed a Petition for Writ of Habeas Corpus on October 30, 2014. The

Honorable Senior Judge Brendan J. Vanston scheduled a hearing by Order on

November 3, 2014. Subsequently, on Motion of the Commonwealth, the Court

rescheduled argument on the matters raised in Defendant's Motion of October 30, 2014

for a hearing on December 17, 2014. The Commonwealth filed their answer to

Defendant's Motion on December 15, 2014 and a hearing was conducted before the

1

Honorable Judge Vanston on December 17, 2015. Defendant's Motion for Habeas relief

was denied by Order dated January 5, 2015,

On February 20, 2015 the Court entered a scheduling Order, which in pertinent

part Ordered that Defendant's Omnibus Pretrial Motion shall be filed no later than March

2, 2015, and directed Commonwealth to respond thereto no later than April, 3, 2015. A

Hearing on the anticipated motions was scheduled for June 17, 2015. Subsequently,

responding to a Defense request, the Court Ordered that Defendant's Omnibus Motion

deadline was extended to March 9, 2015.1

On March 9, 2015 the Defendant filed her Omnibus Pre-Trial Motion raising the

following issues: Motion to Quash Indictment; Motion for Change of Venue; Motion for

Change of Venire; Motion to Preclude Hearsay Testimony; Motion to Sever Counts;

Motion to Compel Discovery. Judge Vanston, by Order dated March 9, 2015 reaffirmed

his Order of February 20, 2015, and scheduled argument on the Defendant's Omnibus

Motion for June 17, 2015. The Commonwealth requested additional time to file their

response to the Defendant's Motions and sought a Continuance of the hearing

scheduled to occur on June 17, 2015. On March 31, 2015 the Court granted the

Commonwealth's request to extend the time to file their response and denied their

Order of Judge Brendan J. Vanston dated 2-26-2015" it is Ordered that the time In which to file the Defendant's

Omnibus Pre-Trial Motion is extended to March 9, 2015."

2

request for a Continuance,2 The Commonwealth filed their Answer on April 17, 2015

and a series of ancillary motions followed.

The Trial Court heard argument on the aforementioned pre-trial motions on June 17,

2015. Following that hearing, a review of the record and the briefs of the parties, on

June 22, 2015, Judge Vanston issued a series of Orders as follows: Order Denying

Defendant's Motion for Severance; Order denying Defendant's Motions for a change of

Venue or Venire without prejudice; Order Denying Defendant's Motion to Preclude

Hearsay Testimony without prejudice to file Motions in.Limne approximately six (6)

weeks prior to jury selection; Order Denying Defendant's Motion to Compel Discovery;

Order Denying Bail; and an Order Denying Defendant's Motion to Quash the Indictment.

The Court Ordered that Jury Selection be rescheduled to November 10, 2015 in an

Order dated June 25, 2015. A subsequent Order of June 30, 2015, recused the

presiding Judge and requested another senior Judge be appointed to preside over the

matter.4

On September 22, 2015 the Commonwealth filed Motions in Limine to "exclude

irrelevant evidence" and to seek a ruling from the Court relative to "statements made by

Frank Spencer prior to his murder." 5 A hearing was conducted on September 24,2015

and the Court deferred ruling on the evidence and proposed to conduct another Pre-

2

The Commonwealth requested an additional "Motion for One Business Day Extension" to file their response to

Defendant' brief which was granted by Order dated April 10, 2015. Another subsequent request was granted and

Commonwealth's Answer was Ordered to be field no later than April 17, 2015.

Defendant filed a "Notice of Alibi Defense" on May 22, 2015 and a "Motion to Set Bail" on June 12, 2015.

Argument on Defendant's Motion for bail was scheduled for June 17, 2015. The Commonwealth filed a Reciprocal

Notice of Witnesses on and their Answer for Defendant's bail petition on June 12, 2015.

The Honorable Michael E. Dunlavey was appointed to preside over this matter following the recusal of Judge

Brendan J.Vanston.

Commonwealth's Motions filed September 22, 2015.

'

Trial Conference. The Court subsequently scheduled argument on the Commonwealth's

Motions and the Defendant's anticipated responses thereto to be conducted on October

23, 2015.

On October, 5, 2015, the Defendant filed: Proposed Points for Charge; Proposed

Voir Dire; a Motion to Limit Introduction and Publishing to the Jury of Photographs or

Videos; a Motion in Limineto Preclude a phone call recorded on February 4, 2010; a

reply to the Commonwealth's Notice to Admit Evidence pursuant to Pa. R. Evid. 404(b);

and the Defendant's responses to the Commonwealth's Motions in Limine filed on

September 22, 2015.

The Commonwealth filed a series of responses to the Defendant's October 5, 2015

filings on October 13, 2015. Subsequently, on October 14, 2015, Defendant filed

additional Motions to Compel Discovery; Continue Trial; Extend the time to file Pre-Trial

Motions and a supplemental reply to the Commonwealth's Motion to Exclude "irrelevant

evidence." The Commonwealth responded to Defendant's October 14, 2015 pleadings

on October 21, 2015. Defendant's Motion to Continue trial was Denied without

prej ud ice 6

Following a careful review of the record and the conduct of a hearing the Court

issued a series of. Orders dated November 3, 2015. The Orders of November 3, 2015

precluded the Defendant from introducing evidence of Frank Spencer's alleged drug

abuse and violent propensities; Denied the Defendant's Motion for a Continuance;

Denied Defendant's Motion in Linilne to Preclude the admission of the February 4, 2010

I Order dated November 3, 2015.

4

recorded phone call from co-conspira

tor and Denied the Defendant's Motion

to preclude the Defendant's statement,

that additional discovery was recently

Motion for an extension of time to file

in Limine

"Life is going to be good now." The Cou

rt, noting

provided to the Defense, Granted Def

endant's

pre-trial motions and noted no objectio

ns to the

photographs that were reviewed by the

that the letter sent by the decedent to

court and parties.7 The Court wen

t on to Order

President Judge Thomas A. James and

HonorableGary E. Norton, then Colum

the

bia County District Attorney, were adm

issible on

the issue of the Defendant's fear.

A jury trial commenced on November

9, 2015, and the jury returned their verd

ict on

November 20, 2015, when the Defend

ant, Maria Sanutti-Spencer, was foun

d guilty

beyond a reasonable doubt on all twe

nty-six (26) counts. A Pre-Sentence Inve

stigation

(PSI) was Ordered and to be complet

ed by the Columbia County Adult Pro

bation and

Parole Department prior to sentencing.

On December 18, 2015, following the

a hearing, the Defendant was sentenc

conduct of

ed to life in prison without the possibi

on Count One, Criminal Homicide in

lity of parole

the first degree. Counts two (2), six (6)

(13) merged for sentencing purposes.

and thirteen

On the remaining Counts the Defend

ant was

sentenced to an aggregate consecutiv

e period if incarceration of a minimum

of two

hundred and fifty months (250) to a max

imu

m of six hundred and ninety-six (696)

months in a state correctional facility.

8

On January 11, 2016, the Defendant,

Appeal. By Order dated February 3, 201

through her counsel, filed a Notice of

6, this Court directed the Defendant to

file her

Orders dated November 3, 2015.

The Sentences imposed for counts seve

n (7); eleven (11); twelve (12); and coun

ts eighteen (18) through twentysix (26) were Ordered to run concurren

tly with the sentences previously Impo

sed.

8

5

ant to Pa. R.A.P. 1925(b)

Concise Statement of Errors Complained of on Appeal pursu

ane, Esquire entered

within twenty-one (21) days. On February 16, 2016, Justin McSh

his appearance for the Defendant and contemporaneously he

sought by written motion

By order dated February

an extension of time to file the Defendant's 1925(b) statement.

ise Statement.

24, 2016 we granted Defendant additional time to file her Conc

ssing the

On March 18, 2016 the Superior Court entered an Order dismi

Defendant's appeal, which was docketed at 150 MDA 2016,

finding that she failed to

comply with Pa. R.A.P. 3517. The Defendant filed a motion

with this Court seeking

leave to file her appeal Nunc Pro Tune on May 5, 2016. On

May 5, 2016 we Granted the

Defendant's Motion to Appeal' Nunc Pro Tune and Ordered

that the Defendant shall be

deemed to have timely filed a Notice of Appeal if it is received,

filed and docketed by no

later than June 1, 2016;

The Defendant, through her new Appellate Counsel, filed a

Notice of Appeal on

dant to file her Concise

. On May 31, 2016, we Ordered the Defen

May 12, 2016.

Statement of Errors Complained of on Appeal pursuant to Pa.

twenty one (21) days. On June 30, 2016, Defendant filed her

Statement pursuant to Pa. R.A.P. 1925(b). For- the reasons

R.A.P. 1925(b) within

counseled Concise

set forth below, the

nce affirmed.

Defendant's appeal should be denied, and the verdict and sente

II.

LAW AND DISCUSSION

s raised for

Rule 1925 is intended to aid the trial court in identifying the issue

meaningful review. Pa. R.A.P. 1925, The Defendant's Concise

Statement filed pursuant

to Pa. R.A.P. 1925(b) raises more

than forty allegations of error.9 The

errors limits this court's opportunity

volume of alleged

to meaningfully review and discus

s Defendant's

claims. We expect that Defendan

t's counsel will not address each and

every one of

these issues in the Appellant's brie

f. Given the volume of the Defendan

and the vague and sometimes rep

t's complaints•

etitive nature her not so Concise Sta

not discuss the issues seriatim but

tement we will

instead we will organize our analysi

s in what we

believe is a logical and efficient ma

nner. Out of necessity, we adopt App

ellant's

cumbersome numbering scheme.

4.1,1

Appellant first complains that the

trial court erred in excluding eviden

Spencer's abusive character, sub

ce of Frank

mitting that said evidence would reb

ut the evidence

supporting the claim that he was afra

id of the Defendant. We disagree.

Following the conduct of a hearing

and

entered an Order granting Comm

we

onwealth's Motion in Limine to exc

alleged abusive character of Frank

irrelevant and unfairly prejudicial.

a review of the record in this matter

lude evidence of the

Spencer finding the proffered evid

ence cit be both

It has been held by our Pennsylvan

ia Supreme Court

9 See Commonwealth v. Jord

an, 2015 WL 7077229 (No. 144 MDA

2015 "(T)he mere multiplication of

claims ad

ining appellate relief. To the contrary

it is often counter-productive: Whe

nI

read an appellant's brief that contains

ten or twelve points, a presumption

arises that there is no merit to any

of

them. I do not say that It Is an irreb

uttable presumption, but It is a pres

umption that reduces the effective

ness of

appellate advocacy. Appellate advo

cacy Is measured by effectiveness, not

loquaciousness." see also

Commonwealth v. Snyder, 870 A.2d

336, 340 (Pa.Super.2005) ("The effec

tiveness of appellate advocacy may

suffer

when counsel raises numerous issu

es, to the point where a presumption

arises that there Is no merit to any

of

them.").

infinitum is of no direct benefit in obta

7

is within the sound discretion of the

that "it is well settled that the admission of evidence

Trial Court." Commonwealth v. Collins, 888 A.2d

564, 577 (Pa. 2005). A trial court's

binding at trial," unless the

ruling on a motion in limine is "final, conclusive and

mon

Commonwealth files an interlocutory appeal. Com

wealth v. Padilla, 923 A.2d 1189,

court's ruling on motions in limine is

(Pa. Super. 2007). The standard of review for a trial

A.3d 988 (Pa. 2012) An

abuse of discretion. Commonwealth v. Rosen, 42

abuse of

ment. Rather, the Defendant must

discretion is not shown merely by an error in judg

establish, by appropriate reference to the record,

that the sentencing judge ignored or

ons of partiality, prejudice, bias, or

misapplied the law, exercised his judgment for reas

ion. Commonwealth v. Zurburi,

ill-will, or arrived at a manifestly unreasonable decis

937 A.2d 1131 (Pa. Super. 2007).

ed have. a fundamentairight to

We further note that though a defendant does inde

Such evidence is admissible

lute.

present defensive evidence, that right is not abso

provided that it is relevant and not excluded by an

established evidentiary rule."

A.2d 54,

Commonwealth v. Seibert, 2002 PA Super 15, 799

67 (Pa. Super. 2002)

also Chambers v. Mississippi, 410

(internal quotation marks and citation Omitted). See

Our Pennsylvania Supreme Court

U.S. 284,93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973).

right to present evidence "must

has observed that an accused exercising his or her

nce... ." Commonwealth v.

comply with established rules of procedure and evide

7) (quoting Chambers, 410 U.S. at

Bracero, 515 Pa. 355, 363, 528 A.2d 936, 939 (198

302).

nent trait exculpates the

The character of a victim is only relevant when perti

Defendant Commonwealth v. May, 587 Pa. 184, 898

A.2d 559 (Pa 2006). See also

Commonwealth v. Minich, 4 A.3d 1063 (Pa Super. 2010) In Commonwealth v. Beck,

485 Pa. 475, 402 A.2d 1371 (1979), our Pennsylvania Supreme Court explained

"...

[P]rior convictions involving aggression by the victim of a homicide may be introduced

into evidence by a defendant where a claim of self-defense is made for either one of two

purposes: "(1) to corroborate his alleged knowledge of the victim's quarrelsome and

violent character to show that the defendant reasonably believed that his life was in

danger; or (2) to prove the alleged violent propensities of the victim to show that the

victim was in fact the aggressor." Commonwealth v. Beck, 485 Pa. 475, 402 A.2d 1371

(1979)

Given that the Defendant did not raise self-defense as a justification, we see no

relevance to Defendant's assertions that the victim was abusive towards her or had bad

character. We also note that the Commonwealth's theory of the case was that the victim

was ambushed having been shot from a "sniper's nest" and.executed as he lie on the

ground. Under these circumstances, the alleged abusive character of Frank Spencer

was not relevant to the case and this evidence was properly excluded.10 Accordingly,

the Defendant's appeal must fail.

Defendant in a sub part to her concise statement went

to claim that the door

to evidence of Frank Spencer's abusive character was opened by the witnesses Yodock

and Mix. We disagree.

-.

The Defendant's counsel had ample opportunity to effectively cross examine Mr.

Yodock regarding the "apology" and indeed some evidence of Frank Spencer's abusive

11 Order dated November 3, 2015 responsive to Commonwealth's Motion in Liniine

to exclude

irrelevant evidence. Frank Spencer's purported violent propensities were ruled inadmissible.

conduct, directed toward the Defendant, was presented to the jury. Defense counsels

very first question to Mr. Yodock was about Frank Spencer punching the Defendant.

(N,T. Trial Vol. II p. 205-206) We allowed Defense counsel to pursue a line of

questioning which introduced evidence that Frank Spencer hit the Defendant after the

witness opened the door to that line of questioning in one of his responses on direct

I

examination. (NT. Vol. II p. 204-206) Nonetheless, Mr. Yodock's response did not open

the door so wide that the Defendant became entitled to present any evidence of the

Defendant's bad character. For the aforementioned reasons, Defendant's appeal fails.

We are similarly unpersuaded that the testimony of.Ms. Lee Mix opened the door

to evidence of the victim's alleged abuse and bad character. The relevant testimony of

Lee Mix was as follows:

Q. Now, I want you to turn your attention to a later time period after you

left the Human Relations Commission, did you ever have occasion to have

• contact with the Defendant at your home?

•

A. Yes, the Defendant came to my house I believe it was 2007 because

I sold my house the year after so it would have been probably 2007. I was

outside in the yard and she pulled up and we sat but on the porch and talked

for a while. And I had been—I was the equal employment opportunity director

for the board for the parole board and she came to the house and asked me I

was working for the parole board and could I get her dad out on parole early.

(N.T. Vol. IV p.65)

•

The issue came up again at the conclusion of Lee Mix's direct examination.

Q. I want to turn your attention now to July of 2012, did you ever

learn about something in the media at that time?.

•

A. Yes, I saw that in the in the news that Mr. Spencer was found

dead.

Q. As a result of hearing that news, what did you do at that point?

A. I talked to two co-workers of mine and I sent Detective Williams

an e-mail to the barracks commander in Bloomsburg, the PSP

commander, 'cause I didn't know if there was an investigation, if there was

10

I

--

• who was handling it, and I detailed what I just told you about the

Defendant coming to my house and asking me to get her father out 'cause

• it just seemed really strange.

Defense counsel, citing the rule of completeness, asserted that the witness

opened the door to evidence of domestic violence allegations against Mr. Spencer

because at the preliminary hearing the witness testified that the Defendant told her that

if her father was out of jail the domestic violence in the household would stop (N.T. Vol.

-

IV p. 67) We are not aware of any independent doctrine explaining the rule of

completeness apart from Pennsylvania Rule of Evidence 106 which states as follows:

If a party introduces all or part of a writing or recorded statement, an

adverse party may require the introduction, at that time, of any other part-or any other writing or recorded statement--that in fairness ought to be

considered at the same time. Pa.R.E. 106

Clearly, the testimony of Lee Mix did not implicate this rule as no writing or

recorded statement was introduced. We look instead to Pa.-R. Evid. 611(b) and

conclude without hesitation that the line of questioning defense counsel sought to

pursue was outside the scope of direct examination. Cross examination of witnesses is

limited to matters brought out on direct examination, with exception to questions could

demonstrate bias on the part of the witness. Commonwealth v. Katsafanas, 318 Pa.

Super. 143, 464 A.2d 1270 (1983).

The trial court has discretion to limit the scope of cross examination and rulings

regarding same may not be reversed absent a showing that the court abused its

discretion. Commonwealth v. Gibson, 547 Pa. 71, 88; 688 A.2d 1152, 1160, cert denied

522 U.S. 948 (1997). Additionally, it is not an abuse of discretion to preclude cross

examination that would elicit inadmissibleevidence. Commonwealth v. Ramtahal, 33

• A.3d 602 (2010). It appeared to the Court that the Defendant was attempting to present

11

her own, testimony through cross examination of Commonwealth witnesses. The

witness remained under subpoena and was available to the Defendant for her case in

chief,11 For the aforementioned reasons, the Defendant's appeal must fail.

Three of the Defendant's issues are variations on the same issue We address

these issues together to enhance clarity. Appellant complains as follows:

4.1.2 The Court erroneously excluded evidence of the DEA and FBI investigation

into Frank Spencer's drug usage and dealing. This evidence was part and parcel of Ms.

Sanutti-Spencer's defense. It provides alternative theories of the murder.

4.1.4 The Court erroneously excluded evidence of evidence of crack pipe outside

Frank Spencer's home, which would have given credence to alternative suspects and•

theories of the murder related to his drug use and drug dealing.

4.3.3 The Court erred in excluding the 404(b) evidence of Frank Spencer,

specifically, that Frank Spencer had been investigated by. the FBI and DEA for drug

usage and dealing.

-

Following the conduct of a hearing on pre-trial evidentiary matters, evidence

relative to alleged drug dealing and drug use was deemed inadmissible and remote in

time pursuant to an Order dated November 3, 2015. We found the proffered evidence

irrelevant in part because the Commonwealth represented that no drugs were found in

the body of Mr. Spencer or inside his home. The Defendant failed to demonstrate that

the purported evidence of Frank Spencer's alleged drug dealing and or usage was

Mix was not recalled by the Defendant in her case in chief.

12

I

relevant and this purported evidence was correctly deemed

inadmissible. Further, the

mostly speculative evidence of drug use and dealing would

have prejudiced the

Commonwealth and confused the jury.

A trial court may exclude evidence that is irrelevant tothe issue

s presented.

Evidence is not relevant "unless the inference sought to be

raised by it bears upon a

matter in issue and renders the desired inference more proba

ble than it would be

without the evidence." Commonwealth v. Valleio, 532 Pa. 558,

1992). Relevant, evidence may, however, be excluded if its

616 A.2d 974, 976 (Pa.

probative value is

outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the

jury. Pa.R.E. 403.

Here, by Order dated November 3, 2015, we declined to allow

the Defendant to

present evidence of the victim's alleged drug use and or dealin

g finding that such

evidence had no bearing on whether the Defendant and her

father murdered him. The

Defendant's assertions relative to the victim and drug use const

ituted nothing more than

speculation. See Commonwealth v. Williams, 554 Pa. 1, 720

(holding that the trial court properly excluded evidence that

A.2d 679, 686 (Pa. 1998)

other persons had a motive

to kill the victims because, inter a/ia, such evidence was specu

lative); Commonwealth v.

Cook, 544 Pa. 361, 676 A.2d 639, 647 (Pa. 1996) (holding that

the trial court properly

excluded evidence relating to a purported additional suspect

where

speculative and had little or no probative value). Accordingly,

13

the evidence was

Defendant's appeal fails.

4,1.3

The Defendant next alleges that it was error to exclude evidence relative to the

health problems of the Defendant.

"Relevant evidence means evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence." Commonwealth v. Mitchell, 588

Pa. 19, 902 A.2d 430, 465 (Pa. 2006). See also Pa. R.E. 401. Evidence is relevant if it

logically tends to establish a material faàt in the case or tends to support a reasonable

inference regarding a material fact. Taliferro v. Johns-Manville Corp., 617 A.2d 769,

803 Pa. Super. Ct. 1992). Pennsylvania Rule of Evidence 403 provides that evidence,

although relevant, may be excluded if its probative value is outweighed by the danger of

unfavir prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time or needless presentation of cumulative evidence. Pa.R.E.

403. Evidence is only admissible where the probative value of the evidence outweighs

its prejudicial impact. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

Determinations of admissibility will not be reversed on appeal absent a clear

abuse of discretion. Commonwealth v. Chmiel, 738 A.2d 406, 414 (1999) cert. denied.

528 US 1131(2000). An abuse of discretion is not merely an error of judgment;

however, if in reaching a conclusion, the court overrides or misapplies the law, or the

judgment exercised is shown by the record to be manifestly unreasonable or the

product of partiality, prejudice, bias, or ill will, discretion has been abused. Estate of

Sacehetti v. Sacchetti, 2015 PA Super 240, 128 A.3d 273 (2015).

14

First, the Commonwealth's theory of the case Was that the Defendant's father, or

another unknown co-conspirator, fired the rifle shot from the sniper's nest overloo

king

the front door of Mr. Spencer. He was given a coup de grace with a .357 magnum

pistol

on his front porch. (NT. Vol. II p. 238 lines 2-16) A mixture of DNA from the

Defendant's father, Mr. Rocco Franklin, and another unidentified party was collecte

d

from the crime scene. (N.T. Vol. III p. 153) We deemed evidence related to the

Defendant's health inadmissible because such evidence would have nothing to rebut

the prosecution's argument. Furthermore, we found that the purported evidence was

loaded with the potential for unfair prejUdice having the tendency to elicit sympathy

for

the Defendant in the minds of the jurors. For the foregoing reasons, the evidence

Defendant sought to introduce at trial was irrelevant to the issues properly being tried

before the jury and likely to unfairly prejudice the Commonwealth. Accordingly, the

Defendant's appeal must fail.

Additionally, the Appellant declines to point to the record to identify what

evidence she wished to admit at trial. A Concise Statement must "properly specify

the

error to be addressed on appeal." Commonwealth v. Hansley, 24 A.3d 410, (Pa. Super.

2011) quoting Commonwealth v. Dowling, 778A.2d 683 (Pa. Super. 2001).

We

endeavor to address each of the Defendant's issues in a considered and meaningful

way. Nonetheless, some of the Defendant's issues are stated so generally that they

defy meaningful review and are therefore waived.

Pa. R.A.P. 1 925(b)(4)(ii) provides that an appellant's statement of matters

complained of [on appeal] must "concisely identify each ruling or error that appella

nt

intends to challenge with sufficient detail to identify all pertinent issues for the judge."

15

Pa.R.A.P. 1925(b)(4)(vii) provides that all issues not raised in accordance with

subsection (b) of this rule are waived. "When.a court has to guess what issues an

appellant is appealing, that is not enough for meaningful review. Commonwealth v.

Butler, 756 A.2d 55, 57 (Pa. Super 2000) See also: Giles v. Douglass, 2000 Pa. Super

219, 757 A.2d 962, 963 (Pa; Super. 2000). A vague Co' ncise Statement is equivalent to

no concise statement at all. Commonwealth v. Dowling, 778 A.2d 683 (Pa. Super.

2001).

Thus, we find this allegation of error is both meritless and likely waived.

Accordingly, the Defendant's Appeal must fail.

4.1.5

Appellant, citing Pa.R.E. 803(3) and referring to a proffer relative to the Batuik

brothers and a Mr. Ulrich, complains- as follows: "The Court erroneously excluded

evidence that Anthony Rocco Franklin had the intent and motive to kill Frank Spencer."

At trial the Defendant's counsel proffered that the three aforementioned

witnesses would testify that at some time in 2007 and or 2008, prior to Anthony Rocco

Franklin's release from SCI Coal Township, Mr. Franklin said that he planned to kill

Frank Spencer. (NT. Vol. VI p. 223) Counsel argued that the statements were

evidence of Anthony Rocco Franklin's state of mind and admissible pursuant to Pa.R.E,.

'

803(3) (N .T. Vol VII p 4) We disagree L

-

'-

\IViJ('

\i

J

i.

-)

The Defendant's proffer was pure hearsay and was properly deemed

inadmissible. Pennsylvania Rule of Evidence 802 provides that, "Hearsay is not

admissible except as provided by these rules, by other rules prescribed by the

16

'.

Pennsylvania Supreme Court, or -by statute." Pa R.E. 802. Hearsay is an out-of-court

statement offered to prove the truth of the matter asserted in the statement.

Commonwealth v. Laich, 566 Pa. 19, 25, 777 A.2d 1057, 1060 (2001) citing

Commonwealth v. Puksar, 559 Pa. 358, 740 A.2d 219, 225 (1999), cert. denied, 531

U.S. 829, 121 S.Ct. 79, 148 L.Ed.2d 42 (2000). Her argument that this proffered

hearsay evidence could be entered pursuant to the co-conspirator exception to the

general rule against hearsay also fails. See Pa. R.E. 803(25)(E). We note that the party

seeking to offer hearsay bears the burden of proof and must persuade the court that the

hearsay statement is admissible against the party opponent. Harris v. Toys "R" UsPenn, Inc., 880 A.2d 1270, Super.2005, appeal denied 895 A.2d 1262, 586 Pa. 770.

"The coconspirator exception to the hearsay rule requires: (1) the existence of a

conspiracy between the declarant and the defendant must be demonstrated by a

preponderance of the evidence, (2) the statements must be shown to have been made

during the course of the conspiracy, and (3) they must have been made in furtherance

of the common design." Commonwealth v. Johnson, 838 A.2d 663, 576 Pa. 23,

Sup.2003, reargument denied, certiorari denied 125 S.Ct. 617, 543 U.S. 1008, 160

L.Ed.2d 471. See also Pa. R. E. 803(25)(E)

In the present case, the proffered, statements were alleged to have been made in

2007 and or 2008. (N.T. Vol. VI p. 223) Critically, the conspiracy as alleged, then later

proven beyond a reasonable doubt, began some time just prior to the October 31, 2009

burglary of Frank Spencer's residence. Thus, the statements made by him in 2007 and

2008 clearly were not made during or in furtherance of the conspiracy. The Defendant

attempted to argue on the one hand that her Father's statement comes in under the co17

conspirator exception while denying that there ever was a conspiracy suggesting that

her Father acted on his own. The Defendant's counsel continually pointed to an empty

chair as a defense and also presented a nearly fifty year old game violation. The jury

was unpersuaded. Appellant's complaint of error is without merit and her appeal fails.

4.2

Defendant complains that 'the court committed reversible error when the trial

judge stated, in open court, and in front of the jury that he believes Dale Scotts Jones's

testimony does not rebut the Commonwealth's theory that if the Defendant cannot not

have Frank Spencer than no one could." (Appellant's 1925b Statement at 4.2) We note

that the Court's comment was an inquiry responsive to the arguments of counsel

relative to the relevance and admissibility of the witness's testimony. (N.T, Vol. VIII

p.109-110)

Counsel's offer of proof for the witness was as follows: "It's very relevant, your

honor, because the Commonwealth has alleged that my client has suggested to

individuals if she can't have Frank Spencer, nobody can. This demonstrates that she is

dating other individuals that would rebut that idea." Ld.

the Court questioned

counsel's argument that the proffered testimony was rebuttal evidence, the Court

allowed counsel to develop the witness's testimony after agreeing, "Yes, it is for the

panel so I'll allow the questioning to go on." (NT. Vol. VIII p. 110) The Court was only•

agreeing with counsel not opining on the Defendant's statement.

This allegation of error is wholly without merit. The trial judge may comment on

evidence where such comment is helpful to the jury's understanding of the use of

18

I

Y

evidence. Pa. R. E. 103(b). More importantly, the Court instructed the jury

at the outset

of the trial as to what they are to consider as evidence. (N.T. Vol. I p. 8-9)

(N.T. Vol. Il p.

35) The. Court again so instructed the jury at the conclusion of the trial.

(N.T. Vol. IX p. 5

lines 12-18) The jury is presumed to follow the Court's instructions. Comm

onwealth v.

Reid, 627 Pa. 151, 202,.99 A.3d 470, 501 (2014) citing Commonwealth

611 Pa, 481, 28 A.3d 868 (2011). The Appellant offers no argument

v. Travaglia,

or evidence that the

jury disregarded the Court's instructions. Thus, the Defendant's allegation

of error is

meritless.

4,3

The court erred in multiple evidentiary rulings:

4.3.1

The Defendant next alleges that it was error to admit "hearsay testimony

regarding statements allegedly made by Frank Spencer and letters written

Spencer, violating both the rules of evidence and the Defendant's right

by Frank

to confrontation."

By Order dated November 3, 2015, the Court ruled that the letters of the

President Judge James.and District Attorney Norton were admissible on

victim to

the issue of the

decedent's fear. Statements that a decedent feared the defendant are admiss

ible to

demonstrate ill will and malice. Commonwealth v. Luster, 71 A.3d 1029,

1041, (Pa.

Super) App. denied 83 A.3d 414 (Pa. 2013) See also, Commonwealth v.

Brown, 538

Pa. 410, 648 A.2d 1177 (Pa. 1994), Commonwealth v. Puksar, 559 Pa.

358, 368, 740

A.2d 21.9, 225, (Pa. 1999) The evidence presented at trial through these

represented Mr. Spencer's fear and state of mind during the campaign

19

letters fairly

of harassment

and intimidation visited upon him by the Defendant and her co-conspirator, Mr. Anthony

Rocco Franklin.

Hearsay is an out-of-court statement offered to prove the truth of the matter

asserted.-Commonwealth v. Puksar, 740 A.2d 219, 225, (Pa. 1999) citing

Commonwealth v. Griffin, 511-Pa. 553, 515 A.2d 865, 870 (Pa. 1986). Pa rule of

evidence 803(3) provides an exception to the exclusion under the general hearsay rules

for statements relative to the declararit's state of mind. Pa. R. Evid 803(3). In the•

present case, Mr. Spencer's statements were not offered for their truth and

consequently they are not hearsay. When an extrajudicial statement is offered for a

purpose other than proving the truth of its contents, it is not hearsay and is not

excludable under the hearsay rule. Id.

Similarly, the Defendant's right to confrontation is not impaired since she was the

object of the statements and made personal statements consistent with the decedent's

fear of her and her father.

4.3.2

Appellant alleges that the Court erred in admitting 404(b) evidence relating to

prior arrests and summons issued to the Defendant.

Pennsylvania Rule of Evidence 404(b), governing evidence of other crimes,

wrongs or acts, provides as follows:

(b) Other crimes, wrongs, or acts.

(1) Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show

action in conformity therewith.

20

Evidence of other crimes, wrongs, or acts may be

admitted for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity or

absence of mistake or accident.

Evidence of other crimes, wrongs, or acts proffered

under subsection (b)(2) of this rule may be admitted in a

criminal case only upon a showing that the probative value of

the evidence outweighs its potential for prejudice.

In criminal cases, the prosecution shall provide

reasonable notice in advance of trial, or during trial if the court

excuses pretrial notice on good cause shown, of the general

nature of any such evidence it intends to introduce at trial.

Pa. R.E. 404(b)(2) authorizes the admission of evidence of an accused's prior

bad acts where the proffered evidence is offered to prove motive, intent, plan,

knowledge, identity, or absence of mistake. Pa.R.E.404(b). Such evidence of prior bad

acts may not be admitted only to demonstrate that the defendant is a person of bad

character. Commonwealth v. Davis, 737 A.2d 792, 706 (Pa. Super. 1999). Prior bad

acts may however be admitted to provide context to the case at bar. In Commonwealth

v. Powell, the Supreme Court of Pennsylvania upheld the trial court which allowed

evidence of the defendant's abuse of a child reasoning that said evidence was a part of

a chain or sequence of events that formed the history of the case. Commonwealth v.

-.

Powell, 956 A2d 406, 419-420 (Pa. 2008). (See also Commonwealth v. Sherwood, 892

A.2d 483 (Pa. 2009) A case in which prior acts of abuse were relevant to establish the

chain of events which culminated in a fatal beating.) "Evidence of bad acts is also

admissible where the particular crime or act was part of a chain, sequence or natural

development of events forming the history of the case." Commonwealth. v. Passmore,

2004 Pa Super 336, 857 A.2d 679 (Pa 2004).

21

In the instant case the Defendant was accused of the following relevant crimes:

burglarizing the home of the decedent in October of 2009; arson and conspiracy to

commit same for burning down the residence of the decedent in January of 2010; arson

and conspiracy to commit same for burning down the occupied residence of the

decedent's then paramour, Ms. Julie Dent, in August of 2010; the attempted homicide of

Ms. Dent for that same incident; and in July of 2012 the homicide of the decedent, Mr.

Frank Spencer and terroristic threats made after the death of Frank Spencer which were

directed toward his friend Derk Reed, alluding to shooting Reed and purportedly stating

that "your house will burn too Reed." (Amended Information September 24, 2015.)

In light of the foregoing, this case clearly involved a course of criminal conduct by

the Defendant and her co-conspirator over the period of nearly three (3) years. The

additional uncharged or disposed of criminal episodes involving the Defendant plainly

were admitted not for their truth but to explain the long history of this case and the

motive, malice, intent and plan of the Defendant. We also fail to see how allegations of°

summary and misdemeanor offenses brought against the Defendant who stood trial for

homicide, attempted homicide and arson prejudiced the jury to such a degree as to

deny her a fair trial. The story of this case is disturbing but it was written in large part by

the Defendant herself. Her conduct was rightly presented to the jury for the limited

purposes proscribed by law. We do not hesitate to conclude that her Appeal must fail.

Alternatively, given that the Appellant does not point to a single example of the

complained of error, we find her issue identified at 4.3.3 is waived.

22

4.3.4

The complaint 4.3.4 is a preamble to a litany of complaints stating as follows:

The court erred in allowing the Commonwealth to admit evidence that violated

rules of evidence 401 402, and 403 because the evidence was not relevant, and even if

relevant, the probative value was outweighed by unfair prejudice, confusion of the

issues, misleading the jury, and needlessly presenting cumulative evidence. This

alleged error includes:

4.3.4.1 The voicemails Ms. Sanutti-Spencer left.

4.3.4.2 The text messages form Ms. Sanutti-Spencer.

Pa. R.E. 803(25) governs the admissibility of statements made by a party or a

co-conspirator. Generally, subject to relevance, a party's own statement may be used

against him at trial. Havasy v. Resnick, 415 Pa. Super. 480, 488, 609 A.2d 1326, 1329

1992) (See also Commonwealth v. Edwards, 588 Pa. 151; 903 A.2d 1139, 1157 -1158

(Pa. 2006) reaffirming the admission exception to the hearsay exclusion in a criminal

case.) Although we do not doubt the Defendant would prefer that the jury had not heard

the various voice mails and text messages sent by her we found them to be relevant

and more importantly, found no basis to exclude them.

We also find that these issues identified .as issue 4.3.4.1 and 4.3.4.2 are likely

waived. In discussing the purpose for Rule 1925(b), Appellant's own 1925 Statement

cites Commonwealth v. Reeves, declaring "A 1925b statement must be detailed enough

so that the judge can write an 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

23

to the appellate court without giving the trial judge volumes to plow though." (Appellant's

Concise Statement at p. 2) Commonwealth v. Reaves, 907 A.2d 13 (Pa. Super. 2006).

-

The preceding two issues raised by the Appellant invite Us to plow through the

seven volumes of trial transcript to find examples of her issue. We decline her invitation

and we consider the issues identified at 4.3.4.1 and 4.3.4.2 waived. Appellant does not

point to even one voicemail or text message. Rule 1925 does not require a response to

such boiler plate complaints. We note that the authenticity of most if not all of the

Appellant's texts and calls was stipulated to by trial counsel, (N.T. Vol. II p. 6)

Furthermore, authenticity notwithstanding, the voicemails and texts left or sent by the

Defendant are plainly admissions as pursuant to Pa. R.E 803(25)(A). Although the

meaning of her messages could be open to interpretation, we need not adopt her

interpretation prior to ruling on their admissibility. In light of the foregoing, Defendant's

Appeal fails.

The Defendant's Concise Statement at 4.3.4 lays out a. general boiler plate

preamble to the seventeen issues numbered 4.3.4.1 through 4.3.4.17. Noteworthy, this

generalized statement raises only relevance and prejudice as governed by Pa.R.E. 401,

402, 403. Our analysis of these issues will likewise begin with a general statement of

the relevant authority in an effort to keep our Opinion brief and concise.

.

Rule 401 of the Pennsylvania Rules of Evidence states, "Relevant evidence

means evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it

would be without the evidence." Pa.R.E. 401. While Rule 403 provides, " .relevant,

..

evidence may be excluded if its probative value is outweighed by the danger of unfair

24

.

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue

delay; waste of time, or needless presentation of cumulative evidence." PaRE. 403.

Relevance is a threshold consideration in determining the admissibility of

evidence. Whyte v. Robinson, 421 Pa. Super 33;617 A.2d 389,383 (1992). Evidence is

relevant if it logically tends to establish a material fact in the case or tends to support a

reasonable inference regarding a material fact. Evidence is only admissible where the

probative value of the evidence outweighs its prejudicial impact. Commonwealth v.

Story, 476 Pa. 391, 383 A.2d 155 (1978). Where the evidence is not relevant, there

is

no need to determine whether or not the probative value of the evidence outweighs its

prejudicial impact. commonwealth v. Stokes, 2013 PA Super 272, 78 A.3d 644, 654

(2013).

Moreover, it is well settled that the admission of evidence is within the sound

discretion of the trial court and determinations of admissibility will not be reversed on

appeal absent a clear abuse of discretion. Commonwealth v. Chmiel, 738 A.2d 406,

414 (1999) cert. denied. 528 US 1131(2000). An abuse of discretion is not merely an

error of judgment. Commonwealth v. Auburn, 721 A.2d 363, 366 (Pa. Super 1998) An

abuse of discretion occurs where the record demonstrates that "the court, in reaching a

conclusion, overrides or misapplies the law, or exercises its judgment in a manifestly

unreasonable manner which is the result of partiality, prejudice, bias or ill will." Id.

4.3.4.3

Mrs. Yodock's testimony regarding her reaction to the Defendant telling her

about her father. See Day Ill, p. 92; 7-19

25

Whereas here, when a Defendant is charged with homicide and conspiracy to

commit homicide for allegedly shooting and or conspiring to shoot someone in the head,

we think that evidence that the Defendant Was aware that her co-conspirator discussed

shooting people in the head prior to the homicide is highly relevant. Mrs. Yodock

testified that Defendant's father told her son Cy stories "about popping people in the

head" and the Defendant posed no objection. Therefore the objection is waived. (NT.

Vol. lii P. 91)

Appellant's now complains of the relevance of Mrs. Yodock's "reaction" to that

information. (N.T. Vol; Ill p. 92) The Defendant's admissions relative to her father are

relevant to the issue of her relationship to her co-conspirator and her reported

knowledge of his activities or claims. We further find that Mrs. Yodock's reaction to the

information is relevant to the issue of her credibility. Evidence that impeaches, or

corroborates or rehabilitates a witness is relevant. Commonwealth v. Davis, 554 A.2d

104 (Pa. Super. Ct. 1989) The prosecutor's question in essence asked what did she do

with the information and her response was that she told her husband and her mother in

law about the encounter. (NJ. Vol Ill p. 93) In our view, the witness's response was a

fair inquiry addressing her credibility. Accordingly, Appellant's appeal is without merit

and must fail.

In the alternative, if the Honorable Superior Court deems the admission of Mrs.

Yodock's "reaction" error we suggest that this error is harmless given that the testimony

which implicated the Defendant and her co-conspirator was previously admitted without

objection and one minor witness's reaction could not have contributed to the jury's

1j

-

verdict. See Commonwealth v. Sandusky, 77 A.3d 663 (Pa. Super. 2013). Accord

ingly,

Defendant's judgement of sentence should be affirmed.

4.3.4.4

Defendant appeals this Court's November 3, 2015 Order Denying the

Defendant's Motion in Limine to preclude the admission of the February 4, 2010

recorded phone call, from co-conspirator Rocco Franklin to the Pennsylvania

State

Police. A statement by one co-conspirator is admissible against other membe

rs of the

conspiracy in criminal cases if the statement is made during the course and

in

furtherance of the conspiracy. Pa. R.E. 803(25)(E), Commonwealth v. Dreibe

lbis, 426

A.2d 1111 (Pa. 1981). The standard of proof for demonstrating these facts is

preponderance of the evidence. Commonwealth v. Stocker, 622 A.2d 333 (Pa.

Super.

Ct. 1993). Appellate courts apply the abuse of discretion standard when analyz

ing a

trial court's rulings on motions in limine. Commonwealth v. Rosen, 42 A.3d 988

(Pa.

2012). The Confrontation Clause of the Sixth Amendment is not offended by

the

introduction against the accused of non-testimonial hearsay statements of a

co-

conspirator made, during and in furtherance of the conspiracy of which the accuse

d is a

member Crawford v. Washington, 541 U.S. 36, (2004).

Officer Scott Traugh heard the February 4, 2010 voice mail at issue which was

left for the Pennsylvania State Police and he identified the caller as Anthony

Rocco

Franklin, the Defendant's father. (N.T. Vol. IV p. 245). Ten days after the fire

Frank Spencer's home, the then unidentified caller represented that he had

at Mr.

been

solicited to set the fire. (N.T. Vol IV p. 249) Commonwealth's Exhibit #244, Vol

246. The evidence proffered at the time the Court ruled on the admissibility of

27

IV p.

the

February 4, 2010 statement demonstrated by a preponderance of the evidence that

Anthony Rocco Franklin was .in a conspiracy with the Defendant and that his call was

made in furtherance of the conspiracy.12 The evidence adduced at trial gave us no

reason to reverse our judgment. The evidence presented by the Commonwealth

suggested that Rocco Franklin had knowledge about the fire at Mr. Spencer's Miliville

Road home and that he attempted to either guage the interest of the State police in him

as a suspect or misdirect authorities away from him, his daughter or their

confederates.13

In light of the fact that the Criminal Information charged the Defendant with•

Homicide, Arson and Conspiracy to commit same, we find that the evidence of the

February 4, 2010 phone call was highly relevant and not unfairly prejudicial. Accordingly

Appellant's Judgment of Sentence should be affirmed.

4.3.4.5

Appellant next alleges error in admitting her statement "life is going to be good

now." We disagree.

In isolation, the Defendant's statement, "Life is going to be good now" is

meaningless; however, in the context of this case her statement is clearly relevant for

the purpose of establishing her knowledge of and participation in the conspiracy.

Critically, her statement was made after Frank Spencer was murdered but prior to his

body being discovered. (NT. Vol. VI. P. 187-188) Plainly, the Defendant's knowledge at

\

/•

12 At the time of the fire the Defendant and the victim were at a hotel in Williamsport. (N.T. Vol. VI p. 117)

13

Given that the preamble of Appellant's 1925b at 4.3.4 raised only relevance and unfair prejudice we believe that

we could find the hearsay elements of her complaint waived. We analyze the issue to amplify our reasoning and

aid subsequent Appellate Courts.

a time when the demise of Mr. Spencer was otherwise unknown does indeed have a

tendency to make the existence of a fact that is of -consequence to the determination of

the action more probable and the evidence was properly admitted. See Pa.R.E. 401.

Consequently, Appellant's allegation of error is meritless.14

4.3.4.6

Appellant alleges that the Court erred admitting "Statements made by Frank

Spencer to Mr. Yodock when the Court ruled that whether Frank Spencer was

contacting law enforcement went to his state of mind. Day II, 1.89-190; 16-13" For the

reasons set forth below we disagree.

Pennsylvania Rule of Evidence 803(3) provides an exception to the general rule

against the admission of hearsay evidence where the evidence is a statement of the

declarant's. then existing state of mind. Pa. R. E. 803( The statements may not be

offered to prove the fact remembered or believed. jç., The witness testified that he

discussed the fires with Mr: Spencer and that Mr. Spencer made reports about same to

law enforcement. (N.T. Vol. II p. 189-190) The evidence was admitted to demonstrate

•the victim's state of mind during the lengthy period of intimidation visited upon him by

the Defendant.

Particularly in a homicide case,. a statement evidencing the decedent's state of

mind may be offered not for the truth of what was said but to show motive or malice.

Commonwealth v. Puskar, 559 Pa. 358, 368; 740 A.2d 219, 225 (1999). Cert denied

14

The Appellant's Complaint citing the "rule of completeness" has no application to this alleged

error. No writing

was Introduced and we know of no authority that requires "complete" recitations of verbal exchanges

.

29

531 U.S. 829, 121 S.Ct. 79 (2000). Determinations of whether such statements are

admissible rest with the sound discretion of the trial court and will not be disturbed

absent an abuse of discretion. Commonwealth v. Collins, 550 Pa. 46, 703 A.2d 18

(1997) In the instant case, the Commonwealth did not offer Mr. Spencer's statement for

the truth of the matter, but instead to establish his fear and reactions thereto during the

course of acrimonious relations with the Defendant.

"Evidence concerning the previous relations between a defendant and a

homicide victim is relevant and admissible- for the purpose of proving ill will or malice

This principal applies when the decedent was the spouse of the accused, thus evidence

concerning the nature of the marital relationship is admissible for the purpose of proving

ill will, motive or malice." Commonwealth v. Chandler, 721 A.d 1040 (Pa. 1998) citing

Commonwealth v. Ulatoski, 472 Pa. 53, 60, 371 A.2d 186, 190 (1977). See also

Commonwealth v. Fletcher, 561 Pa. 266, 750 A.2d 261 (2000).

We find that the testimony that the decedent made reports to the police goes

directly to the issue of his fear of the Defendant during the course of the conspiracy

against him. Appellant's appeal must fail

4.3.4.7

Appellant's next allegation, again presumably relying on the general relevance

complaint at 4.3.4 of her 1925b statement, reads as follows: "Police reports regarding

threats that Ms. Sanutti-Spencer (Defendant) allegedly made against Julie Dent and

Madeline Spencer. Day IV, 148-149; 19-14." The existence of police reports relative to

threats against Julie Dent, a paramour of the victim at the relevant time, were especially

30

relevant in the present case because of the Defendant's course of conduct attempting to

intimidate the victim.15

"Evidence is relevant if it logically tends to establish a material fact in the case,

tends to make a fact at issue more or less probable or supports a reasonable inference

or presumption regarding a material fact." Commonwealth v. Drumheller, 570 Pa. 117,

808 A.2d 893 (2002) citing Commonwealth v. Staflworth, 566 Pa. 349, 781 A.2d 110,

117-118 (2001). Moreover, it is well settled that the admission of evidence is within the

sound discretion of the Trial Court and determinations of admissibility will not be

reversed on appeal absent a clear abuse of discretion. Commonwealth v. Chmiel,738

A.2d 406, 414 (1999) cert. denied. 528 US 1131 (2000). We first note that the portion of

the transcript the Appellant cites indicates that no evidence was offered that threats

were made against the victim's mother (N.T. Vol. IV 148-149) Seargerit Traugh's

testimony only indicated that her name was included in the police reports. Id.

Even if we were to adopt the Appellant's understanding of the evidence at issue

we do not hesitate to find that the evidence of threats against those close to the

decedent is relevant to the issue of the Defendant's motive and ill will toward the

decedent himself. Police reports relative to threats made against Julie Dent are also

relevant because the Defendant was charged with committing or conspiring to attempt

homicide by an arson fire which occurred at Julie Dent's occupied home on August 25,

2010. (Amended Information filed 9/24/2015 at Counts 10,11,12,13) The evidence is

relevant to the Defendant's malice and it supports Commonwealth's theory that the

15 Appellant

does not raise authentication, hearsay or confrontation issues.

31

Defendant was persistently and systematically terrorizing Mr. Spencer and those close

to him. A police report indicating that Ms. Dent, a paramour of the victim, was

threatened by the Defendant herself clearly tends to support a reasonable inference

regarding a material fact and is therefore highly relevant. Appellant's allegation of error

is meritless and her appeal must fail.

4.3.4.8

Appellant complains "Police report that Frank Spencer made alleging someone

/

was searching how to kill somebody. Day IV, 149-157, 20-7" Noteworthy, like the

preceding issue, Appellant does not raise hearsay or confrontation issues. We admitted

the evidence presented on this point because it assisted the jury's understanding of the

history of the case and identified one of the initial sources of the decedent's fear. This

evidence was not unfairly prejudicial to the Defendant because no evidence was

presented that she was using the computer. Accordingly, the Appellant's allegation of

error is without merit.

4.3.4.9

The Defendant, again apparently relying on reference to the "relevance" and

"unfair prejudice" broadside at 4.3.4 of her 1925(b), next complains that "Sergeant

Traugh's testimony of why he believed. Frank Spencer was with Ms. Sanutti —Spencer

when the house on Miliville Road burned down." We strain to understand Appellant's

complaint on this point. Our review of the transcript indicates only that Mr. Spencer told

Sargent Traugh that he was with the Defendant on the date of the fire at his residence.

(N.T. Vol.V p. 144). Appellant's allegation of error does not raise hearsay or

32

confrontation issues and consequently those issues are waived. Given her general

complaint is relevance we analyze the issue to the extent we comprehend it.

Evidence is relevant if it logically tends to establish a material fact in the case or

tends to support a reasonable inference regarding a material fact. Commonwealth v.

Chrniel, 738 A.2d 406, 414 (1999) cert. denied. 528 US 1131 (2000). Where Mr.

Spencer was when his house at 1394 Millville Road was burned down under suspicious

circumstances may be relevant in a trial alleging a campaign of escalating violence and

arson of that location. Evidence that the victim was with the Defendant at a hotel away

from the home amplifies the relevance of that evidence. This is especially true in light of

the fact that the Defendant was charged with conspiracy to commit arson and

accomplice to arson for the fire at the decedent's residence. Amended Information

9/24/2015 Counts 8,9) Consequently, we find the Appellant's allegation of error as to

relevance wholly without merit.

4.3.4.10

Appellant takes issue with "Questioning witnesses regarding why they did not contact

the police. Day VI, 54; 9-15."

"Any party, including the party who called the witness, may attack the witness's

credibility." Pa. R.E. 607(a) After his witness testified about threats made by the

Defendant, the prosecutor on direct examination, asked why the witness did not make a

prompt report to police. (NT. Vol. VI p. 45) As an initial matter we find that this is a fair

question preemptively addressing the credibility of a witness.

33

More importantly, Defendant's counsel did not object at the time the complained

of inquiry was made. Instead, defense counsel proceeded to cross examine the witness

and only at the conclusion of the witness's testimony did counsel raise the objection.

(N.T. Vol. VI p. 54) In order to preserve an issue for appeal a timely and specific

objection must be made. Commonwealth v. Tucker, 143 A.3d 955, (Pa. Super. 2016)

See also: Commonwealth v. Boring, 453 Pa Super. 600, 684 A.2d 561 (Pa. 1990)

(Holding that a motion for a mistrial made subsequent to a sustained objection was

untimely when deferred until the conclusion of the witness testimony a considerable

length of time after the prejudicial remark occurred) In the present case, like Tucker,

counsel failed to make his objection until after the completion of both direct and cross

examination. Accordingly, his objection is untimely and this issue is waived.

4.3.4.11

Appellant complains "Ms. Dent was permitted to give her opinion that the fire at her

house and the fire at the house on Miliville Road were connected."

Appellant raises the issue of a non-expert witness rendering an opinion. We

begin our analysis with a review of Pa. R.E. 701.

Pennsylvania Rule of Evidence 701 provides as follows:

If a witness is not testifying as an expert, testimony in the form of an

opinion is limited to one that is:

rationally based on the witness's perception;

helpful to clearly understanding the witness's testimony or to

determining a fact in issue; and

not based on scientific, technical, or other specialized knowledge within

the scope of Rule 702.

34

Opinion testimony of a non-expert is admissible as long as the witness has

perceived the events upon which his, opinion is based, Commonwealth v. Neiswonqer,

338 Pa. Super. 625, 488 A.2d 68 (1985). Testimony in the form of an opinion or

inference otherwise admissible is not objectionable because it embraces an ultimate

issue to be decided by the trier of fact. Pa. R. Evid. 704.

We note that the present case involved a series of threats and escalating

violence directed toward Frank Spencer and Julie Dent who was involved in a romantic

relationship with the late Mr. Spencer. At trial, the Defendant was convicted of arson as

an accomplice for burning the residence of Frank Spencer on January 24th 2010.. She

was also convicted of arson and conspiracy for burning the residence of Julie Dent on

August 25th 2010. Ms. Dent testified that "she believed the fires were connected." (N.T.

Vol. VI p. 83-84) Given the history of threats made against her and Mr. Spencer by the

Defendant, and the fires at their respective residences only ten (11 0) months apart, we

find that Ms. Dent's observation was rationally based on her perception, helpful to the

-,

jury's understanding of her testimony, the history of the case and required no

specialized knowledge. Pa. R.E. 701.

If the jury reached the same conclusion as that offered by Ms. Dent, it is likely

because the jury interpreted the facts in the same way and concurred with the witness's

opinion, because it fit the facts, and not merely because they happened to hear her lay

opinion. Appellant's appeal must fail.

4.3.4. 12

Appellant next complains "Ms. Dent testified that she was not trying to act like

Frankie's mother. Day VI, 92: 5-25."

35

Given the overwhelming evidence presented of the Defendant's guilt on all

counts we struggle to understand how this witness's response in the negative

prejudiced the Defendant. The text and voice mail messages to Ms. Dent did show the

Defendant's animosity toward her. Quite candidly, we are at a loss to provide further

explanation. It is obvious to this Court, and hopefully to anyone else reviewing the

record in this matter that this allegation of error is wholly without merit.

4.3.4.13

Appellant's next complaint alleges that the Court erred permitting "Steven

Cvejkus testified to Ms. Sanutti-Spencer's expectations in their relationship. Day

VI, 169-170; 18-15"

Once again, given that Appellant's boilerplate objection is relevance; all other

allegations of error relative to this complaint are waived. While we agree that it is

improper for a witness to testify as to what he imagines the thoughts or "expectations" of

the Defendant are, a careful review of the exchange indicates that the witness testified

to only what he personally observed. The relevant testimony is as follows:

Q. Prior to Mr. Spencer's death, had you observed a ôhange in the

Defendant?

A. Yeah, we spent more time together around that time.

Q. Was there a difference in her expectations with you regarding the

relationship?

Mr. Hoey: Objection, your Honor, Relevance,

Mr. Forray: Your Honor, I think what the witness is going to talk about...

Mr. Hoey: Your Honor, if we could have a sidebar?

The Court: You can tell me without getting into the substance of what

you're going to say.

36

Mr. Forray: I think it's relevant, Your Honor, because I expect the witness.

would express that there was a difference in behavior that he observed.

The Court: Okay, then let's go ahead with it. See where it goes.

Mr. Cvejkus: Yes, there was more time spent together, more time wanting

to do things together in that sense, yes.

Thus, while the prosecutor's question could have used clearer language, it

was evident from both his proffer and his witness's response that the evidence

elicited and ultimately presented was based on the observations of the witness.

His observations are relevant because they tended to show, or at least created

an inference, that the Defendant was turning away from reconciliation with Frank

Spencer by spending more time with another suitor. (NT. Vol. VI p. 169-170).

See Pa. R.E. 401. In the context of an acrimonious marriage followed by arson,

divorce then homicide, the witness's observations of a change in the Defendant's

behavior around the time of the homicide is relevant, not, unfairly prejudicial and

thusly her allegation of error is without merit.

-

4,3.4.14

Appellant next complains as follows: "Patricia Lawton testified to why she

provided a voicemail to the police. (N.T. Vol. VII p. 44-45)"

A voice mail left by the Defendant for the witness, Patricia Lawton was presented

to the jury as Commonwealth's exhibit 243. (N.T. Vol. VII p.44) The witness was then

asked why she provided the voicemail to the police and she was directed to answer

over counsel's objection. (Id) Ms. Lawton went on to testify that she reported the voice

mail because she interpreted it as a threat and that she was frightened by the

37

Defendant. Given that this threat was made after the murder of Frank Spencer

Relevant to consciousness of

4.3.4.15

Appellant next appeals the relevance of "Text messages between Cyrus Spencer

and Alan Kapp read to the jury. Day VII, 216-218: 5-10'

At trial Corporal Williams of the Pennsylvania State Police read into the record

the following exchange of text messages between Alan Kapp and Cyrus Spencer

located at Volume VII pages 215 to 218. (N.T. Vol. VII p.215-218).

Q. Corporal Williams, do you know approximately what time significant

communications occurred between Mr. Kapp and, Cyrus Spencer?

A. Yes, July 3rd, 2012 3:09. Military time 15:09, your Honor.

The Court: Okay

Q. Corporal Williams continue.

A. Yes, from Alan Kapp to Cyrus Spencer, "Hello, do you know what is

going around?" Same time,from Cyrus to Alan: "What?" Alan to--- same time

Alan to Cyrus: "Never mind, I don't know if 1 should tell you." Cyrus to Allen,

at 3:10 p.m. "Tell." 11:15 or 3:11, one minute later from Alan to Cyrus, "Is it

true what happened to your Dad?

Same time, Alan to Cyrus, "Where is your Dad?"

Initially we note once again that a trial court's rulings on the admissibility of

evidence will not be reversed absent an abuse of discretion. (Citations omitted)

Counsel for the Commonwealth argued that the texts were being introduced for a

non-hearsay purpose and we overruled the Defendant's objection N.T. Vol. VII.

P. 216) Noting that the Appellant's allegation of error is relevance, we find that

38

I

this issue is waived because at trial defense counsel's objection was hearsay.

(N.T. Vol VII p. 216) (See Appellant's Concise Statement at 4.3.4)

4.3.4.16 Theresa Sanutti White was questioned as to - whether she was funding her

sister's defense.

Pennsylvania Rule of Evidence 607 governs impeachment of witnesses. Pa.

R.E. 607. "The credibility of a witness may be impeached by any evidence relevant to

that issue, except as provided by statute or these rules.", Pa, R.E. 607(b). A cross

examiner is permitted to reveal "possible biases, prejudices, or other ulterior motives as

they might relate directly to issues or personalities in the case. R. V. Pennsylvania Dept.

of Public Welfare, 535 Pa. 440, 466; 636A.2d 142, 155 (1994). It is proper for the

Commonwealth to show by cross-examination matters bearing on the witness' bias or

feeling as affecting his credibility. "The latitude allowed in cross-examination is largely in

the discretion of the trial court" Commonwealth v. Katz, 138 Pa. Super. 50, 64-65, %

A.2d 49, 55, (Pa. Super. Ct. 1939) Citing Commonwealth. v. Delfino, 259 Pa. 272, 101

A 949; Commonwealth v. Keegan 70 Pa. Super. 436,441. An improper inquiry on cross

examination must appear from the question and answer, or from the question alone,

that wholly foreign and irrelevant matter manifestly tending to mislead the jury to

appellant's prejudice was put before them under the guise of cross-exam.

Commonwealth v. Katz, 138 Pa. Super. 50 (Pa. Super. 1939) Citing Commonwealth. v.

Williams, 41 Pa. Super. 326, (Pa. Super 1909).

In the instant case, the prosecutor asked the Defendant's sister if she was

financing the Defendant's legal defense. (N.T. Vol. Ill p79-80) This question is fair

39

cross examination designed to uncover bias or interest, both fair areas of inquiry.

Commonwealth v. Butler, 529 Pa. 7, 14; 601 A.2d 265 (1991). See also Commonwealth

v. Hlatky, 426 Pa. Super. 66,80; 626 A.2d 575, 583 (1993) app denied 537 Pa 663; 644

A.2d 1200 (1994). Where the prosecution was permitted to inquire whether the

defendant's wife's testimony was affected by a desire to see him freed. Commonwealth

M. Hlatky, 426 Pa. Super. 66, 80; 626 A.2d 575, 583 (1993) app denied 537 Pa 663; 644

A.2d 1200 (1994). Noteworthy, the Defendant's sister responded to the question in the

negative. (N.T. Vol. III p.79-80). We are convinced that in the instant case that the

prosecutor's inquiry was a fair question reasonably designed to elicit evidence of

interest or bias and accordingly her appeal fails.

4.3.4.17

Defendant again complains "Testimony concerning Mrs. Yodock's reaction to

Maria telling her that her father, Franklin, tells Cyrus stories about popping people in the

head." This issue is indistinguishable from the issue raised at issue 4.3.4.3 of

Appellants Concise Statement. We rely on the analysis in our response to that

complaint in concluding that this allegation of error is likewise without merit.

4.3.5

Appellant alleges that "The rule of completeness was violated when text

messages were entered into evidence without any of the surrounding text messages to

explain the context and significance of the messages. Day II, 13; 6-6"

40

As we stated previously in our analysis the last time the Appellant raised a similar

issue, we do not believe any "rule' apart from Pa. R. E. 106 makes completeness an

issue.

Nonetheless, Appellant misjudges the Rule's purpose and import. Rule 106 is not

an exclusionary rule, but, rather, it. merely permits the adverse party to introduce related

writings so that the documents originally introduced are not read out of context.

Commonwealth v. Passmore, A.2d 697, 712-713 (Pa. Super. Ct. 2004) Contrary to

Appellant's contention, Rule 106 does not require that a party admit all correspondence

and related writings. Rather, the rule's primary purpose is to correct misleading or

impartial evidence. See Pa. R.E. 106, comment. The Court in Passamore was

confronted with the issue of the admissibility of a series of e-mail messages, where

some of the e-mails messages between the parties were missing. Id. In spite of the

absence of some of the e-mail messages between the defendant and the victim in that

case, the Honorable Superior Court held that Pa.R.E 106 did not preclude the

admission of the relevant e-mail messages that were admitted into evidence. Id.

Accordingly, the admission of some relevant text messages sent by the

Defendant was proper and Appellant's allegation of error is without merit.

4.3.6

Appellant's next allegation of error reads as follows: "Pa. R.E. 701 was violated when

the Court allowed Corporal Andreuzzi to give his opinion about items in the decedent's

house being out of place or not fitting what he observed when he was at the decedent's

41

:1

house and when Corporal Andreuzzi gave his opinion about money being in the

decedent's truck being significant. Day 111 26-29; 22-4; Day 111 48-49; 22-18.

Opinion Testimony by lay witnesses

If a witness is not testifying as an expert, testimony in the form of an

opinion is limited to one that is:

rationally based on the witness's perception;

helpful to clearly understanding the witness's testimony or to

determining a fact in issue; and

(C) not based on scientific, technical, or other specialized knowledge

within the scope of Rule 702. Pa. R. E. 701

The portion of the record which Appellant cites as including inadmissible expert

opinion testimony pertains to a State Trooper's observations during the investigation

based on his experience and training. The trooper saw a rubber glove and

photographed it because he thought it might be a clue. (N.T. Vol. III p. p. 26 lines 22-25)

Police officers are permitted to testify to what they observe during the course of an

investigation and its relevance to their conclusions. Commonwealth v. Yedinak, 676

A.2d 1217, (Pa. Super 1996) See also Commonwealth v. Neiswoncer, 488 A.2d 68 (Pa.

Super 1985) This allegation of error is wholly without merit. Trooper's testimony

regarding the money in the vehicle is relevant because it too is a clue suggesting that

the motive is not robbery. (N.T. Vol. III p. 49 lines 14-18) We allowed this testimony over

counsel's objection because we found that it was rationally based on the investigator's

perceptions and informed by his experience and training. See Yedinak, 676 A.2d 1217,

1221 (Pa. Super 1996)

42

£

4.4

The Appellants allegation of error identified in her 1925b Statement as issue 4.4

"There was insufficient evidence presented to uphold the verdicts for counts 1-4, 6-13

and 15-26" is waived.

Issues not raised in a 1925(b) statement are deemed waived, Commonwealth v.

553 Pa. 415, 719 A.2d 306 (1998). A vague Concise Statement is equivalent to no

concise statement at all. Commonwealth v. Dowling, 778 A.2d 683 (Pa. Super. 2001). "If

an Appellant wants to preserve a claim that the evidence was insufficient, then the

1925b statement is required to determine which elements of which offenses were

unproven?" Commonwealth v. Manley, 985 A.2d 256, 262 (Pa. Super. 2009). Our

Honorable Superior Court addressed this issue in Commonwealth v. Williams, 959 A.2d

1252, 1257 (Pa. Super. 2008) as follows: If Appellant wants to preserve a claim that the

evidence was insufficient, then the 1925(b) statement needs to specify the element or

elements upon which the evidence was insufficient. This Court can then analyze the

elements or elements on appeal." The Williams Court went on to state that the 1925(b)

statement is required to determine "(w)hich elements of which (o)ffenses were

unproven? What part of the case did the Commonwealth not prove?" Id. An appellant's

sufficiency claim was deemed waived where his 1925(b) Statement baldly claimed that

the Commonwealth did not proffer sufficient evidence to prove beyond a reasonable

doubt that [Appellant] was guilty of Robbery. Commonwealth v. Hansley, 24 A.3d 410,

415, (Pa. Super. Ct. 2011). The Appellant's 1925(b) is not nearly as illuminating as the

allegation of error deemed waived in Hansley. Accordingly, her complaints are waived.

43

Alternatively, having presided over the trial in this matter, we do not hesitate to

conclude that the evidence presented was more than sufficient to enablethe jury to find

the Defendant guilty beyond a reasonable doubt on all twenty-six (26) counts.

When reviewing a sufficiency of the evidence claim, a court examines all

evidence and reasonable inferences there from in a light most favorable to the verdict

winner, and then determines where the evidence is sufficient to enable a fact finder to

determine that all elements of the offenses were established beyond a reasonable

doubt. Commonwealth v. Hawkins, 549 Pa. 352, 701 A.2d 492, 499 (Pa. 1997).

Only where the evidence offered to support the verdict is in contradiction to the

physical facts, in contravention to human experience and the law of nature, is it deemed

insufficient as matter of law. Commonwealth V. Robinson, 817 A.2d. 1153, 1158

(Pa.Super. 2003 quoting Commonwealth v. Santana, 460 Pa. 482, 333 A.2d 876

(1975)). The evidence must be viewed in the light most favorable to the Commonwealth

as verdict winner, accept as true all the evidence and all reasonable inferences upon

which, if believed, the jury could properly have based its verdict, and determine whether

such evidence and inferences are sufficient in law to prove guilt beyond a reasonable

doubt. Commonwealth v. Scatona, 508 Pa. 512, 498 A.2d.1314, 1317(1985). After

careful review of the record, and having intently presided over the presentation of the

evidence, we find no reason to doubt the jury's verdict.

For the aforementioned reasons, Appellant's allegations of error are both

obviously waived and patently frivolous. Appellant's Judgment of Sentence should be

affirmed.

44

S

4.5 Court erred in denying multiple mistrial requests:

We interpret this allegation of error as a prologue to Appellant's next three

complaints. To whatever extent it may be an independent issue, this issue is waived

since we cannot determine which request Appellant is referring to.

4.5.1 Sergeant Traugh testified that Frank Spencer's first report to the police was when

he found searches related to homicide in the internet search history of his home

computer.

This complaint is repetition of the allegation of error identified at 4.3.4.8 of

Appellant's 1925(b) statement. To the extent that she now raises the issue of mistrial we

provide the following relevant analysis.

The decision to declare a mistrial is within the sound discretion of the trial court.

Commonwealth v. Montgomery, 626 A.2d 109 (Pa. 2009). A mistrial is an extreme

remedy that may be granted only when an incident is of such a nature that its

unavoidable effect is to deprive the defendant of a fair trial. Commonwealth v. Manley,

985 A.2d 256 (Pa. Super 2009). After the jury is exposed to unfairly prejudicial evidence

the trial court may implement any appropriate remedy, including offering a remedial

instruction or declaring a mistrial. Commonwealth v. Sanchez, 36 A.3d 24, 47-48

(Pa.201 1).

Appellant's counsel did make a timely motion for a mistrial when the prosecutor

solicited evidence from his witness that Frank Spencer made police reports alleging that

someone was researching murder on his home computer. (N.T. Vol IV p. 150). As we

noted earlier in our analysis we found this evidence to be relevant to decedent's state of

45

mind and necessary to explain to the jury the development of the history of the case.

We did not and do not believe that this evidence was so prejudicial that its exclusion

would be warranted pursuant to Pa R. E. 403. We are likewise unpersuaded that this

evidence was so prejudicial that it deprived the Defendant of a fair trial. For the

aforementioned reasons, Appellant's Appeal must fail.

4.5.2

Appellant next complains that "Ron Romig testified that he believed the

Defendant murdered Frank Spencer. Day VII, 70: 12-20"

This allegation of error is wholly without merit. The Defendant's objection was

sustained and the witness's testimony was stricken and the jury was instructed to ignore

the comment. (N.T. Vol. VII p. 70). Appellant was convicted of homicide because the

jury was so persuaded by the overwhelming evidence of her guilt not because of the

opinion of one minor witness.

4.5.3

Appellant next complains that partial jury instruction was given after the jury had

an unrelated question to the partial instruction. Day X, 13-14: 6-25; Day X, 15-17; 2-23;

See also Day X, 7: 3-4; Day X, 17-25.

The trial court has broad discretion in phrasing instructions to the jury and may

choose its own wording as long as the law clearly, adequately and accurately presented

for its consideration. Commonwealth v. Chambers, 546 Pa. 370, 685 A.2d 96 (1996).

"An appellate court must assess jury instructions as a whole to determine whether they

are fair and impartial." Commonwealth v. Collins, 546 Pa, 616, 620, 687 A.2d 1112,

46

1

S

1113 (1996). Further, our appellate courts do not "rigidly inspect a jury charge, finding

reversible error for every technical inaccuracy, but rather evaluate whether the charge

sufficiently and accurately apprises a lay Jury of the law it must consider in rendering its

decision." Commonwealth V. Hannibal, 562 Pa. 132,139-140, 753 A.2d 1265, 1269

(2000), cert denied, 532 U.S. 1039, 121 S.Ct. 2002, 149 L.Ed.2d 1.004 (2001). Quoting

Commonwealth v. Prosdocimo, 525 Pa, 147, 150, 154 578 A.2d 1273, 1274, 1276

(1990). A deficient jury instruction will only entitle a defendant to a new trial when the

instruction was fundamentally erroneous or misled or confused the jury. Commonwealth

v. Moury, 992 A.2d 162,178-179 (Pa. Super. 2010) citing Commonwealth v. Wright,

599 Pa. 270, 961 A.2d 119 (2005). The record plainly indicates that the jury was

instructed adequately and in accordance with the law. Accordingly, Appellant's

allegation of error is meritless.

4.6

Appellant next complains, in pertinent part, that the Court erred in denying

Defendant's motion to sever alleging that the events were unrelated, unduly prejudicial

and confusing to the jury.

We disagree. On September 24, 2015, the Attorney General of Pennsylvania

filed a twenty-six (26) count Amended Information charging the Appellant with a series

of crimes which were then alleged to .have occurred between October of 2009 and

September of 2013. The offences occurred both before and after the homicide of Frank

Spencer charged at count one of the Criminal Information. The offenses were absolutely

related insofar as they represented a course of escalating conduct prior to the homicide

and unsuccessful attempts to elude justice through perjury before an investigation grand

jury over a year after the homicide.

47

p

A trial court's decision regarding the severance of offenses will not be disturbed

absent an abuse of discretion. Commonwealth v. Jones, 530 Pa. 591, 610 A.2d 931,

936 (Pa. 1992); Commonwealth v. Galloway, 495 Pa. 535, 539, 434 A.2d 1220 (1981).

Pa R. Crim.P. 583 "Severance of Offenses or Defendants" provides as follows:

The court may order separate trials of offenses or defendants, or

provide other appropriate relief, if it appears that any party may be

prejudiced by offenses being tried together. Pa R. CrimP. 583

Even offenses charged in separate informations may even be tried together "if the

evidence of each offense would be admissible in a separate trial for the other and is

capable of separation by the jury so that there is no danger of confusion, or "if the

charges are "based on the same act or transaction." Pa. Crim. P. 582(A)(1),

Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491, (Pa.1988) Clearly, the offenses

which occurred prior to the homicide would have been admissible to demonstrate

motive, Intent, common scheme, plan or design or to establish the identity of the person

charged with the offense. Pa.R.E. 404(b). Evidence of other crimes may also be

admissible where such evidence was part of the "chain or sequence of events which

became the part of the history of the case and formed part of the natural development of

the facts." Lark, 543 A.2d 491, (1988) citing Commonwealth v. Murphy, 346 Pa. Super.

438, 499 A.2d 1018, 1082 (Pa. Super 1985).

The Pennsylvania Supreme Court thoroughly analyzed and discussed this issue

inLark, the facts of which bear some similarity to the instant case. Commonwealth v.

Lark, 543 A.2d 491, (1988). In that case, the defendant was charged in a single

information with three separate criminal incidents, a February 1979 homicide; terroristic

48

•

I,

threats against a district attorney in November of 1979; and a kidnapping in January

1980.16 Lark at 495. The common denominator

of

in the three criminal episodes charged in

Lark was the December 1978 robbery for which the defendant was convicted

in

absentia following his flight at the conclusion of the Commonwealth's case in chief.

P. 494. The Lark Court affirmed the defendant's judgment of sentence finding no

Id.

error

in joining the separate criminal incidents for trial noting, "...the evidence of each of

the

offenses —murder —terroristic threats and kidnapping —would have been admissible

in a

separate trial for the others. Each of these offenses were interwoven in a tangled

threats, intimidation and criminal activity which arose from the robbery in 1978."

web of

j. At

487-498.

•

.

Like the defendant in Lark, Appellant was charged in a single information with

criminal offenses and criminal conduct to avoid arrest and prosecution after her crimes.

She was also charged with criminal acts which occurred prior to the homicide that

were

all part of the same whole, the intimidation of Frank Spencer. To try the Appellant

for the

arson and attempted homicide relative to Judy Dent without introducing Ms. Dent's

relationship to Frank Spencer and the recent arson of his residence is illogical and

unnecessary pursuant to law. We find the same is true of the murder of Frank Spence

r,

and the burglary and arson at his home. Appellant's perjury was plainly relevant as

to.

her consciousness of guilt.

16

In Lark, the defendant killed the Commonwealth's principal witness against him

after the witness testified at his

preliminary hearing. Following his conviction for robbery in absentia he proceede

d to terrorize and intimidate the

district attorney and when he was ultimately located by police as a fugitive from

justice he kidnapped a group of

Innocents to aid his attempt at escape.

49

Nor do we find that the jury was confused by the allegations of multiple criminal

acts at a single trial. To the contrary, the Information as charged led to a coherent and

organized trial which enhanced the clarity of the issues presented. The trial court

appropriately instructed the jury and we presume they followed our clear instructions.

If the years of criminal conduct, violence and threats of violence directed at the

late Frank Spencer and those close to him are not sufficiently related to each other to

warrant a single trial we fail to discern what would.

4.7

At 4.7 of her Concise Statement Appellant complains that the totality of errors

resulted in a fundamentally unfair trial that violated the due process rights of the

Defendant.

We decline to untangle this bald assertion which we interpret as prologue to

Appellants next six complaints. To the extent it is an independent issue we find that it is

waived for lacking specificity.

4.7.1

The Court erred in overruling counsel's objection to leading questions being used

on direct examination. See Day II, 112; 11-17; Day 111 103: 3-7; Day VI, 83: 12-17'

The court has discretion to control the "mode and order" of witnesses and may in

its discretion permit leading questions on direct examination where necessary to

develop the witnesses testimony. Pa. R. E. 611. Courts have had latitude to "liberally'

construe the rule on leading questions for over a century. Commonwealth v. Gurreri,

50

19.7 Pa. Superior Ct. 329, 332, 178 A.2d 808,809 (1962), quoting Commonwealth v.

Detrick, 221 Pa. 7, 15-16, 70 A. 275, 278 (1908). A trial court has "wide discretion in

controlling the use of leading questions." Commonwealth v. Fransén, 42 A.3d 1100 (Pa.

Super 2012). "The courts tolerance or intolerance for leading questions will not be

reversed on appeal absent an abuse of discretion. Id.

Given that Appellant's allegation of error addresses three distinct portions of the

transcript we will identify the allegations of error as A, B, and C. The record of counsel's

objections to leading questions is as follows:

A. Vol. 11,112; 11-17

Q. And was Sergeant Traugh

when you were present and you

had an opportunity to observe whatever you observed, was Sergeant

Traugh the office that normally took whatever Mr. Spencer's complaint

was?

---

Mr. Hoey: I object to the leading nature of the questions as well.

Mr. Siciliano: Yes

The Court: Well, at this point you're just trying to develop what

occurred, so just go ahead. (N.T.Vol. 11 p. 112)

Vol. 111103:3-7

Q. Do you recall during the conversation whether the Defendant

made any statements about

-

Mr. Hoey: Objection, your Honor, leading.

The Court: Overruled. Go ahead. Continuity here.

Q. Do you recall the Defendant making any statements regarding

her father and the shape he was in?

A. Yes, I had asked her. 1 said "How is your father doing?" Because

someone had mentioned that he had gotten out of the hospital. And she

said "He is doing great. He walked eight miles to my house today." Which I

was, you know—eight miles is quite a distance.

Mr. Forray: Thank you. I have nothing further.

51

C. Vol. VI, 83:12-17

Q. And did you share with him the fact what had happened?

Mr. Hoey: Objection to leading, your Honor.

The Court: No, overruled. GO ahead.

Q. Did you share with Trooper Fedder what had occurred at Mr. Spencer's

home?

A. Yes, I made sure or I asked the question if he was aware of the fire previously

at his home.

We overruled counsel's objections because none of the questions which were

objected to actually provided the witnesses with their response on an issue of real

consequence. In our judgment, counsel was asking appropriate questions aimed at

moving the trial along.

47.2

Appellant complains "The Court erred in allowing the Commonwealth and their

witnesses to use the term burglary" when describing the break-in. Day II, 118.: 4-21;

Day VI, 108-1.09; 23-5"

The Defendant was charged with burglary. We fail to discern the error in

permitting a layperson to refer to a break in where property was taken as a burglary. If

allowing such testimony was error, it is obviously harmless given the quantity and

quality of evidence presented against the Defendant at trial,

52

V

I,,

4.7.4

The Court erred when it declined to strike the testimony of Brian Wawroski after

Wawroski met with previous witnesses Derk Reed over lunch and discussed Reed's

testimony and the questions posed to Reed on cross.

At trial Defendant's counsel made an objection and moved to strike the

testimony of Brian Wawroski after the witness testified that he met with Derk Reed, a

witness who testified just prior to Mr. Wawroski. (N.T. Vol. VII

p. 137). The Defendant

argues that both witnesses Wawroski and Reed were sequestered and that because

Wawroski and Reed spoke about their testimony that the Court should strike the

testimony of Mr. Wawroski. We disagree.

The Court did issue a sequestration Order in the present case. Mr. Wawroski

also admitted that he spoke with Derk Reed who testified at the Defendant's trial the

previous day. (N.T. Vol. VII p. 137) The decision to sequester witnesses, and sanctions

for violating sequestration Orders entered pursuant to Pa. R.E. 615, is at the sound

discretion of the trial court. Commonwealth v. Counterman, 553 Pa. 370, 719 A.2d 284

(Pa. 1998). The fact that a violation of a sequestration order occurs does not, in and of

itself, lead to a finding that the prosecutor committed misconduct of such a nature that a

new trial is required. Commonwealth v. Pierce, 537 Pa. 514, 529, 645A.2d 189, 197

(1994). Further, the rules of evidence do not provide any sanction for violation of Rule

615. Pa, R.E. 615. However, the trial court, in its discretion, may impose sanctions on a

prosecution witness for violating a sequestration Order after considering the following

three factors: the seriousness of the violation; the impact on the witness's testimony;

53

and the probable impact on the outcome of the trial. Commonwealth v. Smith, 464 Pa.

314, 346 A.2d 757, 760 (Pa. 1975).

Although we hesitate to characterize any violation of a sequestration Order as

frivolous, we are confident that the impact on the witness's testimony was limited and•

that it had no impact on the outcome of the trial. Mr. Wawroski and Derk Reed were

both witness to the Defendant's statement that she, "watched him take his last breath of

fresh air", referring to the late Mr. Spencer. (N.T. Vol VII p 132). Mr. Reed testified that

after Frank Spencer's. death he argued with the Defendant at a football game at which

time she told him the "last thing he saw when he was laying on that ground looking up

was me." (N.T. Vol. VII P. 108). During his cross examination Dark Reed was

questioned about his ability to clearly hear the Defendant. (N.T. Vol VII p. 118-119)

Later, Mr. Wawroski, in response to the question, "(w)here were you sir?", answered

that he was in the end zone because, "It is quieter down there." (N.T. Vol. VII p. 130131).

By his own admission Mr. Wawroski did have contact with Mr. Reed after the

testimony of Mr. Reed, but before his own and that further Mr. Reed indicated that he

was questioned about what occurred on the field. (N.T. Vol. VII p. 138) It also appears

that Mr. Wawroski was careful to volunteer that it was quiet where he was standing in

response to the question (w) here were you sir?" His response, in light of his discussion

with Mr. Reed, suggests that it was at least in part informed by what he discussed with

Mr. Reed prior to testifying. Nonetheless, we find that the influence of Mr. Reed did not

change the witness's testimony in any material way or prejudice the Defendant.

54

,

The attorneys for the Commonwealth who were clearly not sequestered were

aware of the cross examination of Mr. Reed and could. have, if given the opportunity,

drawn out of Mr. Wawroski the testimony that they deemed a necessary response to the

cross examination of Mr. Reed. Mr. Wawroski testified that he told his wife what he had

heard immediately after the incident and he spoke informally with the then Columbia

County District Attorney about the matter. (NT. Vol. VU p. 133, 136) Mr. Reed also

testified that Mr. Wawroski was nearby as he argued with the Defendant at the football

game. (NT. Vol. VII p. 117-118)

The fact that Mr. Reed testified that Mr. Wawroski was nearby when the

statement was made, coupled with the testimony of Mr. Wawroski who stated that he

contemporaneously told his wife about the statement and then some time later, so

advised the then District Attorney corroborates his testimony that he overheard the

Defendant admit to Derk Reed that she was present at the time Mr. Spencer lay dying.

These factors weigh against the argument that his testimony was materially influenced

by his mid-trial with Mr. Reed. For these reasons, we find that the violation of the

sequestration is concerning but that it ultimately had no material impact of the testimony

of Mr. Wawroski's, and did not deprive the Defendant of a fair trial. Accordingly, we find

the Defendant was not prejudiôed and her appeal must fail.

4.7.5

55

Appellant Complains "The court allowed in hearsay over objection, specifically, Corporal

Williams to testifed to what Derk Reed had said. Day VII, 3637:222117"

This allegation of error is also meritless. Derk Reed testified at length about this

same incident and the Trooper recalled to the jury what he understood to be Derk

Reed's statements based on his investigation. Derk Reed was cross examined about

the statements the at trial the previous day and we found that the Trooper's reference to

Reed's statements were not offered for their truth and were not hearsay.

4.7.6

Appellant alleges that the Court committed reversible error when the "court allowed the

Commonwealth to recall Judy Dent for one question over counsel's objection. Day VII,

23-24; 21-4."

The decision to reopen the record is left to the sound discretion of the trial court.

Commonwealth v. Griffin, 412 A.2d 897 (Pa. Super. 1979). (See also Pa. R.E.

611 (a)(2) "The court should exercise reasonable control over the mode and order of

examining witnesses and presenting evidence so as to: (2) avoid wasting time.) The

admission of evidence is within the sound discretion of the Trial Court." Commonwealth

v. Passmore, 2004 Pa Super 336, 857 A.2d 679 (Pa 2004). Determinations of

admissibility will not be reversed on appeal absent a clear abuse of discretion.

Commonwealth v. Chmiel, 738 A.2d 406, 414 (1999) cert. denied. 528 US 1131 (2000).

The trial transcript pages identified by Appellant are inaccurate. Shannon Manclerbach's testimony occupies

pages 28 through 38 of Volume VII of the trial transcript. Trooper Williams' testimony begins at page 173 of

volume VII and continues Into volume VIII. Counsel's objection is found at page 37 of Volume VIII.

56

Indeed Ms. Dent was briefly recalled to testify about an encounter between

herself, the late Mr. Frank Spencer, and the Defendant. Ms. Dent went on to testify that

approximately two (2) weeks after the fire at her residence that the Defendant

confronted her in a public place and in essence asked her, "Julie how does life feel?"

Given that the Defendant was charged with the arson fire at Ms. Dent's residence and

further that this case involved a series of veiled threats made by the Defendant over the

course of years culminating in the homicide giving rise to her indictment, we found the

evidence relevant. Moreover, we found that the Defendant was in no way unfairly

prejudiced by our decision to reopen the record and permit additional testimony from

Ms. pent. Appellant's complaint of error is without merit and must fail.

4.8

Appellant alleges "the court erred in denying Defendant's motion for a change of venue

or venire."

The determination of whether to grant a change of venue rests within the sound

discretion of the trial court and will not be disturbed on appeal absent an abuse of

discretion." Commonwealth v. Weiss, 776 A.2d 958,964 (Pa. 2001) Pa.R.Crim.P.

584(a) provides that "(a)ll motions change of venue or for change of venire shall be

made to the court in which the case is currently, pending." Venue or venire may be

changed following a hearing when it is determined that a fair and impartial trial cannot

be had in the county where the case is pending. Pa.R.Crim.P.584(a).

.57

The Appellant's motion for change of venue was denied without prejudice by the

Order dated June 25, 2015.18 Counsel did not raise the issue prior to trial. There being

no evidence of record regarding pretrial publicity between the date of the June 22, 2015

Order denying the Defendant's Motion and jury selection which commenced November

9, 2015, we find no reason to disturb the judgment of the Court. Even where pretrial

publicity is sensational, inflammatory and slanted toward conviction, the passage of time

between the last complained of media coverage and jury selection may dissipate any

prejudicial effect toward the Defendant. Commonwealth v. Tharp, 830 A.2d 519 (Pa

2003)..

Given that over four months passed since Defendant made her motion for

change of venue and trial, we find that any prejudice visited on the defendant by media

coverage was sufficiently dissipated by the time the jury panel was seated. Moreover,

counsel conducted a thorough individual voir dire of the jurors and ultimately selected a

fair and impartial jury. Appellant was convicted by the ample evidence presented from

the witness stand.

4.9

Appellant finally complains "All of the above error, meaning the totality of the

error, resulted in a trial that was constitutionally infirm upon which the convictions for the

various offenses cannot stand."

' The Honorable Judge Brendan J. Vanston's June 22, 2015 was entered following the conduct of a hearing on

Defendant's Motion seeking change of venue or venire on June 17, 2015.

58

This allegation of error is catch all boilerplate and is therefore waived. Error is

either reversible or it is harmless. If the Appellant intends to invite us to create authority

for the proposition that a collection of harmless errors add up to reversible error we

decline her invitation.

For the foregoing reasons, the Defendant's Appeal should be Denied, and her

verdict and judgment of sentence affirmed.

END OF OPINION

59

Government of Virgin Islands v. Williams, 370 Fed,Appx. 294 (2010)

F

but impacted directly on presentation of

defendant's defense, thus warranting new

trial in first degree murder prosecution, even

though judge gave curative instruction, where

judge's opinion concerning witness and use

of marijuana was unsolicited and made in

overbearing or emphatic manner, and curative

instruction was vague.

370 Fed.Appx. 294

This case was not selected for

publication in the Federal Reporter.

Not for Publication in West's Federal Reporter See

Fed. Rule of Appellate Procedure 32.1 generally

governing citation of judicial decisions issued

on or after Jan. 1, 2007. See also Third Circuit

LAR, App. I, TOP 5.7. (Find CTA3 App. I, TOP 5.7)

United States Court of Appeals,

Third Circuit.

GOVERNMENT OF the VIRGIN ISLANDS

V.

Gregory WILLIAMS, Appellant.

No. 08-3521.

Argued: Dec. i, 2009.

Filed: March 17, 2010.

Synopsis

Background: Defendant was convicted of first degree

murder and related charges, and he appealed. The District

Court of the Virgin Islands-Appellate Division, 2008 Wi,

3377325, affirmed, and defendant appealed.

-.

Holding: The Court of Appeals, Nygaard, Circuit Judge,

held that trial judge's comments about eyewitness's

marijuana use deprived defendant of his right to fair trial.

I Cases that cite this headnote

*294

On Appeal from the District Court of the Virgin

Islands-Appellate Division (D.C. Criminal No. 3-05cr-00056-001), Chief Judge: The Honorable Curtis V.

Gomez, District Judge: The Honorable Raymond L.

Finch, Superior Court Judge: The Honorable Patricia D.

Steele.

Attorneys and Law Firms

Richard F. Della Fern, Esq. (Argued), Entin & Della Fera,

Fort Lauderdale, FL, Natalie Nelson Tang How, Esq., St.

Croix, VI, for Appellant.

Ernest Bason, Esq., Tcrryln M. Smock, Esq. (Argued),

Office of the Attorney General of Virgin Islands,

Department of Justice, St. Thomas, VI, for Appellee.

Before: McKEE, FUENTES, and NYGAARD, Circuit

Judges.

*295 OPINION OF THE COURT

Reversed and remanded.

NYGA A RD. Circuit Judge.

Fuentes, Circuit Judge, concurred and filed opinion.

1.

**1

West IJeaclnoles (I)

Ill

Criminal Law

hxprcssions affecting credibility of

Appellant Gregory Williams was convicted by a

jury of first degree murder and related charges involving

assault and illegal use of weapons. Judge I've Arelinglon

Swan presided and Williams was sentenced to life in prison

without parole.

witnesses

Trial judge's comments that fact that

eyewitness had been smoking marijuana

did not affect his perception not only

improperly bolstered witness's testimony,

':'T

Iirh

Williams appealed his conviction to the District Court foi

the Virgin Islands. His appeal was heard by a three-judge

panel of that court's appellate division (Judges Gomez,

Finch and Steele

). He challenged the sufficiency of the

Government of Virgin Islands v. Williams, 370 Fed.Appx. 294 (2010)

evidence and argued that comments made by the trial

judge deprived him of a fair trial. The District Court

affirmed Williams conviction and he has timely appealed.

Because we conclude that the trial judge's comments so

infected the trial, and his attempts at a curative instruction

were too little, too late, and could not purge the injustice,

we will reverse and remand for a new trial.

We have held that "no person [may] be deprived of his

interests in the absence of a proceeding in which he

may present his case with assurance that the arbiter is

not predisposed to find against hint" U"ang i. ilitorner

Geiwinl, 423 F.3d 260. 269 (3d Cir.2005) (quoting

Marshall a Jeri'ico, Inc.. 446 U.S. 238, 242. 100 S.Ct.

1610, 64 L.Ed.2d 182 (1980)). That assurance is absentand judicial conduct improper-whenever a judge appears

biased, even if he actually is not biased. See In re Anlar

(SEC v. ilniar). 71 F.3d 97. 101 (3d Cir,1995), Public

confidence in the judicial system turns on "the appearance

of neutrality and impartiality in the administration of

justice." LaSalle IVai'/ Bank r. First Co;in. Holding Gr.,

LLC .VXJYL 287 F.3d 27).. 292 (3d Cir.2002). Thus, even

if the trial judge here was not actually biased-and we do

not speculate as to his state of mind-the "mere appearance

of bias" on his part "could still diminish the stature" of

the judicial process he represents. See Cleimnous i'. Wolfe.

377 F.3d 322, 327 (3d Cir.2004). In other words, "justice

must satisfy the appearance of justice." 0//itt! a United

.States, 348 U.S. 11, 13. 75 S.Ct. 11. 99 LEd. 11(1954);

see also Peters v. .Ki/ft 407 U.S. 493. 502, 92 S.Ct. 2163.

33 L.Ed.2d 83 (1972). On this record, such an appearance

was not satisfied.

111.

The bias of the trial judge here centers on comments

he made during the cross examination of a prosecution

witness. Raymond Smith was an eyewitness to the murder.

He had given a statement to the police describing the

perpetrator as "Pile was like five ten, like 150 to 170, had

on a black, black and white plaid shirt and he had a low

haircut." Smith also admitted at trial that he had been

smoking marijuana before his encounter. He testified that

"the weed does-don't affect you mentally-it just give you

a natural high." He also acknowledged that he saw te

gunman for a "split second" and then never saw him again.

When defense counsel attempted to challenge Smith's

ability to identify Williams given the fact that he was

enjoying his "natural high," counsel was admonished

by the trial judge who made the following comment in

the presence of the *296 jury, and while sustaining an

objection by the prosecution:

**2 But get to the-get to the

perception. Because I'll tell you

something. There's a lot of people

I does smell that they be smoking,

smoking thing, as you pass the cars,

and they're better drivers than a lot

of these other people on the road

that just can't drive.

Judge Swan continued with additional commentary:

So. my policies might be different

from all the other judges. But, then

again, I have been here longer than

all the other judges. I'm the most

senior associate judge so I don't-I

have been doing this for a long time

and nobody has ever found fault

with it. So 1 don't follow the young

folks. 1 go with my own policy. I've

been around longer than all of them.

Three of them put together don't

have as much years as I have. So, I

have my own policy.

0/gin, 745 F.2d 263 (3d Cir. 1984),

In United States

we set out the appropriate analysis for courts to use in

assessing the propriety of a trial judge's comments before

the jury. We explained that "[t]here is no bright line

separating remarks that are appropriate from remarks

that may unduly influence a jury". Id. at 268-69. This

analysis requires a balancing of the following four factors:

(1) the materiality of the comment, (2) its emphatic

or overbearing nature, (3) the efficacy of any curative

instruction, and (4) the prejudicial effect of the comment

in light of the jury instruction as a whole. Id.

A. Materiality

Government of Virgin Islands v. Williams, 370 Fed.Appx. 294 (2010)

-

._.r

s

*

Here, the trial judge's comments occurred during the

cross-examination of Raymond Smith. Defense counsel

asked Smith whether he had been smoking marijuana

before the shooting. Raymond Smith replied in the

affirmative. The prosecutor objected on grounds of

relevancy. Defense counsel responded that Raymond

Smith's testimony about whether he had been smoking

marijuana was relevant to show his ability to perceive

the shooting. The trial judge sustained the objection,

explaining his ruling with the aforementioned comments,

in the presence of the jury.

We have no difficulty finding his comments material.

The trial judge's comments not only improperly bolstered

a witness's testimony, but impacted directly on the

presentation of Williams' defense. Defense counsel

attempted to discredit Smith's testimony by pointing to

Smith's own admission that he was high on marijuana

when he saw the gunman. We have no doubt that the trial

judge's statement could be viewed by the jury as vouching

for Smith's testimony and supporting his ability to identify

the gunman.

B. Emphatic and Overbearing Comments

In U/ljle(1 States i. Gainer, we discussed the limitations on

the court's power to comment on the evidence:

Unquestionably, any comment by a

trial judge concerning the evidence

or witnesses may influence a

jury considerably, and emphatic

or overbearing remarks particularly

may be accepted as controlling, thus

depriving a defendant of his right to

have questions of fact and credibility

determined by the jury. If the judge

exercises restraint in his comments,

however, and makes it clear in his

charge that the jury remains the sole

determiner of credibility and fact, he

has not overstepped the permissible

limits of comment.

**3 450 F.2d 186. 189 (3d Cir.197l). We conclude that

the trial judge's unsolicited opinion concerning the witness

and the use of marijuana was made in an overbearing

*297 or emphatic manner. First, the trial judge made this

comment while sustaining the prosecutor's objection:

[DEFENSE ATTORNEY]: Your eyes get red when

you're smoking weed?

[RAYMOND SMITH]: Yes.

Q: Does it affect your ability to move?

A: No, sir.

Q: Can you-do you drive a car?

A: Yes, sir.

Q: Can you drive a car the same when you're not on

weed as when you're on weed?

[PROSECUTOR]: Objection, Your Honor. They don't

have an expert.

[DEFENSE ATTORNEY]: I'm trying to see how it

affects him.

THE COURT: But get to the-get to the perception.

Because I'll tell you something. There's a lot of people

I does smell that they be smoking, smoking thing, as

you pass the cars, and they're better drivers than a lot

of these other people on the road that just can't drive.

This comment took place while the trial judge was

ruling on an objection. The judge spoke emphatically

("But, let me tell you something ...") in sustaining the

prosecutor's objection, and in so doing, came very close

to implicitly dismissing an important part of the defense's

case in the eyes of the jury. Second, in attempting to

impress the jury with his reputation as a jurist, the trial

judge's further comments touting his trial experience and

longevity is overhearing and compounded the error. Such

extemporaneous commentary by the trial judge deprived

Williams of his right to have questions of fact and

credibility determined by the jury.

C. Efficacy of any Curative Instruction

The trial judge made an attempt to cure the error by an

instruction to the jury. He said:

Anything that I have said in terms

of marijuana, that is-I'm going to

order that stricken from the record.

What that means is that in your

consideration of this case, you're

not to consider anything whatsoever

Government of Virgin Islands v. Williams, 370 Fecl.Appx. 294 (2010)

•

that I mentioned about marijuana.

Only what the witnesses said from

the witness stand.

Given our previous findings of the materiality and

forcefulness of the trial judges statements, we do not find

his instruction sufficient to mitigate any prejudice against

Williams. First, the trial courts instruction was not given

at the time of the objection, or even in close proximity

thereto. Second. the trial court's curative instruction was

too vague in that it only told the jurors to "disregard

anything I have said in terms of marijuana."

D. Totality of the Instruction

The true impact of the trial courts's statement was

that it supported the testimony of a prosecution

eyewitness to the murder-an eyewitness the defense

was attempting to challenge as unreliable. The trial

judge further compounded the difficulty presented by

this comment when he emphasized his experience and

judicial superiority over the other members of the bench

who, presumably, would not have said what he said

regarding the use of marijuana. Given the permeating

and prejudicial nature of the trial judge's comments,

we find this to be one of those cases where "the trial

judge's comments are so out of bounds that no cautionary

instruction to the jury could remove their prejudicial

effect." 0/gin, 745 F.2d at 268-69.

*298 E. Balancing the Comments against the need for

reversal

**4 We conclude that the scales tip sharply in favor of

reversing Williams' conviction and remanding this matter

for a new trial.

Iv.

The trial judges comments here deprived Williams of a

fair trial. We will reverse his conviction and sentence and

remand this case for a new trial.

FLJENTES. Circuit Judge, concurring.

I agree with the majority opinion that the trial judge's

comments during Smith's testimony were inappropriate.

1 write separately to emphasize an additional prejudicial

comment by the trial judge that I believe affected the

fairness of Williams's trial. At trial, Makeda Petersen was

called as a witness to testify by the Government, and

she testified that Williams was not the shooter at the

scene. The Government, dissatisfied with her testimony,

moved to have Petersen declared a hostile witness under

Federal Rule of Evidence 611(c). The court agreed with

the Government, and then, in the presence of the jury,

stated that it had declared Petersen to be a hostile witness.

The trial judge went on to state that the court "deems

her to be uncooperative and evasive, and particularly

twice she has rejected questions by the Government

calling her." (Supp App. 365-66 (emphasis added).) The

prejudicial effect of remarks like this underscores why

courts should not explain evidentiary rulings in the jury's

presence. The trial judge's characterization of Petersen's

testimony as "uncooperative and evasive" could very well

have influenced the jury's assessment of whether or not

to credit her testimony. See Qifercia v. United States, 289

U.S. 466, 470, 53 S.Ct. 698, 77 LEd. 1321 (1933). In a

case such as this, in which the jury heard contradictory

accounts of the critical events and its ultimate decision

depended upon whether it believed Petersen's testimony,

judicial statements bearing upon the credibility of a

witness, such as the trial judge's characterization of

Petersen's testimony here, could be highly influential. ci.

United Stcites v. .4n1on. 597 F.2d 371. 374 (3d (Jr. 1979)

("a strongly worded comment by the court questioning

the defendant's credibility may well overbear the jury's

ability to make independent fact findings"). Given that no

curative instructions were given with respect to the judge's

statements about Petersen's testimony, I believe that the

judge's comments concerning Petersen, in addition to

those regarding Smith, were sufficiently prejudicial to

Williams to require a new trial in this case.

A l l Citations

370 Fed.Appx. 294, 2010 WL 939916

Footnotes

1

The Honorable Patricia D. Steele, Judge of the Superior Court, Division of Saint Croix, sitting by designation.

# l,_

FW

I's ~

0IM

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 90 MAL 2018

Respondent

Petition for Allowance of Appeal from

the Order of the Superior Court

V.

MARIA I. SANUTTI-SPENCER,

Petitioner

ORDER

PER CURIAM

AND NOW, this 26th day of June, 2018, the Petition for Allowance of Appeal is

DENIED.

A True Copy Amy Dreibelbis, Esquire

As Of 6/26/2018

SupremetjCo

C*

3 Pennsytvanie

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Petition for Writ of Certiorari — Maria I. Sanutti-Spencer, Petitioner v. Pennsylvania | Frix