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NON-PRECEDENTIAL DECISION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
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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.
IMIC
.
~~Me
Judgmen
nt of sen
tence aff
t Entered
.
seph D.
Seletyn,
Es/'
Prothono
tary
3
Date: 1/1
1/2018
irmed. Ju
risdiction
relinquish
ed.
I'l]
'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,_
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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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