Petition for Writ of Certiorari — Heron v. Pennsylvania

86 1498) [ erort

| MAR 18 1987

#WOSEPH F. SPANIOL, JR,

CLERK al

IN THE

SUPREME COURT OF THE UNITED STATES

Term, 19

No.

ELIZABETH J. HERON,

Petitioner,

v.

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA

STANLEY W. GREENFIELD,

Counsel for Petitioner,

Elizabeth J. Heron

GREENFIELD & MURTAGH

728 Fifth Avenue

Pittsburgh, Pennsylvania 15219

Telephone: 412-261-4466

1.

QUESTION PRESENTED

FOR REVIEW

Whether the trial court violated the

accused's right of due process by

admitting evidence of motive in the

belief that even absent any proof of

actual knowledge "reason and

experience" demonstrate that the mere

existence of a spousal relationship alone

permits the jury to make the inference

that a wife knows about the insurance

her husband carries?

PARTIES TO THIS PROCEEDING

IN THE COURT BELOW

Petitioner's alleges’ co-conspirator was tried

and convicted of first degree murder in the matter

of Commonwealth v. Anthony Victor Ferraro at

Allegheny County, Pennsylvania, Criminal Control

Number CC 8107528A0. Mr. Ferraro did not appeal

his conviction nor seek collateral relief.

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TABLE OF CONTENTS

Question Presented For Review

Parties To This Proceeding

In The Court Below

Table Of Contents And

Table Of Authorities

Opinions Below

Statement Of Jurisdiction

Constitutional Provisions

Involved In This Case

Statement Of The Case

Reason Relied Upon For The

Allowance Of The Writ

Conclusion

Certificate Of Service

Appendix:

(1) Order Of The Supreme Court

Of Pennsylvania, Western

District, Dated January 9, 1987

PAGE

3-4

19-20

la

TABLE OF CONTENTS

(2) Order And Memorandum

Of The Superior Court

Of Pennsylvania, Pittsburgh

District, Dated June 4, 1986

(3) Opinion Of The Court Of

Common Pleas Of Allegheny

County, Pennsylvania,

Criminal Division, Dated

September 19, 1984

TABLE OF AUTHORITIES

CASES

Commonwealth v. Boden, 399 Pa. 298,

159 A.2d 894 (1960)

Commonwealth v. DiFrancesco, 458 Pa.

188, 329 A.2d 204 (1974)

Commonwealth v. Ciacobbe, 341 Pa. 187,

19 A.2d 71 (1941)

Commonwealth v. Shain, 493 Pa. 369,

426 A.2d 589 (1981)

Turner v. United States, 396 U.S. 398

(1970)

PAGE

28a-63a

14

15

14

14

16

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OPINIONS BELOW

The Court of Common Pleas of Allegheny

County, Pennsylvania, Criminal Division, entered an

Opinion denying Petitioner's post-verdict motions.

A copy of that Opinion appears in the Appendix at

pp. 28a-63a.

The Superior Court of Pennsylvania, Sitting

at Pittsburgh, affirmed the judgment of conviction

and sentence imposed thereon in an Order and

Opinion issued June 4, 1986. A copy of that Opinion

appears in the Appendix at pp. 2a-27a.

The Supreme Court of Pennsylvania entered

a "Per Curiam" Order denying Petitioner's Petition

for Allowance of Appeal on January 9, 1987. A

copy of that Order appears in the Appendix at p. la.

STATEMENT OF JURISDICTION

The Judgment and Order of the Supreme Court

of Pennsylvania was entered on January 9, 1987.

The jurisdiction of the Supreme Court of the United

States is invoked under Title 28 United States Code

Section 1257(3).

CONSTITUTIONAL PROVISIONS

INVOLVED IN THIS CASE

The Fourteenth Amendment to the

Constitution of the United States provides:

. - » nor shall any state deprive any

person of life, liberty, or property,

without due process of law; nor deny

any person within its jurisdiction the

equal protection of the laws.

The Fifth Amendment to the Constitution of

the United States provides:

. - nor be deprived of life, liberty,

or property, without due process of

law.

STATEMENT OF THE CASE

Procedural

This petition is before the Court from the

denial of Petitioner's Allowance of Appeal by the

Pennsylvania Supreme Court on January 9, 1987.

Petitioner, Betty Heron, was found guilty after jury

trial, and sentenced to life imprisonment after the

trial court denied all post-trial motions on

September 19, 1984. Tne Superior Court of

Pennsylvania affirmed the findings of the trial court

on June 5, 1986. An Application for Reargument

was denied by the Superior Court on July 25, 1985

and Petitioner then sought relief in the Pennsylvania

Supreme Court.

Background

On August 5, 1981 Anthony Ferraro murdered

David Heron. After a trial in March of 1982,

Ferraro was convicted of first degree murder.

After his own trial, but before sentence, Ferraro

of

cooperated with authorities and then testified at

Mrs. Heron's trial claiming that she had paid him

to kill her husband. At the very time of his

testimony, Ferraro, who had admitted committing

perjury at his own trial, was being treated and

medicated for mental illness at Mayview State

Hospital.

He testified that Mrs. Heron paid him

$2,500.00 in cash prior to the murder, and $900.00

in cash and a $500.00 check after the killing, which,

in contradiction, he also admitted in other

testimony was for paving Mrs. Heron's driveway.

He also contended that the balance of the $5,000.00

contract price was realized through savings from

purchasing Mrs. Heron's truck at a reduced price.

Mrs. Heron testified that she was acquainted

with Ferraro through her employment. Prior to

the killing, she had met Ferraro a total of seven

times. The two were never romantically involved

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and had not talked at all for over a month prior

to the killing. Mrs. Heron denied asking Ferraro

to kill her husband, or paying him to do so. She

testified that the only money she ever paid him

was a $500.00 check for the repair of her driveway.

Ferraro was supposed to give the check to a

construction company, but failed to do so and kept

the money for himself.

At the time of the murder, Mr. and Mrs.

Heron were in the process of obtaining a divorce,

originally filed by Mrs. Heron and were negotiating

a settlement proposal from Mr. Heron.

As evidence of motive at her trial, the

Prosecution was allowed to introduce the payment!

1. Petitioner objected to the introduction of this

evidence at trial on due process grounds (T.T.

303-315). Petition renewed the objection in

her Post-Trial Motions, and before’ the

Superior Court of Pennsylvania and the

Supreme Court of Pennsylvania the trial

court's opinion dealt with this issue at pages

45a-46a. The Superior Court's Opinion deals

with this issue at pages 13a-14a.

- 10 -

to Mrs. Heron of the proceeds of a life insurance

policy on the life of her deceased husband.

Petitioner argued unsuccessfully that the evidence

was admissible only if the state first proved that

she knew of the existence of the policy prior to

the murder.

After the admission of this evidence, and as

evidence of her lack of knowledge of the existence

of the policy prior to the murder Mrs. Heron

testified that when she consulted her attorney,

regarding the settlement of her late husband's

estate, she did not know if her husband had life

insurance. At the same time, that attorney

testified that Mrs. Heron "did not seem to have a

very good handle on what her husband had", from

which he formed the impression "that the Herons

had not really been close for a couple of years".

She also introduced evidence that at the very

time of his death, David Heron had an insurance

= ii -

policy payable to his first wife, and that he had

joint bank accounts with his children by his first

marriage.

» 12 «

REASON RELIED UPON FOR THE

ALLOWANCE OF THE WRIT

THE TRIAL COURT VIOLATED THE

ACCUSED'S RIGHT TO DUE PROCESS

BY ADMITTING EVIDENCE OF MOTIVE

IN THE BELIEF THAT EVEN ABSENT

ANY PROOF OF ACTUAL KNOW-

LEDGE "REASON AND EXPERIENCE"

DEMONSTRATE THAT THE MERE

EXISTENCE OF A SPOUSAL RELA-

TIONSHIP ALONE PERMITS THE JURY

TO MAKE THE INFERENCE THAT A

WIFE KNOWS ABOUT THE INSURANCE

HER HUSBAND CARRIES.

The court admitted evidence of the existence

of a life insurance policy on the deceased which

named the Petitioner as_ beneficiary. The

acquisition of the insurance proceeds was the

alleged motive for the murder. The Petitioner

unsuccessfully objected that due process required,

that the prosecution produce some proof that the

wife knew of the policy's existence prior to the

murder, before the evidence could be admitted.

This proposition is consistent with Pennsylvania law

with respect to the use of insurance proceeds as

« 3

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evidence of motive for murder and the criminal

standard of knowing, intentional conduct.

Commonwealth v. Boden, 399 Pa. 298, 159 A. 2d

894 (1960); Commonwealth v. Giacobbe, 341 Pa.

187, 19 A. 2d 71 (1941).

Under Pennsylvania law the prosecution is

never required to prove motive as an element of

acrime. But, it must do so by competent evidence

should it elect to prove motive. Commonwealth

v. Shain, 493 Pa. 360, 426 A.2d 589 (1981).

To carry its burden of proving that the

accused knew of the existence of the policy prior

to the murder, the prosecution offered only two

facts: 1.) the existence of the marital relationship

between the accused and the deceased, and 2.) the

payment of the proceeds of an insurance policy on

the life of the deceased to the accused.

Without citing any authority for’ the

proposition, and drawing on his own marital

—" 2

experience, the trial judge held that "reason and

experience" demonstrate that the mere status of

marriage permits the inference that a wife is fully

knowledgeable about her husband's finances. (T.T.,

pps. 312-313).

Petitioner argued that reason and experience

clearly demonstrate no consistent relationship

between the status of marriage and the existence

of knowledge by one spouse of the other's financial

affairs, and thus the jury should not be allowed to

know of the payment of the proceeds, given the

obvious potential for impermissible prejudice.

The Supreme Court of Pennsylvania has held

that identical due process standards apply regardless

of whether a challenged inference of fact is

authorized by statute or common - law precedents.

Commonwealth v. DiFrancesco, 458 Pa. 188, 329

A. 2d 204 (1974).

*-9% «

This Court itself has held that with respect

to statutory inferences, due process requires that

the inferred fact follow more-likely-than-not from

the presumed fact. Turner v. United States, 396

U.S. 398 (1970).

We find it inconceivable that it can be

inferrred that a married woman is more likely than

not to know of her husband's insurance policies,

merely because she is married to him and

particularly where as here, the parties were

somewhat estranged.

There is no authority in Pennsylvania or

elsewhere for that proposition. This evidence as

to motive was so patently prejudicial that its

admission could never be considered harmless, given

the facts of this case. The evidence against the

Petitioner was circumstantial, in precisely which

type case, motive evidence immeasurably reinforces

the prosecution's theory.

a 6 «

CONCLUSION

For the reasons set forth herein, it is

respectfully submitted that this Petition for a Writ

of Certiorari to the Supreme Court of Pennsylvania

should be granted.

Respectfully submitted,

GREENFIELD & MURTAGH

Kear Whe p..tp

snares W. GreenHeld,

Atto mth for mecha 7

Elizabeth J. Heron

» 48 «

CERTIFICATE OF SERVICE

COMMONWEALTH OF PENNSYLVANIA )

) SS:

COUNTY OF ALLEGHENY )

I hereby certify that on the 16th day of March,

1987, three (3) true and correct copies of the

foregoing PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT, were served on each

of the individuals and in the manner indicated

below, which service satisfies the requirements of

Rule 28 of the United States Supreme Court Rules.

SERVICE BY FIRST CLASS, UNITED

STATES MAIL, POSTAGE PREPAID:

Robert Colville, Esquire

District Attorney of Allegheny County

401 Courthouse

Pittsburgh, Pennsylvania 15219

o $0 «

BEST AVAILABLE COPY

GREENFIELD & MURTAGH

Stanley W. eee hase fats

Attorney for Petitioner,

Elizabeth J. Heron

SWORN to and subscribed before me

moe SP

this ‘16th day of March, 1987.

ay Public

My Commission Expires: JANE C. CINDINSER. NOTARY PUBLIC

PITTSBURGH. ALLEGHENY COUNTY

MY COMMISSION — JUNE 7, 1988

Member, Pears,’ - ciation of Notaries

o 99 «

FT ST eee ee |

The Supreme Court of Pennsylvania

Western District

Prothonotary 801 City-County Building

Irma T. Gardner Pittsburgh, PA

Deputy Prothonotary (412) 565-2816

January 15, 1987

Stanley W. Greenfield, Esquire

Greenfield & Murtagh

728 Fifth Ave.

Pittsburgh, Pa. 15219

In Re: Commonwealth v. Betty Heron, ete.

No. 469 W. D. Allocatur Docket 1986

Dear Mr. Greenfield:

The Court has entered the following Order

on your Petition for Allowance of Appeal in the

above matter:

"January 9, 1987

Petition Denied.

‘~PER CURIAM"

Very truly yours,

/s/ Irma T. Gardner

DEPUTY PROTHONOTARY

ITG:cho

ee: Robert L. Eberhardt, Esq.

Hon. Robert D. Dauer (Tamilia, J.)

la

ee es

SUPERIOR COURT OF PENNSYLVANIA

PITTSBURGH DISTRICT

COMMONWEALTH OF

PENNSYLVANIA

Vv. : NO. 45

PITTSBURGH 1984

BETTY HERON

APPEAL OF:

ELIZABETH J. HERON

ORDER

AND NOW, this 4th day of June, 1986, it is ordered

as follows:

Judgment of Sentence affirmed.

BY THE COURT

/s/ Eleanor R. Valecko

DEPUTY PROTHONOTARY

2a

COMMONWEALTH OF : IN THE SUPERIOR

PENNSYLVANIA : COURT OF

: PENNSYLVANIA

V.

PITTSBURGH 1984

BETTY HERON :

APPEAL OF: > NO. 00045

ELIZABETH J. HERON : PITTSBURGH 1984

Appeal from the judgment of sentence

of December 29, 2983 in the Court of

Common Pleas of Allegheny County,

Criminal Division, at Nos. CC 8206994

and CC 8207086.

BEFORE: BECK, JOHNSON AND

MONTGOMERY, JJ.

PER CURIAM: FILED: JUNE 4, 1986

Judgment of sentence affirmed.

3a

COMMONWEALTH OF : IN THE SUPERIOR

PENNSYLVANIA : COURT OF

: PENNSYLVANIA

V.

PITTSBURGH 1984

BETTY HERON :

APPEAL OF: : NO. 00045

ELIZABETH J. HERON : PITTSBURGH 1984

Appeal from the judgment of sentence

of December 29, 2983 in the Court of

Common Pleas of Allegheny County,

Criminal Division, at Nos. CC 8206994

and CC 8207086.

BEFORE: BECK, JOHNSON AND

MONTGOMERY, JJ.

MEMORANDUM™:

Appellant was found guilty of conspiracy and

murder. She was sentenced to life imprisonment.

She raises seven (7) issues on this direct appeal.

We affirm.

Betty Heron became acquainted with Anthony

eerraro through her job as a sales clerk with a

meat wholesaler. Mr. Ferraro ran the cafeteria in

the Federal building in Pittsburgh and used to order

supplies from Mrs. Heron over the phone. In

4a

time, a friendship was established between the two.

As their friendship became stronger, Mrs. Heron

began telling Mr. Ferraro about the difficulty she

was having in her marriage to David Heron. She

described how intolerable her homelife was and how

she wished her husband were dead. She asked Mr.

Ferraro if he knew someone who would shoot her

husband for her or if he would do it himself. At

first Mr. Ferraro demurred but eventually he agreed

to kill David Heron for the sum of $5,000.00. Mrs.

Heron paid him $2,500.00 in cash prior to the job

and told him where to find David Heron. On August

5, 1981, Anthony Ferraro followed David Heron

from his job to a nearby diner, waited for him in

the parking lot, accosted him while he (David Heron)

was sitting in the cab of his pick-up truck. and

shot him twelve (12) times with two handguns.

Two days after her husband's death, Mrs.

Heron paid Ferraro another $900.00 in cash and

5a

$500.00 in the form of a personal check. To make

up the remaining $1,100.00, Mrs. Heron later sold

her late husband's pick-up truck, valued at

$4,600.00, to Ferraro for $3,500.00. Anthony

Ferraro was arrested for the first degree murder

of David Heron, tried, convicted and sentenced to

serve life in prison. He was the principal witness

against appellant in the present case.

Appellant's first contention is that a remark

made by the District Attorney during closing

argument was unduly prejudicial and improper. The

remark referred to other bank accounts of

appellant's from which the case payments to

Ferraro might have been made.

6a

. « The Commonwealth comes into

every Courtroom in every case with

that burden. We do so in this case.

What~-[w]le cannot do, however, is

answer the unanswerable. I can only

send the detectives out and

investigate what can be investigated.

They can only go and collect the

evidence that exists. They cannot get

into somebody's mind to bring in

evidence. So when Mr. Gondelman,

for example, when he _ says the

$2,500.00 in cash. The Commonwealth

has no proof from Mrs. Heron's

bookkeeping records where the

$2,500.00 in cash came from. He is

absolutely right, I cannot prove that.

I cannot do that. I have no evidence

to give you where the $2,500.00 came

from because the only place I can go

to lok at is from the backs of the

checks which we had and we only had

the one bank. We only have the one

account but where else can you go to

gather the evidence. I guess the point

is when the Commonwealth has to

pro®e its case beyond a reasonable

doubt, keep in mind about what type

of evidence that exists when the

Commonwealth goes to get the

evidence. The only thing I can do is

Betty Heron takes the stand, I say to

her that we have subpoenaed the bank

records: Do you have any other bank

accounts? And low and behold she

says she has one at Parkvale Savings.

We don't have the bank records for

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Parkvale Savings. You have to know

it exists before you can search it.

N.T., Closings, 71-72 (emphasis added).

Following District Attorney Lees' last

comment, a side bar conference was held at which

appellant's trial attorney stated that’ the

Commonwealth had been aware of appellant's

Parkvale account since the coroner's inquest and

that the implication of a secret bank account was

improper. Appellant did not, however, move for a

mistrial. The District Attorney continued his

closing as follows: ‘'

* * *

MR. LEES (for the Commonwealth):

Ladies and gentlemen of the jury, so

you know the area of dispute between

Mr. Gondelman and myself, is whether

or not we Knew about the existence

of a bank account. In all fairness to

Mr. Gondelman, Mrs. Heron did testify

about an account at Parkvale Savings.

It is our position — it is the

Commonwealth's position that we

need a bank account number. The

only bank account number we had for

Mrs. Heron was the bank account that

8a

was on the check. Mr. Gondelman

knows that. He cannot dispute that

fact. That is the one we _ had

subpoenaed by the number and that is

the only one that we subpoenaed by

number. The only point I am trying

to make is that you cannot know

where the $2,500 came from. The

only point I am trying to make is that

the only account number we had was

the number she had on the bank check

which we brought in the record. That

is simply the point, if I misled you, I

misled you, I apologize. The only bank

account we subpoenaed was the one

that we had the number on. That is

all we can subpoena.

Id. at 76-77.

The applicable law on_ prosecutorial

miseonduet was condenced (sic) in Commonwealth

v. Youngkin, 285 Pa. Super. 417, 427 A.2d 1356

(1981).

9a

It has often observed that the

prosecuting attorney in a criminal

case occupies a peculiarly sensitive

position as both an officer of the court

seeking justice and as a(n] agent of

the state attempting to assure

effective law enforcement.

Commonwealth v. Starks, 479 Pa. 51,

387 A.2d 829 (1978); Commonwealth

v. Collins, 462 Pa. 495, 341 A.2d 492

(1975); Commonwealth v. Guess, 266

Pa. Super. 359, 404 A.2d 1330 (1979).

In recognizing this singular staton and

the influence it might exert on the

jury, the appellate courts of this

Commonwealth have been careful to

scrutinize the trial transcript for

prosecutorial comments prejudicial to

an accused. Nevertheless, we have

always recognized that not every

intemperate or uncalled for remark by

the prosecutor requires a new trial.

Commonwealth v. Jarvis, 482 Pa. 598,

394 A.2d 483 (1978); Commonwealth

v. Perkins, 473 Pa. 116, 373 A.2d 1076

(1977;. Rather, "[t]he language must

be such that its ‘unavoidable effect

would be to prejudice the jury forming

in their minds fixed bias and hostility

toward the defendant, so that they

could not weigh the evidence and

render a true verdict.™

Commonwealth v. Stolzfus, 462 Pa.

43, 61, 337 A.2d 873, 882 (1975),

quoting Commonwealth v. Simon, 432

Pa. 386, 394, 248 A.2d 289, 292 (1968).

Moreover, the effect of such remarks

is largely dependent upon_ the

10a

atmosphere at trial, Commonwealth v.

Mikesell, 475 Pa. 589, 381 A.2d 430

1977); Commonwealth v. Dickerson,

406 Pa. 102, 176 A.2d 421 (1962);

Commonwealth v. Reynolds, 254 Pa.

Super. 454, 386 A.2d 37 (1978), and

the proper action to be taken, upon

objection, is within the discretion of

the trial court. Commonwealth v.

Jarvis, supra; Commonwealth _v.

Stolzfus, supra; Commonwealth v.

Silvis, 445 Pa. 235, 284 A.2d 740

1971). Finally, when the cumulative

effect of any improper remarks so

prejudices the jury as to prevent a

fair trial, reversible error exists.

Commonwealth v. Simon, — supra;

Commonwealth v. Reynolds, supra.

Id. at _—, 427 A.2d at 1362.

Our review of the record indicates that the

jurors could not have been so prejudiced by this

one remark as to have been unable to render a

true verdict. The jury was aware that appellant

had other accounts than her checking account from

her own testimony on cross-examination.

lla

Q: Mrs. Heron, did you ever have any

other account, other than the one we

talked about here?

A: DidI1...1Ihad a passbook savings

account, I mean a Certificate at

Parkvale.

N.T., 551. The District Attorney only drew to the

attention of the jury an inference from the evidence

that they were able to make for themselves.

Appellant suggests as a sub-issue that the

District Attorney misstated the law when he said

that he could not subpoena the Parkvale Savings

account because he did not know the account

number. The trial court held that this statement

at most constituted harmless _ error. See

Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155

(1978). We agree. As the Court in Story stated,

"although the accused is entitled to a fair trial, he

is not entitled to a perfect one." Id. at _, 383

A.2d at 164.

Appellant's second contention is that the court

erred by admitting evidence of the amount of David

12a

Heron's life insurance without first establishing that

appellant knew of the existence of that policy.

Appellant cites Commonwealth v. Boden, 399 Pa.

298, 159 A.2d 844, cert. denied, 364 U.S. 846 (1969),

wherein the Court held that statements made by

the defendant regarding the insurance money he

would receive when his wife died were admissible

to show motive. From this holding appellant

suggest (sic) that it is necessary that the

Commonwealth establish that the defendant knew

of the policy before it can properly be admitted.

Appellant's argument is unpersuasive. We see no

need to expand the holding in Boden to limit the

admissibility of relevant evidence merely because

there is no evidence showing that the defendant

knew that he or she would profit from his or her

crime. Indeed, in Commonwealth v. Riley, 458 Pa.

390, 326 A.2d 384 (91974) (sic), the Court held that

existence of an insurance policy on defendant's

\3a

wife's life was admissible to show motive. That

opinion does not state that the Commonwealth

proved that defendant knew he would benefit from

the policy nor will we read in such a requirement.

We therefore hold that the trial court did not err

by allowing David Heron's insurance policy to be

admitted into evidence without first requiring the

Commonwealth to prove that appellant knew that

she was the beneficiary of that policy.

Appellant's third contention is that the trial

court erred by refusing to allow testimony of

appellant's one prior consistent statement. The

statement in question was made to Sidney Baker,

Esquire, appellant's prior counsel who was handling

appellant's divorce prior to her husband's demise.

Appellant avers that Mr. Baker would have testified

that she told him that she had given Anthony

Ferraro a check for $500.00 in payment for work

on her driveway which he was to have done. This

l4a

would corroberate her defense that the $500.00

payment to Mr. Ferraro was for a driveway and

not for a murder. The statement allegedly was

made sometime prior to appellant's arrest but after

the arrest of Anthony Ferraro. The Commonwealth

contends that the statement was a_ recent

fabrication intended to _ bolster appellant's

credibility. The trial court ruled that the statement

was a self-serving declaration and néf a prior

consonant statement. The statement was therefore

deemed inadmissible.

Prior consonant statements are admissible if

used in rebuttal to attacks upon the credibility of

a witness and if made prior to a time at which

the witness could have forseen the need in the

future to rely upon a fabrication made at that time.

Keefer v. Byers, 398 Pa. 447, 159 A.2d 477 (1960).

The first part of the two part test is that

the witness' testimony is challenged as a

Re eee eee ee ae et Le em

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fabrication. Clearly the prosecutor's cross-

examination of Mrs. Heron, running more than 150

pages of testimony, cast sufficient doubt upon her

direct testimony to warrant rehabilitation. Thus,

the first part of the test was satisfied.

The second part of our analysis has been

consistently treated by the courts of Pennsylvania.

"[C]onsonant declarations may be given... to show

that the same statement was made before its

ultimate effect on the question trying could have

been forseen".... Keefer, supra (emphasis added).

"Evidence of consonant statements, if admissible,

are admissible only in rebuttal and then only for

the purpose of showing that that which the witness

now testifies to has not been recently fabricated

and not for the purpose of proving the truth of the

“te

present testimony." Commonwealth v. Wilson, 394

Pa. 588, 148 A.2d 234 (1959). Our question in

regard to the second part of the test is: at what

l6a

point in time does the probability that a prior

statement was made in anticipation of judicial

inquiry preclude its admission? Appellant stresses

that the statement was made before her own arrest;

the Commonwealth emphasizes that it was made

after Ferraro's arrest, at a time when, to quote

the trial court, appellant "could reasonable (sic)

assume she was or would be a suspect." Dean

McCormick provides the _ following additional

guidance:

{lf in the particular situation, the

attack by inconsistent statement is

accompanied by, or interpretable as,

a charge of a plan or contrivance to

give false testimony, then proof of a

prior consistent statement before the

plan or contrivance was formed, tends

strongly to disprove that the

testimony was the result of a

contrivance.

MeCormick, On Evidence 106 (1972 2d_ ed.)

(emphesis in original).

We cannot tell when Mrs. Heron first decided

to claim that the $500.00 check was given to

l7a

Ferraro for work on the driveway. Perhaps she

knew when she wrote it that at some time in the

future she would need an alternative explanation

for writing such a check. Perhaps she thought of

it when her husband was murdered. As the trial

court found, however, she certainly knew of the

need for an explanation for that check when

Anthony Ferraro was arrested. Because the

statement was made after Ferraro's arrest, it came

after a time when the ultimate effect of the

statement on her forthcoming criminal trial could

have been forseen. The trial court did not err by

ruling that the statement allegedly made to

Attorney Baker was not a prior consonant

statement.

Appellant's fourth assignment of error is that

the court should not have allowed appellant's bank

records to have been admitted. The records in

question spanned the period from December 1979

18a

through April 1982. The records were introduced

by the Commonwealth to show that appellant was

able to finance the murder; specifically that she

could have raised the $2,500.00 paid to Ferraro

prior to August 5, 1981. Appellant contends that

the records were irrelevant because they showed

no more than ordinary deposits made coinciding

with her paychecks and withdrawals made consistent

with household expenditures. In addition appellant

claims that she was prejudiced by admission of the

records because they showed that she retained

current counsel far in advance of her arrest. For

these reasons, appellant maintains that the records'

probative value was outweighed by the likelihood

that they would unduly prejudice her and thus that

they should not have been admitted.

In reviewing questions of the admissibility of

evidence, our standard is well established.

19a

Appellant, in challenging the

exercise of discretion by the trial

court bears a heavy burden. The

standard which must be met is a

stringent one. "The abuse of

discretion is not merely an error in

judgment, but if in reaching a

conclusion the law is overridden or

misapplied, or the judgment exercised

is manifestly unreasonable, or the

result of partiality, prejudice, bias or

iil will, as shown by the evidence on

the record, discretion is abused."

Commonwealth v. Braithwaite, 253

Pa. Superior Ct. 447, 385 A.2d 423

(1978).

Commonwealth v. Cullen, 340 Pa. Super. 223, 489

A.2d 929, 935 (1985). And see U.S. ex rel. Varcus

v. Hess, 41 F. Supp. 197, rev'd 127 F.2d 233, rev'd

317 U.S. 536, 63 S.Ct. 379, 87 L.Ed. 443 (D.C.Pa.

1941) (the law permits great latitude in the

admission of circumstantial evidence tending to

establish a conspiracy, and the limits to which such

evidence may be admitted to establish existence of

conspiracy rest in sound discretion of trial court,

and its ruling will be sustained if evidence which

20a

is admitted tends even remotely to establish the

ultimate fact.).

Having reviewed the record on this point, we

cannot state that appellant has satisfied the heavy

burden outlined above. The trial court did not

abuse its discretion by allowing evidence which

helped to establish that a conspiracy to commit

murder for hire was a financial possibility for

appellant.

Appellant's fifth contention is that trial

counsel's failure to attempt to introduce a certain

check stub into evidence constituted constitution-

ally ineffective assistance of counsel. the (sic)

stub from appellant's check book was for that the

(sic) $500.00 check to Mr. Ferraro; it was marked

"driveway."

Ineffective assistance of counsel allegations

are tested with the three step procedure set forth

in Commonwealth v. Pierce, Pa. Super. ,

2la

ie al

499 A.2d 423 (1985). To prevail, appellant must

show that (1) the issue underlying the

ineffectiveness claim has arguable merit, (2) the

course chosen by consel (sic) did not have a

reasonable basis aimed at advancing appellant's

interests, and (3) former counsel's chosen course so

prejudiced appellant as to deny her a fair trial.

Assuming arguendo that there is arguable

merit for appellant's claim that the stub would

have been admitted had trial counsel sought its

admission, and thus clearing the first hurdle to

ineffectiveness, counsel's tactical decision not to

seek introduction of the check stub was reasonable.

The fact that the $500.00 check was the

Commonwealth's principal piece of corroborating

evidence in support of Anthony Ferraro's testimony.

More than half of the commonwealth's 150+ page

cross-examination of appellant was devoted to

questions about the check. To have introduced the

22a

check stub would only have served to focus still

greater attention on that $500.00 payment to

Ferraro. Any corroborative effect the stub might

have been expected to ahve might have been

completely nullified by the vigorous battle against

its admission counsel for the Commonwealth would

have mounted and by the cautionary instruction the

court would have given.

: - « «+ had the check stub _ been

submitted, it is highly unlikely it

would have been presented to the jury,

for a notation on the stub, which was

totally in Betty Heron's control until

the date of trial, could have been

placed there by her any time before

or after her arrest. It did not present

the quality of evidence necessary to

meet the test of its admission, and

had it been admitted, the prosecutor

would have been entitled’ to

instructions to consider it with some

skepticism.

Trial court opinion at 20.

Counsel's failure to act, where that decision

’

is based upon tactical considerations, does not

. evidence’ ineffectiveness. Commonwealth _ v.

23a

ES

Zimmerman, Pa. Super. . A.2d

(No. 3470 Philadelphia, 1982, filed February 20,

1986); Commonwealth v. Dancer, 460 Pa. 95, 331

A.2d 435 (1975). Here, counsel was not ineffective

for not seeking the introduction of a check stub

for tactical reasons.

Appellant's last two issues on appeal concern

the prosecution proneness of "death qualified"

juries. Specifically, appellant contends that a death

qualified jury is violative of her sixth amendment

right to an impartial jury and that the court abused

its discretion by allowing the prosecution je

challenge jurors who would be unable to sentence

appellant to death if she were found guilty without

first requiring the Commonwealth to show that this

was a capital case. The first issue has not been

properly presented to this court on the record. The

second issue is frivolous.

24a

To establish whether there is such a thing as

a guilt prone jury, appellant must present evidence

of record. Commonwealth v. Szuchon, 506 Pa. 228,

484 A.2d 1365 (1984); Commonwealth v. Story,

Pa. _, 440 A.2d 488, 496 (1981) (Justice Larsen,

Dissenting). In Szuchon the court refused to take

judicial notice of studies performed on the subject.

We are presented with an analogous situation here.

Appellant, by stipulation, has made a number of

studies part of the record. Appellant also had the

opportunity to present expert testimony at an

evidentiary hearing. Appellant failed to do so. If

we decide this important issue on the basis of the

stipulated to articles, we will in effect be forced

to take judicial notice of articles voicing an

opposing point of view. In addition, because

appellant did not present evidence at an adversarial

proceeding, we are unable to review the opinions

of the various authors subject to cross examination.

25a

The importance of testimonial as well as

documentary evidence has been recognized by C.J.

Nix in his dissent in Commonwealth v. Simon, (No.

82 W.D. Mise. Docket 1985). In Simon, the

LN a ni hla A Sag RAID AAR

Commonwealth petitioned for extraordinary relief

| to the Pa. S.Ct. following the triai court's ruling

that death qualification challenges would count

against the Commonwealth's peremptory challenges.

The defendant also appealed, challenging the

constitutionality of death qualified juries. The

Pennsylvania Supreme Court reversed the trial court

and remanded without treating .the death

qualification issue. Chief Justice Nix and Justice

Zappala would have reached the death qualification

issue on the record before them. As Chief Justice

Nix stated, "Unlike prior cases in which the death-

qualification issue has been raised, the instant

matter presents a full evidentiary record including

26a

iia

both empirical studies and expert testimony." Id.

at 2 (emphasis added, citations omitted).

As the record before this court lacks expert

testimony, it is not a full evidentiary record. We

cannot properly decide an issue of such importance

on the basis of an insufficient record.*

Appellant's final contention, that the

Commonwealth must make a prima facie case for

the capital offense before death qualification

challenges will be permitted, is fatuous. See

Commonwealth v. Tomony, 488 Pa. 324, 412 A.2d

531 (1980); Commonwealth ex rel. Fitzpatrick v.

Bullock, 471 Pa. 292, 370 A.2d 309 (1977).

Judgment of sentence affirmed.

* See Lockhart v. MecCree, 54 U.S.L. 4449

(1986).

27a

IN THE COURT OF COMMON PLEAS

OF ALLEGHENY COUNTY,

PENNSYLVANIA

CRIMINAL DIVISION

OPINION

COMMONWEALTH OF :

PENNSYLVANIA

ve : CC #8207086

CC #8206984

HERON, Betty

Honorable Patrick R. Tamilia

28a

OPINION

Tamilia, J.

On August 23, 1982, an arrest warrant and

criminal complaint were issued charging Betty

Heron with accomplice, Anthony Ferraro, in the

contract killing of David Heron, the defendant's

husband.

She was brought to trial on January 17, 1983,

and on January 22, 1983, the jury found defendant

guilty of murder of the first degree and conspiracy.

Anthony Ferraro was tried separately and was

convicted of murder in the first degree and

sentenced to life imprisonment.

Pursuant to the bifurcated procedures

mandated by the Sentencing Code, 42 Pa.C.S.A.

§9711, a separate sentencing hearing was

immediately conducted at which time the jury

determined that Mrs. Heron should be sentenced to

life imprisonment. Trial counsel filed motions

29a

\

alleging the insufficiency of the evidence, the

verdict being against the weight of the evidence

and certain trial errors. Prior to argument, new

counsel entered the case to pusue the appellate

procedures.

Following argument and consideration of the

briefs, the post-verdict motions were denied. A

life sentence was imposed and sentence on the

conspiracy verdict was suspended on December 29,

1983. Notice of appeal was filed January 6, 1984.

Pursuant to Pa.R.Crim.P. 1925(a), this Opinion

has been prepared providing the reasons for the

Court's rulings and/or other matters complained of.

In reviewing this case, the standard for

determining the sufficiency of the evidence has

been stated as follows:

30a

Commonwealth v. Taylor,

In reviewing the sufficiency of the

evidence, we must view the evidence

presented and all reasonable

inferences taken therefrom in the

light most favorable to the Common-

wealth, as verdict winner. The test

is whether the evidence, thus viewed,

is sufficient to prove guilt beyond a

reasonable doubt. Commonwealth v.

Madison, 501 Pa. 485, _—, 462 A.2d

228, 231 (1983); Commonwealth v.

Shaver, 501 Pa. 167, __, 460 A.2d

742, 743 (1983); Commonwealth v.

Sample, Pa. Supeer. .

468 A.2d 799, 801 (1983);

Commonwealth v. Curry, Pa.

Super. 9 , 465 A. 2d 660, 662

(1983). The credibility of witnesses

and the weight to be accorded the

province of the trier of fact; the fact

finder is free to believe all, some, or

none of the evidence. (Citations

omitted)

A.2d 1228 (1984). We believe the evidence is

sufficient in law to sustain the verdict, and the

weight appropriately given the evidence by the jury

established defendant's guilt beyond a reasonable

3la

Pa. Super. , 471

FACTS

On August 5, 1981, between 3:00 and 3:30

p.m. Mr. David Heron was shot te death while

sitting in the driver's seat of his truck in the

parking lot of the Wind Chimes Restaurant on

Neville Island on the Ohio River downstream from

Pittsburgh, Pennsylvania

A waitress, Mundee Henderson, heard shots

and upon going to the window, witnessed a man

jabbing a revolver into the driver's side of the

pickup truck in staccato rhythm with the firing of

the gun (T.T. p. 15). Subsequently, from a photo

array and a lineup Henderson identified the person

she saw shoot David Heron, ‘that person being

Anthony Ferraro (T.T. p. 27). The other witness

to the shooting was Marsha Hendricks, who testified

in a similar fashion.

Anthony Ferraro testified that at the time of

the shooting, he was the manager of the cafeteria

32a

in the Federal Building in Pittsburgh with a salary

of $24,500 (T.T. p. 48-49). He admitted killing

David Heron by shooting him twelve times, using

two guns (T.T. p. 50). In March of 1982 at his

own trial, he denied any involvement in the killing

of David Heron in order to beat the charge (T.T.

p. 52). He was convicted of murder, and

subsequently, during testimony before a grand jury,

he decided to tell the truth admitting his actions

as the shooter and implicating Betty Heron as his

accomplice (T.T. p. 54). He identified Betty Heron

in the courtroom following testimony on the above.

Anthony was with Betty Heron about twenty

times prior to the shooting. He first met her at

Christmas time in 1979 as she was a salesperson

for a meat company and he had invited her to the

cafeteria to discuss business. They had become

friends on the phone. In 1981, he saw her at her

employer's Deaktor Meats, Christmas part. They

33a

saw each other more frequently thereafter until

the shooting in August of 1981, but not on a

romantic basis. They met at one another's homes

on a couple of occasions and had drinks together.

It was during these contacts he first learned she

was seeking a divorce. She told him her husband

beat her and raped her and eventually she had

separated from him. During a phone conversation

in March of 1981, Betty told Tony that she wanted

her husband dead (T.T. p. 63). A few weeks later,

she again expressed the wish that he were dead

and asked if he knew anyone who would shoot her

husband for her (T.T. p. 65). Thereafter, it was

mentioned by her just about every time they talked

(T.T. p. 66). In the summer of 1981, a matter of

weeks before the murder, she asked Tony to kill

her husband for her. He told her she was crazy,

but she peresisted in subsequent contacts offering

him $10,000.00 to do the killing (T.T. p. 69) (sic)

34a

Because of her persistance and his sympathy with

her about the mistreatment she alleged to be

receiving, he agreed to kill David Heron, but told

her $10,000 was too much and they agreed upon

$5,000 as the price (T.T. p. 72).

Betty obtained her husband's work schedule

at Matlack Trucking for Tony the night before the

killing by calling the company (T.T. p. 73). She

communicated this to Ferraro the next day, August

5, 1981, when he decided to kill David Heron. On

the previous Monday, August 3, she gave Tony

$2,500 in cash at his off ice, which he put in the

safe. The agreement was to pay one half before

the killing and one half afterwards (T.T. pp. 74-75).

As to the weapons, Ferraro had two guns,

both .32 caliber revolvers, one was his, the other

belonged to a friend who gave it to him to be

fixed. Both guns were in working order at the

time of the murder.

35a

On the day of the killing, Tony left work at

11:00 a.m. to locate the victim, who, according to

Betty Heron, would be at the Matlack Trucking

Company at about noon. At Matlack, he waited

for David Heron to come back and intended to

identify him from a picture given to him by Betty

Heron. David arrived about 12:30 p.m., went into

the building and later came out getting into his

personal truck and driving off (T.T. pp. 78-80).

Tony followed the victim to the Wind Chimes

Restaurant on Neville Island. David Heron went

into the restaurant, Tony parked outside and waited.

About five minutes later David came _ out,

whereupon Tony got out of his car and went over

to David who was inside his truck and they began

talking. At the time, Tony had the two guns with

him. He remarked about Betty being upset

concerning the use of her name to purchase a mobile

home. David got mad and swung a clip board at

36a

Tony; Tony pulled out a gun and shot David six

times, and after pulling the other gun, shot him

six more times (T.T. pp. 82-83). Tony then went

to his car and drove away returning to his place

of employment about 4:10 p.m. He called Betty

and told her to watch the six o'clock news. Betty

called him after the eleven o'clock news confirming

that she had seen the report concerning the murder.

Friday, August 7, following the murder, Betty went

to Tony's office and gave him $900 in cash and a

check for $500 toward the balance of the agreed

upon $5,000 contract price. The $500 was deposited

in his account and he kept the $900 cash. There

was $1,100 remaining on the contract price, which

by agreement was to be made up by the sale of

the truck to Tony by Betty for $3,500, resulting in

a cancellation of the $1,100 debt (the truck being

worth $4,600) (T.T. p. 89). The truck was paid for

by a check for $3,500 in September of 1981 (T.T.

37a

p. 89). The $500 check made out to Betty to Tony

dated August 10, 1981 was also introduced into

evidence (T.T. p. 91).

As to the truck, Betty asked Tony to recover

it from the Neville Island police. He did so by

giving a false name, Robert Reno, which was

suggested to him by Betty. He, took the truck to

his house and later sold it for $4,587 to a Steve

Martin, who was the assistant manager at the

Federal Building. He sold the truck and received

a check just days before his arrest on October 14,

1981. Tony denied any deal for a plea bargain but

acknowledged that he was testifying under an order

of immunity.

Testimony was received from Chief Edward

Selzer on Neville Island (T.T. p. 214) who stated

Mrs. Heron came to the Neville Island station to

pick up the truck and boat on August 26 with a

male who identified himself-as Robert Reno. He

38a

thought Robert Reno fit the description of the

killer. The man who identified himself as Reno,

he identified in the courtroom as Anthony Ferraro.

The chief stated he was willing to pay $4,500 for

the truck which he stated was in good condition

(T.T. p. 220). An expert named Michael Ord

testified later that the truck had a value of $4,800

to $5,000 wholesale and a $6,000 retail price.

Other evidence presented by the

Commonwealth was relevant to the overall

circumstances of this case. Betty's employer,

Charles Deaktor, testified that Betty Heron was

paid $13,000 a year. Bank records of Anthony

Ferraro between December 8, 1979 and April 9,

1982 were admitted. Heron's records were also

admitted and in both situations the intent of the

Commonwealth was to establish relevant deposits

and withdrawals having a relationship to this case.

Heron's bank records showed a deposit of $2,050

39a

made in July, one month prior to the killing of her

husband; there is also the evidence of the single

check of $500 made to Anthony Ferraro.

The testimony of Howard Taylor, a Matlack

employer, was to the effect that on August 4, 1981

he received a call from a female regarding the

work hours of David Heron for the following day,

that is August 5. This call was received on August

4 between 6:00 and 11:30 p.m.

Ellen Klein, an evidence clerk for the district

attorney's office in the Allegheny County

Investigating Grand Jury, had compiled a record of

deposits and withdrawals on both the accounts of

Betty Heron and Anthony Ferraro. It was shown

that a check for $3,500 made payable to Betty

Heron from Anthony Ferraro, which confirms his

purchase of the truck and, likewise, the check for

$500 made froin Betty Heron to Anthony Ferraro

was listed in this compilation.

40a

Charles Salvatore, an official of the

Teamsters Union, testified that David Heron was

covered by $20,000 life insurance with a double

indemnity feature. Betty Heron was the beneficiary

of this policy and $40,000 was paid to her upon

David's death. She also received $5,000 from the

welfare fund. The total receipt through the Union

and insurance including interest was $46,108.06. He

also testified that when a contract is negotiated,

each Teamster gets a copy of the booklet

concerning its terms which would include the

insurance policy.

In her defense, Betty Heron testified that

when her husband, David, drank, he physically

abused her. In March of 1981, she went to Sydney

(sic) Baker, an attorney, to start divorce

proceedings. Everything seemed to be in order,

but then on July 27, 1981, shortly thereafter, she

received a letter from Baker indicating that David

4la

—————

was going to cause trouble including making a claim

against the house bought with money she had

received as a settlement from her first husband.

She claims she was not upset by this. As to her

relationship with Ferraro, Betty testified that she

had contact with him a total of seven times prior

to the killing. In relation to the check given to

Ferraro in August in the amount of $500, she stated

this check was for the purpose of paying for

driveway work to be arranged by Ferraro with the

Crisella Construction Company T.T. p. 475).

Eventually she paid Crisella $300 in November of

1981 at the suggestion of Ferraro. She

acknowledged accepting $3,500 from Ferraro for

the truck but expected him to pay the additional

$1,100 as the agreed value of the truck was $4,600

(T.T. p. 490). Betty testified she might have called

about the time of the August 4th call to Mr.

Salvatore to talk to David concerning the medical

ecard which she needed (T.T. p. 505).

On cross-examination, she appeared very

uncertain, inconsistent and waivering as to the

check for $500 paid to Ferraro. It was subsequently

established on the record by Crisella Construction

Company that the driveway was actually paved on

September 18, 1981. There was no contact between

Crisella and Ferraro concerning payment. All

contacts relating to payment and extent of the

work to be done were communicated between

Crisella and Betty Heron (T.T. p. 862 by Americo

Crisella). Crisella testified that he talked about

the work to be done on the driveway with Betty

within a week or two prior to the actual work being

commenced. The following day he called her to

tell her the job was completed. At that time she

said that she would mail a check to him. Mr.

Crisella said he did not get a check and after a

43a

couple of weeks passed, he called again and it was

mentioned to him that the job was unsatisfactory.

And then his son, Ereric, took over to collection.

Mr. Crisella said he never discussed payment with

Ferraro (T.T. p. 874). Mr. Emeric Crisella stated

his work record showed the job was done on

September 18 (T.T. p. 878) and from the material

slips, material had to be purchased that day because

it had to be used within two hours from the time

received from the asphalt plant (T.T. p. 879). As

to payment, Heron finally paid $300 in November,

1981.

Betty Heron was arrested for the murder of

her husband on August 24, 1982.

LEGAL ISSUES

As to pre-trial motions regarding the death

penalty, these are dealt with in the order filed

January 24, 1983. It is part of the record and the

legal authority is herein incorporated by reference.

44a

Motion for New Trial and In Arrest of Judgment

The first five allegations are boilerplate and

need not be - addressed by _ this Court.

Commonwealth v. Holmes, Pa. Super. A

461 A.2d 1268 (1983).

The sixth allegation, "The evidence was

insufficient to sustain the verdict of the jury," is

totally without merit, as the detailing of the facts

above clearly establishes the evidence, if believed

by the jury, is more than adequate to establish all

of the elements of Criminal Homicide and

Conspiracy by Betty Heron in a contract with

Anthony Ferraro to kili her husband, David. In

furtherance of the conspiracy and pursuant to the

contract, David was, in fact, murdered by Anthony

Ferraro. This too lacks specificity and is subject

‘to the same limitations imposed by Holmes, supra.

7.) The Court did not err in permitting

evidence of the policy on David Heron's life to

45a

which Betty Heron was a beneficiary. Under

circumstances such as these, with the wife who is

employed and in the business world, with at least

average knowledge of employment conditions and

benefits (she admits calling her husband's employer

about medical benefits), it is fair to assume that

out of the confidential relationship, knowledge of

insurance policies may be presumed. "Knowledge

(of an insurance policy) may be inferred from

relationships (father/son).". People v. Doedecke, 56

Cal. Rptr. 625, 423 P.2d 777 (1967). The issue of

whether or not the defendant knew of the existence

of the policy was an issue to be determined by

jury. Whether or not she knew there was a double

indemnity aspect to the pclicy is immaterial to

admission of evidence as to the existence of the

policy. She did, in fact, receive $46,000 in benefits

related to her husband's employment as a result of

his death. Obviously the existence of an insurance

46a

policy could be a motive to the killing of Betty,

since she could fairly construe herself to be his

beneficiary.

8.) Defense counsel maintains a statement

to Sidney Baker concerning her payment of $500

should have been permitted to go to the jury as a

prior consistent statement. This statement was

made to Baker after David's death, and after

Anthony Ferraro's arrest, and at a point in time

when Betty Heron could reasonably assume she was

or would be a suspect (T.T. pp. 890-892). As such,

it would have been a self-serving declaration and

not qualify for admission as a prior consistent

statement. Keefer v. Byers, 398 Pa. 447, 159 A.2d

477 (1960); Commonwealth v. Wilson, 394 Pa. 588,

148 A.2d 234 (1959) cert. denied, 361 U.S. 844, 80

S.Ct. 97, 4 L.Ed. 2d 82 (1959); McCormick on

Evidence, 3rd Edition, Sec. 49 p. 118, 75 ALR2d

909, 933. The intent of the exception to the hearsay

47a

rule provided by the consonant statement provision

is to rebut evidence harmful to the witness' veracity

by consistent statements made prior to any need

to falsify. Such is not the case here.

9.) The bank deposits and withdrawals, in

total, of both Betty Heron and Anthony Ferraro

were admissible for the purpose of showing the

pattern of financialo transactions, both customarily

engaged in and to illustrate the evidence of other

transactions associated with the conspiracy and

murder. To admit only fragments of the bank

records would have been detrimental to either or

both the Commonwealth's and Defense cases. The

point by point cross-examination by the defense

more than adequately established the routine

transactions and accounted for funds that initially

were open to question by the Commonwealth (such

as the source of $1,400 - IRS refund). It was also

relevant for the Commonwealth to show there was

48a

sufficient money to pay for the killing and to show

there was unexplained income beyond that received

from Betty's only visible means of support, her job

with Deaktor.

10.) All of the objections raised in this

paragraph are subject to the same findings as in

No. 9 above. Income received before and after

the killing was relevant, as were withdrawals

including monies paid to her attorney as indicating

her ability to engage in a contract to kill her

husband for the price of $5,000 (or $10,000).

Whether or not counsel fees would have been an

issue, if this was disclosed during trial, is

immaterial to the underlying basis for admission of

these records, that is, to establishe income

sufficient to pay the contract, and to establish

deposits and withdrawals related to the contract.

11.) For the same reason as above, the

admission into evidence of the deposits and

49a

expenditures had probative value,a nd while this

may have been prejudicial, it was not error.

12.) The conspiracy charge and homicide

charge are not identical crimes and the appellate

courts have long held the elements of conspiracy

are separate and distinct from the crime which

forms the basis for the conspiracy. Commonwealth

v. Miller, 469 Pa. 24, 364 A.2d 886 (1976). This

allegation is without merit.

13.) The evidence as to the bank account at

Parkvale came into the trial through the defense

admissions at the coroner's inquest. The Prosecutor

overlooked this when making his closing statement,

alleging it had available only those accounts shown

at trial. This was error but not prejudicial. The

defense on one hand claims the Commonwealth

should not be permitted to show that defendant's

bank transactions could be probative of sufficient

funds to underwrite a contract killing, and then

50a

admits another account which could bolster further,

the Commonwealth contention. The Commonwealth

commented in closing argument that this account

was unknown to it because it did not have an

account number. Over defense objection he

modified his statement—as modified there were no

further objections by the defense. The comment

by the prosecutor concerning this account was

within the bounds of reasonable argument. In light

of the overwhelming evidence in this case, the

error, if any, was harmless beyond a reasonable

doubt and this Court feels it had no bearing on the

jury's verdict.

14.) The arguments relating to the district

attorney making out a death case in jury selection

are without merit and are dealt with in the Order

of this Court in regard to pre-trial motions, dated

January 24, 1983, as incorporated here by reference

as included in the original record on appeal.

5la

Defendant's major argument in its Supplemental

Brief in Support of Motion for New Trial and in

Arrest of Judgment, at VII, was that defendant was

denied her right to a fair and impartial jury as a

result of the voir dire in the instant case. There

is no allegation that the Commonwealth failed to

proceed in complete compliance with Witherspoon

v. Illinois, 393 U.S. 510, 20 L.Ed. 2d 776, 88 S.Ct.

1770 (1968), or the Pennsylvania Rules for qualifying

a jury for a capital case and the standard of review

established by Commonwealth v. Zettlemoyer,

Pa. , 454 A.2d 937 (1982). The argument is

based on the review of evidence and studies relating

to the issue of guilt proneness resulting from the

death qualification process presented by Grigsby v.

Mabry, 569 F.Supp. 1773 (1983). It is not necessary

to analyze the Grigsby arguments as to "fair cross

section of the community" or "guilt proneness" or

to consider the recommendation of a bifurcated

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trial to decide the guilt and sentencing aspects of

the case. Suffice it to say that Grigsby is a Federal

decision from a district court in Arkansas and

subject to the review process of the 8th Circuit

Court of Appeals and the United States Supreme

Court. Several cases have reached the United

States Supreme Court on Stays of Execution where

the stay has been denied with the vigarious dissents

referring favorably to Grigsby. Woodward sv.

Hutchins, 104 S.Ct. 752, 78 L.Ed. 2d 541, 52

U.S.L.W. 3532 (1984) and Rector v. Arkansas, 104

S.Ct. 2370, 8 L.Ed. 2d 842, 52 U.S.L.W. 3826 (1984).

Also, in view of the fact the jury returned a

sentence of life imprisonment, rather than the death

penalty, the exclusion of jurors opposed to capital

punishment was not reversible error under those

circumstances. Bumper v. North Carolina, 391 U.S.

543, 20 L.Ed. 2d 797, 88 S.Ct. 1788 (1968).

Recently, the Pennsylvania Supreme Court upheld

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the death penalty in Commonwealth v. Stoyko, J-

80-83, Western District Appeal Docket, (filed April

18, 1984) and it is certain that these or equivalent

arguments were known to that Court, because of

the practice, at least in Allegheny County, to make

them in every first degree murder case. Under

this state of the law, the trial court may not make

or change the law without inviting immediate

reversal. While defense counsel has preserved the

issue for appeal, our mandate is to deny the motion.

14. a.) The Court's recollection of the

time it took to return a verdict is no

less than 15 to 20 minutes. Defense

counsel alleges it was no more than five

minutes. The Court takes judicial notice

that the jury room was a half city block

away on the fifth floor of the Allegheny

County Court House. The time it would

take to walk to the jury room, to permit

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the jurors to get settled, discuss their

decision, record it, inform the tipstaff

they reached the decision, thereafter,

for the tipstaff to return to the

chambers to inform the Court, for the

Court to determine if the attorneys and

defendant were present, a clerk and

court reporter available and for the

tipstaff to return the jury to the

courtroom,—could not have been

accomplished in less than five minutes.

Irrespective of the time it took to decide

between a life sentence and the death

penalty, no inference can properly follow

that because the jury was death qualified

it came in with a guilty verdict.

The Commonwealth relied on the trial record

(T.T. 940) and the jury was directed to consider

that record as to aggravating circumstances (a

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single one — the contract for murder) Mr.

Gondleman (sic) presented the testimony in the

record of Heron's children, her father, (and

introduced her mother), who testified to her good

character and exemplary life. This was not a

surprise verdict and clearly is accounted for by the

exercise of mercy powers inherent in the jury

system.

"(T]he length of the deliberation of a jury is

wisely left to the sound discretion of the trial

Judge, and we reverse only if we find... abuse

. of discretion, or that the verdict was the product

of coercion or of an overworked and fatigued jury."

(citations omitted) Commonwealth v. Gartner, 475

Pa. 512, 381 A.2d 114, 124 (1977). Accord,

Commonwealth v. Penn, 497 Pa. 232, 439 A.2d 1154

(1982). While this rule generally applies when the

trial judge holds the jury for a long period, it

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applies equally to shorter deliberations involving

mistrials, or as here, a rapid return of a verdict.

SUPPLEMENTAL MOTIONS

16.) The testimony of Howard Taylor was

properly admissible to corroborate Anthony

Ferraro's testimony that Betty Heron had called on

August 4, 1981, to determine David Heron's working

hours the following day. The testimony of Howard

Taylor was that a woman had called regarding David

Heron's working hours. While she could not be

identified as Betty Heron, the call was a relevant

piece of circumstantial evidence, which tied in

directly with the testimony of Anthony Ferraro,

tending to corroborate his. It was not admitted

for the purpose of identifying Betty Heron. She

further corroborated calling the company about that

time in order to talk to David about his medical

ecard. It was up to the jury as to what weight or

value they would place on that testimony.

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17.) The claim of ineffectiveness of counsel,

the last in these motions, and the last defense of

desperate counsel is totally without merit. Trial

counsel objected to the admission of the bank

records throughout. The records were admitted and

regardless of the check made out to Mr. Gondelman

as part of those records, the Court believes they

were relevant and admissible for the purposes stated

above. The fact that his check was included is

immaterial and it is assumed he knew at the time

of presentment that he had been paid $5,000 by

Betty Heron in November 1981, almost a year

before her arrest. The following testimony elicited

by Mr. Gondleman (sic) from witness, Sidney Baker,

established he was representing Heron in the

criminal matter independent of evidence from the

check and before the jury saw his check. At T.T.

p. 816:

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GONDLEMAN (sic): Q. Now, Mr.

Baker, in connection with this matter

did there come a time when it

appeared that there were criminal

matters with which Betty Heron

required advice?

A. Yes, when

Anthony Ferraro was arrested.

Q. Mr. Baker,

did Mrs. Heron advise you that she

had retained the services of Harold

Gondleman (sic) to represent her?

A. At some

point, I think around the first of

December (1981) somewhere around

there.

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Q. Did you

turn over her entire file, basically the

estate file to me to represent her?

A. I turned

over—I think I gave you copies of

everything I had in my file.

Likewise, at T.T. pp. 872-83, cross-examination of

Americo Crisella:

Q. I'm sorry Mr. Crisella, when my

investigator went to see you, that was

December 16, of 1981, not 1982 that

I said before, it was over a year ago,

not last December, not last month.

My investigator came out to see you

in December of 1981, do you

remember that?

These two series of questions by Mr.

Gondleman (sic) (and others) established

unequivocally that Vrs. Heron had employed him

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as a criminal lawyer to represent her in matters

relating to Mr. Ferraro's arrest and her husband's

murder, long before Ferraro became a state witness

and before Heron was a suspect.

It can be fairly assumed that such an astute

trial lawyer as Mr. Gondleman (sic) attempted to

keep the entire record out because he knew a record

of the check to him was included, and failing that,

hoping to luck out by not calling it to the Court's,

prosecutor's, or jury's attention, thereby avoiding

the discovery because of the possible adverse

effect. This is trial strategy at its best, and to

be expected of this counsel. We note the affidavit

by Mr. Gondelman as to his own ineffectiveness

and we condemn it. Since we have commented on

this issue above, any further comment is

unnecessary.

As to item "B", failure to introduce a check

stub to the $500 check written by Vrs. Heron to

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Anthony Ferraro, any comment in view of our

discussion above is redundant, particularly since had

the check stub been submitted, it is highly unlikely

it would have been presented to the jury, for a

notation on the stub, which was totally in Betty

Heron's control until the date of trial, could have

been placed there by her any time before or after

her arrest. It did not present the quality of

evidence necessary to meet the test of its

admission, and had it been admitted, the prosecutor

would have been entitled to instructions to consider

it with some skepticism.

Defendant's Motion for Evidentiary Hearing

was denied as it was directed toward proof of

ineffectiveness of counsel on the above issues,

which are clearly refuted by the record, and on

the issue of guilt prone jury selection, which has

been discussed above. There is no basis to set

aside the verdict of the jury or to grant a new

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trial and the judgment of sentence should be

affirmed.

/s/ Tamilia, J.

September 19, 1984

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