Appendix — Showers v. Pennsylvania

Supreme Court brief1997

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r Supreme Court, U.S.

oo } FILED

961599 FEB 24 1997

OFFICE OF THE CLERK

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1996

JUDY ANN SHOWERS,

Petitioner

vs.

COMMONWEALTH OF PENNSYLVANIA,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPERIOR COURT OF PENNSYLVANIA

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

William C. Costopoulos, Esquire

Counsel of Record for Petitioner

COSTOPOULOS, FOSTER & FIELDS

831 Market Street

Lemoyne, Pennsylvania 17043

Telephone: (717) 761-2121

TABLE OF CONTENTS

Order of the Supreme Court of Pennsylvania,

entered on November 27, 1996, denying the

petition for allowance of appeal ..... Al

Order and Opinion of the Superior Court of

Pennsylvania, filed on June 20, 1996,

and reported at ____ Pa.Super._,

681 A.2d 746 (1996), affirming the

judgment of sentence .........cccccces A2

Opinion of the Honorable Barry F. Feudale,

Judge of Northumberland County,

Pennsylvania, dated September 12, 1995

denying the post-sentence motions ... A46

IN THE SUPREME COURT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA

Vv.

JUDY ANN SHOWERS,

Petitioner

No. 468 M.D. Allocatur Docket 1996

Order

AND NOW this 27th day of November,

1996, the petition for allowance of appeal

is hereby DENIED.

ORDER ENTERED: November 27, 1996.

EAE RA RB RS a AR aR aE i i i i ee

IN THE SUPERIOR COURT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA

Vv.

JUDY ANN SHOWERS,

Appellant

No. 1378 Philadelphia, 1995

BEFORE: McEWEN, P.J., SAYLOR AND MONTEMURO,

JJ.

OPINION BY MONTEMURO, J.:

This appeal arises from Appellant Judy

Ann Showers’ conviction for first degree

murder following a jury trial before the

Honorable Barry F. Feudale of the Court of

Common Pleas of Northumberland County. The

mandatory sentence of life imprisonment was

imposed. Now represented by new counsel,

Appellant brings this appeal. We affirm.

On September 2, 1992, state police

Trooper Robert McBride responded to the

scene of an apparent suicide at the

residence of Appellant and her husband,

Delbert Showers, whose body was found lying

on their couch. Norman Showers, the

deceased's brother, had already arrived on

the scene and discovered what appeared to be

a suicide note under the body. The note

explained the deceased's reasons’ for

committing suicide and what drugs he took to

accomplish it. The deceased died of an oral

overdose of a mixture of Serax, an anti-

depressant drug, and liquid morphine. The

Serax was obtained by prescription, while

the morphine had been taken from Helen

Wolfe, a friend of the Showers and the

former lover of the deceased.

On the day of her husband’s death,

Appellant, a licensed practical nurse, had

been alone in the house with him. During

Trooper McBride’s investigation, the police

determined that the note was not written by

the deceased. In February of 1993, Trooper

McBride again interviewed Appellant who

re IIIT Ye

admitted that she wrote the note because she

feared she would be accused of killing her

husband. Based upon inconsistencies in her

story and other information which she

provided, Appellant was charged with first

degree murder.

At trial, the Commonwealth introduced

evidence of Appellant’s motive for the

killing. At the time of his death, the

deceased was romantically involved with

Sylvia Knecht, the younger sister of Helen

Wolfe. Appellant also knew of this affair.

Years earlier, Appellant had also discovered

his affair with Helen Wolfe. In addition,

there was evidence that Appellant herself

had in the past been involved in

extramarital relations. There were also

indications of a financial motive, evidence

to the effect that although the deceased was

financially well-off, he was "tight" with

money.

Appellant attempted to establish that

the death was a suicide by evidence that the

deceased had sought treatment for depression

in the past, and that he had discussed

suicide.

After a one-week trial, the jury found

Appellant guilty of murder in the first

degree. On appeal, Appellant raises eight

issues, which have been edited for clarity:

. Was the evidence insufficient to

sustain the verdict because the Commonwealth

failed to prove beyond a reasonable doubt

that Delbert Showers was murdered by

Appellant as opposed to having committed

suicide or, alternatively, was the verdict

against the weight of the evidence?

2. Did the trial court err in permitting

the Commonwealth to introduce evidence of

Appellant’s bad reputation for truthfulness?

3. Was trial counsel ineffective for not

extensively cross-examining Dr. John Hume,

the Commonwealth's expert witness, who

testified that the deceased was not a

suicide risk? |

4. Did the trial court err in admitting

allegedly irrelevant, remote, and highly

prejudicial evidence that Appellant had

instructed Diane Showers, Appellant and the

deceased’s daughter, to administer

medication to the deceased without his

knowledge several years before his death?

5. Did the trial court err in denying a

motion for a mistrial when Trooper McBride

testified that he felt there was a

reasonable doubt that the deceased committed

suicide?

6. Did the trial court err in: allowing

the Commonwealth to grant limited use

immunity to Diane Showers solely to impeach

her testimony by a later witness; b)

allowing the Commonwealth to treat her as a

hostile witness; c) limiting the cross-

examination of her to matters granted in the

use immunity; and d) not compelling the

Commonwealth to give her full use immunity

for all her testimony or preclude her from

testifying pursuant to her invocation of her

right against self incrimination?

7. Did the trial court err in allowing

Janette Andrews to testify that she was

called only to impeach Diane Shower and her

testimony, which was hearsay, went beyond

the scope of the offer of proof and the

grant of immunity?

8. Did the trial court err in allowing

the Commonwealth to cross-examine the

defense forensic psychiatrist concerning a

report that the deceased discovered that

Appellant was having an affair in the mid-

1970’ s?

1. Sufficiency and Weight of the Evidence

Appellant’s first point of error is

that the evidence was insufficient to

sustain a first degree murder conviction.

She points to evidence that the deceased had

a long history of chronic depression; had

been hospitalized and under medical

treatment for depression; had told several

people shortly before his death that he

intended to commit suicide; and was a high

risk to commit suicide according to a

forensic psychiatrist.

In examining a sufficiency of evidence

claim, we must determine whether the

evidence and all reasonable inferences from

it, viewed in a light most favorable to the

Commonwealth as verdict winner, were

sufficient to establish all the elements of

the crimes charged beyond a reasonable

doubt. Commonwealth v. Zimmick, 539 Pa.

548, 554, 653 A.2d 1217, 1220 (1995). To

prove murder in the first degree, the

Commonwealth must show that a human being

was unlawfully killed, that the accused

A8&

committed the killing, and that she did so

in an intentional, deliberate, and

premeditated manner. Commonwealth v.

Paolello, __ Pa. , , 665 A.2d 439, 448

(1995). The key element distinguishing

first degree murder from other degrees of

criminal homicide is the presence of a

willful, premeditated, and deliberate intent

te Risks: Fe

Within this first issue, Appellant also

challenges the weight of the evidence. The

weight of the evidence is exclusively for

the finder of fact who is free to believe

se @ some, or none of the evidence.

Commonwealth v. Simmons, 541 Pa. 211, 229,

662 A.2d 621, 630 (1995), cert. denied, 116

S.Ct. 945 (1996). In addition, questions of

credibility of witnesses are within the

factfinder’s exclusive province. Id. We

will only reverse a verdict if it is so

—

contrary to the evidence to shock our sense

of justice. Id.

In addressing this issue, the trial

court Opinion thoroughly examines’ the

evidence supporting the first degree murder

conviction. Therefore, to that extent, we

adopt its Opinion as our _ own. After

reviewing the parties’ respective briefs,

the record and notes of testimony, and the

trial court’s Opinion, we hold that there

was sufficient evidence to convict Appellant

of first degree murder. Furthermore, we

hold that the verdict was not against the

weight of the evidence as it does not shock

our sense of justice.

In response to Appellant’s contention

that trial counsel was ineffective for not

raising a weight challenge before the trial

court, we note that the contention is moot

because the trial court did address the

weight of the evidence.

2. Evidence of Appellant’s Reputation for

Al10

Truthfulness

Appellant’s second issue is that the

trial court erred in allowing the

Commonwealth to present three witnesses who

testified to her reputation for dishonesty.

Appellant alleges three errors concerning

the character evidence: first, although she

testified at trial, she did not place her

reputation for honesty at issue; second, the

character evidence was based on remote

knowledge; and third, one witness, to

Appellant’s prejudice, testified beyond the

scope of character evidence.

The admission of evidence is a matter

reserved for the trial court whose decision,

absent an abuse of discretion, we will not

disturb. Commonwealth v. Williams, 541 Pa.

85, 94, 660 A.2d 1316, 1321 (1995), cert.

denied, 116 S.Ct. 717 (1996). Appellant

contends that a defendant in a criminal case

does not place her reputation for honesty at

All

issue merely by taking the stand. She

alleges that the trial court nad a "serious

misunderstanding" of character reputation

evidence ina criminal trial. However, it

is Appellant who confuses the character

evidence issue. The error in Appellant’s

argument manifests itself in her

contradictory contentions that: l)a

defendant does not place her credibility at

issue by testifying at trial; 2)crimen falsi

convictions are admissible to impeach the

credibility of a defendant who testifies;

and 3) evidence of a testifying defendant’s

reputation for untruthfulness cannot be used

to impeach credibility. Although no case

directly holds that a defendant who takes

the stand may have her credibility impeached

by reputation evidence, a review of case law

clearly indicates that such impeachment is

permissible.

In Commonwealth v. Scoleri, 432 Pa.

Al2

571, 248 A.2d 295 (1968), vacated, Scoleri

v. Pennsylvania, 408 U.S. 934 (1972), our

Supreme Court stated, "Where a defendant in

a criminal case takes the witness stand in

his own defense he occupies the same status

as any other witness and his credibility is

in issue." 432 Pa. at 579, 248 A.2d at 299;

see also Leonard Packel & Ann Bowen Poulin,

Pennsylvania Evidence § 608.1 (1987); 81

Am.Jur.2d Witnesses § 967 (1992). The

reason is that "{iJf a defendant offers

himself as a person worthy of belief, the

jury has a right to know what kind of man he

is -- to aid in assessing his credibility."

Commonwealth v. Butler, 405 Pa. 36, 47, 173

A.2d 468, 474 (1961), cert. denied, 368 U.S.

945 (1961).

During her testimony, Appellant recited

her own version of the events surrounding

her husband’s death. When confronted with

the testimony of other witnesses, she stated

Al3

that the other witnesses’ recollection of

the facts were incorrect. It is clear that

by testifying to a different version of the

events surrounding the death, and by

Claiming that the other witnesses’ testimony

was incorrect, Appellant placed her

credibility at issue.

Even though she claims that a defendant

does not put her credibility at issue by

testifying at trial, Appellant nevertheless

concedes that crimen falsi convictions are

admissible to impeach the credibility of a

defendant who takes the stand in her own

defense. However, she argues, without

Supporting authority, that the law is

"equally clear" that evidence of a

defendant’s reputation for truthfulness may

not be introduced unless specifically placed

in issue. Thus, inherent in her argument is

that evidence of crimen falsi crimes is

different from reputation evidence.

Al14

However, Appellant fails to differentiate

the two methods.

Contrary to Appellant’s position, it

has long been the law of this Commonwealth

that a witness’s credibility may be attacked

by showing her bad reputation for truth and

veracity. ommonwe Vv. w , 434

Pa.Super. 148, i350, 642 A.26@ $37, Si?

(1994), allocatu ied, 539 Pa. 688, 653

A.2d 1227 (1994) (citing Commonwealth v.

Payne, 205 Pa. 101, 104, S4 A. 489, 491

(1903)). In Butler, the court stated, "[a

defendant’s] previous record is admissible

for [impeaching credibility] just the same

as testimony of prior reputation for

veracity is evidence for the /jury’s

consideration." 405 Pa. at 47, 173 A.2d at

474. See also Fowler, 434 Pa.Super. 148,

642 A.2d 517 (1994) (recognizing that a

defendant’s good reputation for truth and

veracity may be introduced when he was

Al15

“impeached by evidence of bad reputation for

truth and veracity."); Packel & Poulin,

supra, § 608.1.

Based on our review of the relevant

case law, we can discern no distinguishing

factor that would allow the use of crimen

falsi convictions to impeach a defendant’s

credibility, yet bar the use of evidence of

reputation for veracity for the same

purpose. Further, Appellant has provided no

reason why a defendant should be treated any

differently than any other witness with

regard to issues of credibility; upon

testifying at trial, a defendant, like any

other witness, places her credibility at

issue. That credibility may be impeached by

prior crimen falsi convictions and/or by

evidence of the defendant’s reputation for

untruthfulness. Thus, the trial court did

not abuse its discretion in allowing the

Commonwealth to introduce evidence of this

Al6

sort.

Appellant’s next allegation of error

concerning the evidence of her reputation

for truthfulness is that it was too remote

in time to be admissible. The trial

commenced on March 14, 1994. Diane Campbell

testified that she knew Appellant’s

reputation from 1979 to the mid-1980’s.

Michelle Steinbacher knew Appellant’s

reputation from 1981 to 1985. The final

reputation witness, Gloria Harbough, knew

Appellant’s reputation in 1989. The

community from which the reputation was

garnered was a hospitai in which the

witnesses worked, and where Appellant was

employed from 1979 until 1990.

As stated above, the admission of

evidence is at the trial court’s discretion.

It has long been held that evidence of

reputation for truthfulness must relate to

the time of trial.

A17

"When at the trial of a

cause the character of a witness

is shown in order to affect his

credibility the question is

whether he then told the truth.

It is his character at the time

he testifies that is under

investigation, and this is to be

established by evidence of his

general reputation at that time.

Smith v. Hine, 179 Pa. 203, 206-07, 36 A.

222, 222 (1897); see also Miller v. Miller,

187 Pa. 572, 41 A. 277 (1898); Commonwealth

v. Hansell, 185 Pa.Super. 443, 137 A.2d 816

(1958). The reason for this is that it

would be unfair to judge a person, whether

positively or negatively, on her remote

reputation which may no longer be applicable

or true.

Although recent case law does not

Als

provide specific examples of time frames by

which to measure remoteness, our Supreme

Court has addressed the issue in the past.

See Miller, 187 Pa. 572, 41 A. 277 (1898)

(reputation evidence related to period four

years before trial too remote); Smith, i79

Pa. 203, 36 A. 222 (1897) (two years too

remote) . However, in deciding whether

evidence of a defendant’s prior bad acts is

too remote, "no rigid rule can be formulated

for determining when such evidence is no

longer relevant. .. . The trial court’s

determination will not be disturbed absent

an abuse of discretion." Commonwealth v.

Ulatoski, 472 Pa. 53, 63, 371 A.2d 186, 191-

92 (1977). Even though Ulatoski did not

address the timeliness of reputation

evidence, the same principles are applicable

to the immediate issue. See Commonwealth v.

White, 271 Pa. S84, 215 A. B70 {3922)

(whether reputation evidence remote in

A19

particular circumstance is at trial court’s

discretion).

In White, the court recognized that

twenty year old evidence of a defendant’s

reputation for bad character was admissible

when coupled with proof that the bad

character continued at all times to the date

of trial. 26 Me. SOT, 238" As RE-. S7z.

Standing alone, the twenty year old

reputation evidence was not admissible. Id.

at 588, 115 A. at 871. However, accompanied

by more recent bad character reputation

evidence, the remote reputation evidence was

proper to show that the defendant had a

continuously bad reputation. Id.

Similarly, the admission of character

evidence in the instant case evidences

Appellant’s continuous reputation for

dishonesty. Several witnesses testified

that from approximately 1979 until 1989,

Appellant had a reputation for dishonesty

A20

Thus, the Commonwealth established an on-

going, continuous reputation for dishonesty,

corroborated by more than one person and

spanning eleven years. This is not a case

in which the only reputation evidence is one

witness who testified that she knew the

defendant for a short time many years ago.

Based upon the trial court’s discretion

in this matter, there is no bright line to

determine exactly when reputation evidence

is too remote. In addition, remoteness is

often a question of weight, not

admissibility. Ulatoski, 472 Pa. at 62, 371

A.2d at 190-91 (¢giting 2 J. Wigmore,

Evidence 396 (3rd ed. 1940)). We note that

in closing argument, Appellant attacked the

weight of the evidence by reminding the jury

of its timeliness.

Further, the gap between the most

recent evidence and the death of Appellant’s

husband was only three years. At trial,

A21

numerous statements made by Appellant at the

time of the death were admitted at trial.

Thus, her credibility at the time she made

the statements was also in issue. Because

the reputation evidence ranged from five

years before trial to only three years

before the crime charged, we hold that the

reputation evidence was not too remote.

Appellant also takes exception to the

testimony of Michelle Steinbacher that

Appellant "wasn’t trusted by my staff," in

response to a question concerning

Appellant’s reputation for truthfulness.

Appellant immediately objected. The trial

court sustained the objection and had the

answer stricken from the record. In light

of the fact that the answer was brief and

was stricken from the record, Appellant has

not established how the testimony prejudiced

her. Moreover, Appellant did not seek a

curative instruction or a mistrial. See

A22

Commonwealth v. Jones, 501 Pa. 162, 460 A.2d

739 (1983) (issue waived for failure to

request curative instruction or mistrial

after objection sustained). Thus, this

argument is without merit.

Appellant’s final argument concerning

the reputation evidence is addressed to the

testimony of Gloria Harbough, who stated

that she fired Appellant from the hospital

in 1990. Appellant contends that this

specific evidence of her reputation should

not have been admitted. We note that

Appellant raised no objection at trial to

this testimony.

As the trial court correctly pointed

out, Harbough testified for two purposes.

One was to offer reputation evidence, and

the other was to rebut Appellant’s claim

that she left the hospital in 1990 in order

to further her education. Hence,

Harbourgh’s testimony was proper rebuttal

A23

evidence. We hold that the trial court did

not abuse its discretion in admitting this

evidence.

3. Trial Counsel’s Cross-examination of

Dr. Hume

Appellant’s third point of error is

that trial counsel was ineffective for not

cross-examining Dr. John Hume more

extensively. The Commonwealth called Dr.

Hume to testify as an expert in forensic

psychiatry. He testified, contrary to

Appellant’s expert witness, that he did not

believe the deceased was at a high risk for

suicide at the time of his death. On cross-

examination, Appellant’s trial counsel

inquired as to who had hired him to testify,

the length of time period he had been

involved in the case, the absence of a

written report, and the fact that he was not

a board certified forensic psychiatrist.

In reviewing a claim of ineffectiveness

A24

of counsel, it is Appellant’s burden to show

that the claim is of arguable merit, that

counsel’s action or inaction did not have

a reasonable basis designed to effectuate

her interests, and that counsel’s action or

inaction was prejudicial. Paolello, Pa.

at , 665 A.2d at 454. The issue here is

whether counsel’s cross-examination had a

reasonable basis intended to effectuate her

interests, and we agree with the trial court

that there was such a basis for counsel’s

actions.

In reviewing trial counsel’s

performance, we will not find

ineffectiveness for failure to choose the

best trial tactics or strategy to effectuate

Appellant’s interests. Rather, the proper

inquiry is whether counsel’s actions or lack

thereof had some reasonable basis.

Commonwealth v. Pierce, 537 Pa. 514, 524,

645 A.2d 189, 195 (1994) (citation omitted).

A25

ey ere

ee ete Bee ne eg

See a ee ee oe

If so, counsel is deemed effective. BM

Trial counsel’s decision to limit his

cross-examination did have some reasonable

basis. Appellant presented her own expert

witness, Dr. Harry A. Doyle, a certified

forensic psychiatrist, who testified that in

his expert opinion the deceased was at risk

for suicide at the time of his death. Thus,

the persuasiveness of the competing experts

rested on such factors as credibility,

familiarity with the case, and

qualifications. During cross-examination,

trial counsel elicited the fact that pr.

Hume was being paid by the Commonwealth, had

only been on the case three to four weeks,

did not make a written report, and was not

board certified. In addition, an extended

cross-examination might have allowed Dr.

Hume to restate his opinion regarding the

deceased’s risk of suicide. Thus, trial

counsel’s limited cross-examination of Dr.

A26

Hume had some reasonable basis designed to

effectuate Appellant’s interest.

4. Evidence of Appellant’s Prior Bad Acts

Appellant fourth argument concerns

evidence elicited from Bonnie Frey, who

lived with the Showers during 1985 and 1986,

that Appellant instructed Diane Showers, the

daughter of Appellant and the deceased, to

place medicine in the deceased’s coffee

without his knowledge. Appellant contends

that this evidence is irrelevant and

extremely prejudicial because the events are

too remote in time, and that counsel was

ineffective for failing to object to its

admission.

Appellant concedes that evidence of a

prior course of conduct is relevant. Her

only point of contention is that the

incidents were too remote in time to be

admissible. In Ulatoski, our Supreme Court

discussed the admission of evidence of prior

A27

EEE

eae are

relations between a defendant and a homicide

victim:

"evidence concerning the nature of the

marital relationship is admissible for the

purpose of proving ill will, motive or

malice. This includes, in particular,

evidence that the accused physically abused

his or her spouse... . [I]t is generally

true that remoteness of the prior instances

of hostility and strained relations affects

the weight of that evidence and not its

admissibility. ... [N)Jo rigid rule can be

formulated for determining when’ such

evidence is no longer relevant."

472 Pa. at 60-61, 371 A.2d at 190-91

(citations omitted). In deciding when

evidence of other crimes or bad acts is too

remote, the importance of the time period is

inversely proportional to the similarity of

the crime or acts. Commonwealth v. Miller,

2G, 8. 33i,. 349, 864 A. 2G “1310, 2%319

A28

(1995), cert. denied, 116 S.Ct. 932 (1996).

Remoteness is a question best left to the

discretion of the trial court. JUlatoski,

472 Pa. at 63, 371 A.2d at 191-92 (citation

omitted).

In the instant case, the prior acts and

the death of the deceased occurred

approximately six to seven years apart. The

Similarity between the acts described by

Bonnie Frey and the crime charged are

strikingly close. Both involved the

administration of prescription drugs to the

deceased in the same manner without his

knowledge. Frey testified that although

Appellant explained having placed the

medication in the coffee in terms of the

deceased’s refusal to take what had been

prescribed for him, it was often done

because Appellant wanted to go shopping.

Having been made drowsy by the medication,

the deceased could not complain about the

A29

shopping trips. Therefore there can be no

contention that Appellant acted as she did

for her husband’s benefit. Moreover, the

prior acts occurred on more than one

occasion.

Based on the foregoing, any objection

to the evidence of Appellant’s prior acts in

drugging the deceased would have been

meritless, and counsel will not be deemed

ineffective for failing to raise a meritless

argument. Pete i ie Pe. Qt... 665

A.2d at 454. The evidence was relevant to

show the nature of the relationship between

Appellant and the deceased, and to rebut her

claim that the death was a suicide. Any

remoteness affected the weight of the

evidence, not its admissibility.

5. Trooper McBride’s Testimony

Appellant’s fifth contention is that

the trial court erred in denying a mistrial

when Trooper McBride, the investigating

A30

officer, was asked about the investigation

into the death of Appellant’s husband. In

response, he stated, "Well, in December of -

- now, like I say, my doubts, my concerns,

my suspicions have been growing and -- but

there’s just -- I don’t want to jump to a

conclusion. But in December I reached the

point that I felt there was a reasonable

doubt that a suicide occurred." Appellant

immediately objected and asked for a

mistrial. The trial court denied the

motion, but did give the jury a curative

instruction that the use of "reasonable

doubt" was irrelevant, and that the court

would instruct the jury at the end of the

trial on the proper use of the term.

Whether a mistrial is required is at

the discretion of the trial court.

Commonwealth v. Johnson, Pa. ; ‘

668 A.2d 97, 103 (1995). A mistrial is only

warranted where the incident is of such

A31

a Rs eres

mature as to deny the defendant a fair

trial. >t. Additionally, a jury is

presumed to follow the instructions of the

trial court. Commonw v. Jones, __ Pa.

P , 668 A.2d 491, 503-04 (1995). A

curative instruction was immediately given.

Furthermore, the remark was not

intentionally elicited nor exploited by the

Commonwealth. We hold that the trial court

did not abuse its discretion in denying a

mistrial.

6. Limited Use Immunity for Diane Shower

Appellant’s sixth argument revolves

around the Commonwealth’s grant of limited

use immunity for Diane Showers in order to

allow her to testify concerning certain

events which occurred approximately two

months before the murder. Within this issue

are three arguments: 1) the grant of

immunity did not comport with 42 Pa.C.S.A.

§ 5947; 2) the Commonwealth was erroneously

A32

allowed to treat Diane as a hostile witness;

and 3) Appellant was erroneously prevented

from cross-examining her on any matters

beyond the scope of the limited grant of

immunity.

Appellant does not have standing to

allege that the grant of limited use

immunity did not comply with the statutory

scheme. ommonw h_v. Schomaker, 293

Pa.Super. 78, 87, 437 A.2d 999, 1003 n. 3

(1981) (citing Commonwealth v. Russell, 225

Pa.Super. 133, 136-37, 310 A.2d 296, 298

(1973)), 2s rounds, 501 Pa.

404, 461 A.2d 1220 (1983)). The section

addressing requests and issuance of an

immunity order reads:

"The Attorney General or a district

attorney may request an immunity order from

any judge of a designated court, and that

judge shall issue such an order, when in the

judgment of the Attorney General or district

A33

attorney:

1) the testimony or other information

from a witness may be necessary to the

public interest; and

2) a witness has refused or is likely

to refuse to testify or provide other

information on the basis of his privilege

against self-incrimination." 42 Pa.C.S.A.

§ 5947(b).

Appellant contends that the

Commonwealth did not satisfy the requirement

that the immunized testimony be necessary to

the public interest. Whether a grant of

immunity was proper is an issue that

concerns the rights of the person who is

ordered to testify pursuant to the grant.

Therefore, only that person may contest the

necessity of the testimony or information to

the public interest.

Appellant’s next two arguments on this

issue concern the interrogation of Diane

A34

Showers. The trial court allowed the

Commonwealth to treat the witness as

hostile, and limited Appellant’s cross-

examination of her to matters related to the

limited use immunity.

The scope and manner of cross-

examination is left to the discretion of the

trial court whose decision will not be

disturbed absent an abuse of that

discretion. Commonwealth v. Wilson, 538 Pa.

485, 506, 649 A.2d 435, 445 (1994), cert.

denied, 116 S.Ct. 145 (1995). The trial

court allowed the Commonwealth to treat

Diane as a hostile witness based upon her

relation to Appellant, her invocation of the

right not to incriminate herself, and her

refusal to cooperate with the state police.

We find no error in the court’s decision.

See Commonwealth v. Settles, 442 Pa. 159,

275 A.2d 61 (1971) (Commonwealth could

cross-examine its own witness who was

A35

sister-in-law and associate of defendant).

Contrary to Appellant’s claim, the

trial court did not err in limiting

Appellant’s cross-examination of Diane to

matters related to the immunity. The cross-

examination was restricted to the scope of

the Commonwealth’s examination. Moreover,

the court gave Appellant the option of

calling Diane at a later point if the need

arose. Finally, Appellant does not indicate

what she would have explored on cross, now

how she was prejudiced by any limitation

placed on her inquiries. The trial court

did not abuse its discretion in its rulings

concerning Diane’s testimony.

7. Janette Andrews’ Testimony

Appellant’s seventh allegation of error

pertains to the testimony of Janette

Andrews, a friend of Diane's. The

Commonwealth attempted to establish that

approximately two months before’ the

A36

deceased’s death, Appellant called Diane

late at night and asked her to find out if

the deceased was at Sylvia Knecht’s house.

Diane testified that she, rather than

Appellant, had initiated the conversation,

and that she went to Sylvia Knecht’s house

not at Appellant’s request, but to look for

the deceased because he had tried to phone

her earlier.

Andrews was with Diane that evening,

and her testimony contradicted Diane’s

version of events. According to Andrews,

Appellant had telephoned Diane, not the

other way around. Andrews testified that

Diane told her that Appellant reported

seeing the deceased’s car parked at Sylvia

Knecht’s house earlier in the day, and that

Appellant wanted Diane to discover whether

the car was still there. Andrews also

testified that Diane called her two weeks

prior to trial and commented that their

A37

versions of what had transpired were

inconsistent.

Appellant contends that Andrews’

testimony was erroneously admitted because

the Commonwealth was allowed to impeach its

own witness, Diane, by eliciting a different

version of the events to which Diane

testified. Appellant also alleges that

Andrews’ testimony contained inadmissible

hearsay. Furthermore, Appellant contends

that it was impermissible for Andrews to

testify that Diane called her two weeks

before trial to tell her that their versions

of the event were different, because the

testimony went beyond the scope of the

Diane‘s [sic] limited immunity and the

Commonwealth’s offer of proof for Andrews.

Again, our standard of review on

matters involving the admission of evidence

is whether the trial court abused its

discretion. The court held that the

A38

Commonwealth did not intend to impeach

Diane, and only called Andrews after Diane

had testified to a different version of the

events of the evening in question. The

court also held that Andrews’ testimony

concerning Diane’s telephone call two weeks

before the trial was not hearsay because it

was used for purposes of impeachment, nor

did it exceed the scope of Diane’s limited

immunity or the offer of proof because the

conversation pertained to events about which

Diane had already testified.

We first note that the Commonwealth did

not impeach Diane by eliciting from Andrews

a different version of the events of the

night in question. Our Supreme Court has

explicitly held, "[I]t is well settled a

party may contradict his own witness by

independent evidence showing facts to be

different from those testified to by such

witness[.] .. . Such rule does not violate

A39

the general rule that one may not impeach

his own witness because to contradict is not

to impeach." m w v._ Myrick, 468

Pa. 155, 164, 360 A.2d 598, 602 (1976)

(citations omitted).

Appellant’s contention that Andrews’

testimony contained inadmissible hearsay

also fails. Although Andrews did repeat

what Diane told her, the trial court

correctly noted that the out-of-court

statement was not used for the truth of the

matter, but to impeach Diane. It is well-

settled that a witness may be impeached by

a prior statement as long as the statement

is inconsistent with her trial testimony.

Commonwealth v. Brown, 538 Pa. 410, 427, 648

A.2d 1177, 1185 (1994). It is clear in the

instant case that what Diane said to Andrews

on the night in question was inconsistent

with her trial testimony.

Appellant claims that the Commonwealth

A40

could not impeach its own witness with prior

inconsistent statements. Commonwealth v.

rimes, 436 Pa.Super. 535, 545, 648 A.2d

538, 540 (1994). The element of surprise is

not an absolute requirement. "Pennsylvania

courts have frequently permitted parties to

contradict or impeach witnesses called by

them without a strict requirement of

surprise when the interests of truth and

justice seem to require it." Commonwealth

¥,. Brady, 510 Pa. i123, 235, ..507 A.24a 66,72

(1986) (quoting Commonwealth v. Gee, 467 Pa.

123, 137,384 A.2d 675, 861 (1976)).

In response to Appellant’s contention

that the Commonwealth sought to call Diane

as a hostile witness based on foreknowledge

of the evidence she would give, we note, as

stated above, that she was treated as a

hostile witness for reasons other than the

substance of her proposed testimony.

Moreover, the trial court expressly found

A4l1

that the Commonwealth did not know what

Diane would say on the stand. Additionally,

Diane’s testimony was detrimental to the

Commonwealth’s case as it directly

contradicted events related by Andrews. We

hold that based upon the interests of "truth

and justice," the trial court did not abuse

its discretion in allowing the Commonwealth

to impeach Diane with Andrews’ testimony.

Further, Andrews’ testimony that Diane

called her two weeks before the trial was

not improperly admitted. The trial court

allowed this evidence on the ground that it

impeached Diane, and that it was not outside

the scope of Diane’s limited immunity

because the conversation concerned events

about which Diane had already testified.

Even if the testimony concerning the

telephone call was inadmissible, Appellant

has not shown how it prejudiced her.

Andrews did not testify that Diane told her

A42

to change her story or to lie. Rather, she

merely testified that during their

conversation, Diane said that Appellant did

not know about the trip to Sylvia Knecht’s

house on the evening in question, and that

their recollections of that night were

different. Given the fact that Andrews had

already contradicted Diane’s version of

events, this evidence was merely cumulative

of other, properly admitted evidence.

Therefore, we hold that even if the trial

court abused its discretion in allowing

Andrews’ testimony to be admitted into

evidence, Appellant has not shown sufficient

prejudice requiring a new trial.

8. The Commonwealth’s Cross-examination

of Dr. Doyle

Finally, Appellant argues that the

trial court erred in allowing the

Commonwealth to cross-exam [sic] Dr. Doyle,

the defense’s forensic psychiatrist, about

A43

a report that Appellant was having an affair

during the mid-1970's. She contends that

the evidence was inadmissible hearsay,

highly prejudicial, and too remote in time.

Appellant alleges that a cautionary

instruction should have been given.

As previously stated, the scope and

limits of cross-examination are at the trial

court’s discretion. Moreover, the trial

court told Appellant that she could request

a cautionary instruction. No request was

ever made. Finally, the Commonwealth

properly explored Dr. Boyle’s basis for his

expert opinion. Dr. Boyle relied upon

events which occurred as early as 1972. In

addition, there were numerous references to

Appellant’s extramarital affairs already in

evidence. Thus, the hearsay claim is

unsupported and meritless, and the trial

court did not abuse its discretion in

allowing the Commonwealth to cross-examine

A44

Dr. Boyle concerning Appellant’s alleged

affair.

Affirmed.

McEWEN, PRESIDENT JUDGE, DISSENTS.

FILED: June 20, 1996.

A45

IN THE COURT OF COMMON PLEAS

NORTHUMBERLAND COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA

Vv.

JUDY ANN SHOWERS,

Defendant

Criminal Law Division

No. CR-93-402

OPINION

Feudale, J.

On March 23, 1994, after a one week

trial, a jury found the Defendant, Judy

Showers, guilty of Murder in the first

degree, the jury found the Defendant not

guilty of Murder in the third degree. Due

to the mandatory sentence of life

imprisonment, defense counsel agreed to

sentencing immediately after the verdict to

enable the Defendant to proceed with Post-

Sentencing Motions. On March 23, 1995, upon

consideration of é Motion by the

A46

Commonwealth, the Defendant’s Post-Sentence

Motions were denied by operation of law

pursuant to Pa.R.Cr.P. 1410. [Footnote 1:

Argument concerning the Post-Sentencing

Motions was. scheduled. However, due to

factors, in particular, the Defendant’s

change of counsel, Argument did not occur.]

On April 13, 1995, the Defendant, through

new appellant counsel, filed an Appeal of

our Order denying the Defendant’s Post-

Sentence Motions to the Superior Court of

Pennsylvania. On April 18, 1995, the Court

filed an Order pursuant to Pa.R.A.P.

1925(b), requesting from the Defendant a

concise statement of matters complained of

On appeal. The Defendant complied with the

Order, filing a concise statement of matters

complained of on appeal on May 4, 1995.

This Opinion is submitted pursuant to

Pa.R.A.P. 1925(a) without the benefit of

briefs and argument of counsel.

A47

The Defendant’s concise statement of

matters complained of on appeal contains

thirteen general issues. We will address

each issue separately, in the order that the

issues were raised.

Motion in Arrest of Judgement

A. The evidence is insufficient, as a

matter of law, to sustain the verdict of

first-degree murder because the Commonwealth

tailed to prove beyond a reasonable doubt

that Delbert Showers was murdered by the

Defendant as opposed to having had committed

suicide.

"The standard of review for the trial

court as it passes upon a motion in arrest

of judgment, is limited to a determination

of the absence or presence of that quantum

of evidence necessary to establish the

elements of the crime. The trial court is

required to view the evidence in the light

most favorable to the Commonwealth, as

A48

verdict winner, and may not alter the

verdict based on a redetermination of

credibility or a reevaluation of the

evidence. Before granting an arrest of

judgment, the trial court must find the

evidence supporting the verdict to be so

weak and inconclusive that a jury of

reasonable persons would not have been

satisfied as to the accused’s guilt."

Commonwealth v. Bigelow, 416 Pa.Super. 449,

611 A.2d 301, 303 (1992) (citations omitted).

A review of the case indicates

sufficient evidence for each element of the

crime of first degree murder was presented

to the jury. A concise review of the

evidence in the light most favorable to the

Commonwealth follows.

The body of the deceased, Delbert

Showers, was found on his couch containing

the drug Serax, an anti-anxiety drug, anda

lethal dose of Roxanol, liquid morphine.

A49

ERR RE ERS

The deceased obtained the Serax from a

prescription written by Dr. Ina Gilmore a

few years before his death. The deceased

visited Dr. Gilmore more for anxiety than

for depression. He made no comments to the

Doctor concerning any suicidal feelings.

The Roxanol came from the house of

Helen Wolfe, who possessed a prescription

for the drug for the pain she suffered from

due to cancer. The lethal Roxanol was

surreptitiously taken from Helen Wolfe’s

Roxanol bottle and then the missing amount

was replaced by water to cover up the

removal.

The day the deceased died, the

Defendant was the only other person in the

house with the deceased. Only two logical

possibilities were presented to the jury.

First, the Defendant murdered the deceased

by introducing a lethal dose of Serax into

the deceased and then introducing a lethal

ASO

dose of morphine into the deceased. Second,

the deceased committed suicide by self-

ingesting the drugs. No other possibility

was suggested to the jury and no other

possibility appears realistic to the Court.

The Commonwealth introduced credible

evidence concerning a motive for homicide by

the Defendant. The deceased, at the time of

his death, was involved in an affair with

another woman, Sylvia Knecht. Sylvia Knecht

was the sister of Helen Wolfe, a friend of

both the deceased and the Defendant. Years

earlier, the deceased was also involved in

an affair with Helen Wolfe and there was

testimony that the Defendant herself, had

been involved in an affair with John Fred

Wolfe, the husband of Helen Wolfe.

The Defendant insisted that she was

unaware of whom the deceased was involved

with in the affair at the time of his death.

However, the Defendant sent her daughter,

A51

ean rear ee

Diane Showers, to drive to Sylvia Knecht’s

home to see if the deceased’s vehicle was

parked outside. The Defendant also _ ;

confronted the deceased concerning the

affair and threatened to leave him over it.

A financial motive also existed. The

Defendant was worth over $600,000.00. Yet,

testimony was received that the deceased was

"tight" with his money. He did not lavishly

spend money on his wife or daughters. After

Delbert Shower’s [sic] death, the Defendant

made phone calls to the deceased’s life

insurance company inquiring when she would

receive the benefits.

The Defendant had ample opportunity to

murder the deceased. In the weeks before

Delbert Showers death, both Helen and John

Fred Wolfe were away from their house for a

few days. The Defendant possessed knowledge

of this fact and would have been able to

gain access to the Wolfe house to obtain the

A52

Roxanol and replace it with water. The

Defendant was the only person in the

presence of the deceased both the night

before and the morning and afternoon of the

day the body was found.

The Defendant possessed the requisite

knowledge to administer the drugs to the

deceased without his awareness. The

Defendant was a nurse, experienced in the

administering of drugs. Additionally, the

witness Bonnie Frey testified that in the

past she had observed the Defendant

participate in the drugging of the Delbert

Showers [sic] so that he would pass out and

the Defendant and her daughters would then

go shopping.

In addition, the Defendant’s own words

and actions during the time of Delbert

Showers’ death, the police investigation,

and the trial contributed to the verdict.

Most important is the issue of the suicide

A53

hk ARAN ects ety

note. The Defendant’s original story was

that she awoke that day around 4:30 p.m.

She came downstairs, glanced into the room

where the deceased was lying in the couch,

but continued to do things around the house,

believing the deceased was only sleeping.

At 5:30 P.M., she find the body, calls the

deceased’s brother and then calls 911.

Later, the suicide note is found beneath the

body. The deceased is dressed only ina

torn pair of underwear, ripped so badly that

his genitals are exposed.

During the beginning of the

investigation, the Defendant identifies the

writing of the note as that of her husband.

The note, a document of over 200 words, is

complex. It references the affair the

deceased is involved in. It cross-

references a note the Defendant allegedly

wrote earlier in the morning concerning the

Defendant being up part of the night,

A54

vomiting. The note also states what drugs

were taken and where the Roxanol originated.

Of some importance, the note states that

Helen Wolfe is unaware that the Roxanol was

taken from her prescription.

For months the Defendant stuck to her

story that the suicide note was written by

the deceased. Finally, Trooper McBride

confronted the Defendant with information

from the State Police Crime Lab indicating

that the deceased could not have written the

note. Now the Defendant changes her story

and admits she wrote the note. The version

she presents at trial states that when she

discovered that her husband was dead at 5:30

P.M. and found no suicide note, she was

worried she would be suspected of murder.

To allay those suspicions, she forged the

suicide note. Without addressing at this

point the credibility of this version, the

Court is struck by the question of how, if

AS55

the Defendant, wrote the suicide note, she

knew that her husband had taken the Roxanol

from. Helen Wolfe’s home, without Helen

Wolfe’s knowledge. For all the Defendant

knew, Helen Wolfe could have assisted the

deceased in his suicide attempt. The

Defendant never explained how she knew this

fact and therefore inserted it into the

suicide note.

The Defendant testified that she wrote

the note between the time after she called

911 and before an incoming phone call was

recorded. The Commonwealth was able to show

that this time frame consisted of six

minutes. A careful reading of the suicide

note demonstrates that the note was not a

simple farewell. As stated before, it

references many topics, cross-references

part of the Defendant’s story about being

ill the night before and in addition, the

Defendant had to disguise her own

A56

handwriting. All this occurred in six

minutes. Additionally, within this six

minutes the Defendant’s version of the facts

claim that she picked up empty Serax

capsules from the floor and that she washed

out the contained that had contained the

Roxanol. Later, she would again change her

story claiming the Roxanol container was a

paper cup and she merely threw it away. She

then folded the note, put it in an envelope

and placed it uncer the 250 pound, dead

body.