Petition for Writ of Certiorari — Witman v. Pennsylvania

the knife or the gloves to anyone in the Witman household. Still

they were convinced that the knife belonged to Zach because he

had a collection of pocket knifes, along with a collection of toy

metal cars, watches, and Pez dispensers.

At trial, the prosecution conceded that it had no motive

~ that Zach and Greg had a good relationship and that there was

no explanation for why Zach would brutally murder his younger

brother. The prosecution’s case rested primarily on the

testimony of a “blood spatter” witness who analyzed the blood

in the Witman house and on Zach’s sweatshirt. She conciuded,

based on an experiment she conducted with a blood-soaked

sponge, that Zach must have been near Greg when he was

stabbed. Significantly, however, although there was blood

throughout the downstairs of the house, there was no blood on

the stairs or in the upstairs bedrooms. Yet Erynn Jeffries was

certain that Zach had spoken to her just minutes before he called

911 from the upstairs phone. There also was no blood on Zach’s

hair or face, and no evidence that Zach had done anything to

clean up before the EMT personnel arrived.

The jury convicted Zach of first degree murder.' Zach

could not be sentenced to death. He was too young. But, though

he was only fifteen when the crime occurred, because he was

tried as an adult, once convicted, his sentence was mandatory:

life imprisonment without the possibility of parole.

' At the time of Greg's death, Zach was a 15-year-old

boy. Although images of Greg that the jury saw froze him in

time as a 13-year-old, by the time the case came to trial in adult

court, Zachary had grown into a young man, who at 19 was much

physically larger than he had been four years earlier.

Doubtlessly, the juxtaposition of the 13-year-old murdered boy

and the 19-year-old before them was not lost on the jury.

Because Zach was charged with murder, he was

presumptively to be tried as an adult in criminal court. To be

transferred to juvenile court he had to establish by a

preponderance of the evidence that the transfer would “serve the

public interest.” 42 Pa.C.S.A. § 6322(a). Zach moved for

decertification to the juvenile court and was extensively

examined and subjected to extensive psychological testing by

psychiatrists and psychologists. Most of the mental health

experts agreed that, while Zach was immature for his age, he had

no history of violence and that there was nothing to suggest that

he was a liar, or manipulative, or had psychopathic or

sociopathic tendencies. There was no evidence that he suffered

from a mental disease or defect. Several experienced

psychiatrists, including Dr. Robert Sadoff, recommended that he

be sent to juvenile court because he was uniquely amenable to

treatment, given, among other factors, his age, his lack of

pathology, his intelligence, the absence of any evidence of drug

or alcohol abuse, the absence of any disciplinary problems or

criminal history, his ability to form interpersonal relationships,

the fact that domestic crimes are rarely repeated, and the fact that

he had at least five years remaining for treatment in a juvenile

facility. Dr. Sadoff found that Zach was terribly impacted by his

brother’s death; when asked what he would wish for if he had

three wishes, Zach responded that he “wanted Gregory back.”

When questioned about Zach’s denying his involvement

in the crime, Dr. Sadoff, as did other defense experts,

acknowledged that whether a youngster admits or denies the

crime is a factor that the evaluator must consider. But, in the

experts’ view, admission and denial are complicated, particularly

with a child in a pre-trial setting. A youngster may udmit a crime

even if he is actually innocent for a host of reasons unrelated to

actual guilt or innocence: for example, to protect someone else,

or out of fear or compassion for his family. Or, a youngster may

admit a crime because he has committed it. That child may not

be amenable to treatment if the crime is part of a pattern of

behavior and represents an ingrained part of his personality that

7

is not likely to be changed with treatment. On the other hand,

admission of a crime, when it is inconsistent with the youngster’s

background, would require a closer look at whether the child

could be treated.

Denial is equally complicated. The child could be

denying for reasons separate from actual innocence — because he

is out of touch with reality, because he is not really sure what

happened, because he has disassociated, or because of fear. Or,

he could be denying because he is actually innocent. Dr. Sadoff

testified that a child whose denial was truthful would face

enormous pressure to confess, and would benefit from treatment

in a juvenile facility. He opined that, at the pre-trial stage,

without knowing whether Zach committed the crime, given all

the factors, regardless of whether he admitted or denied the

murder, he was amenable to treatment in a juvenile facility.

The Commonwealth’s psychiatrist, Dr. Larry Rotenberg,

in contrast, focused almost entirely on whether Zach had

committed the crime. He opined that if Zach did not commit the

crime, he did not neeé#treatmierit so he could be tried as an adult;

as he put it, if Zach was innocent “there is no reason to return his

jurisdiction to juvenile court.” Conversely, denial made it

“difficult if not impossible for [Zach] to be treated as juvenile.”

To Dr. Rotenberg, and the Commonwealth’s other experts,

acceptance of guilt was crucial. Any juvenile, no matter his

personal circumstances, who maintains his innocence must be

tried as an adult.

The lower court effectively adopted this reasoning. The

court went through the various factors listed in 42 Pa.C.S.A. §

6355, most of which, by their very nature, militate against

transfer in a murder case, e.g., the nature and circumstances of

the offense and the impact of the offense on the victim and on

the community. Obviously, these factors, which focus on the

offense and not the offender, will never support transfer when a

child is charged with murder.

If a child charged with murder is ever going to be

transferred to a juvenile court, it can only be because of the

subjective factors that look to the offender and not the offense

When it came to these factors, the court twice characterized it as

a “close question” and a “close call.” (App. 21) Nevertheless,

though commenting that Zach was cloaked with a presumption

of innocence, the court emphasized that, in prior cases, only

juveniles who had “accepted responsibility” for their actions

- were transferred to juvenile court, and ultimately concluded that

Zach’s receptiveness to rehabilitation was questionable given

that he denied the crime. (App. 21)

On appeal, the Pennsylvania Superior Court determined

that the trial court had not infringed on the presumption of

innocence. (App. 38) The Court, however, did not address the

crux of petitioner’s claim: that the only factor that really mattered

in the case — Zach’s amenability to treatment — depended on

Zach accepting responsibility before trial for his alleged actions

and that conditioning transfer on a child’s admission of guilt, by

itself, violated due process.

REASONS FOR GRANTING THE WRIT

CERTIORARI SHOULD BE GRANTED TO

RESOLVE THE EXTRAORDINARILY

IMPORTANT QUESTION OF WHETHER

THE DECISION TO TRY A CHILD AS AN

ADULT CAN DEPEND ON WHETHER THE

CHILD ADMITS CULPABILITY FOR THE

CRIME

Whether children who are charged with committing

crimes have the developmental capacity to make the essential

decisions required of the adult criminal defendant is a question

still largely unexplored. Yet, increasingly, children are charged

as adults and serious questions arise about the procedures that are

employed to protect their rights.

9

There is no uniformity in state laws involving juveniles

charged with murder. Children younger than twelve may be

charged as adults in many jurisdictions. National Center for

Juvenile Justice, http://www.ncjj.org/stateprofiles. In some

States, the child is charged in juvenile court and the prosecutor

must take steps to transfer the case to criminal court. Other

States, like Pennsylvania, automatically treat a juvenile charged

with murder as an adult, and it is the child who must establish

that it is in the public interest that he be tried as a juvenile.

The consequences to the child of the forum in which he

is tried are extraordinary, even life-altering. A |5-year-old who

is tried for murder in a juvenile court, if convicted, will receive

treatment, usually until he is 21 (although some states have

experimented with blended sentencing that permits

reconsideration of the sentence if the child is not yet ready for

release). But the same child, if convicted in a criminal court,

will likely face ihe most serious sentence the State can

constitutionally impose — for Zach Witman, life in jail without

the hope of ever being released.’

? The United States is out of step with most of the world

on how it treats juveniles charged with crimes. Article 37(a) of

the United Nations Convention on the Rights of the Child,

November 20, 1989, prohibits life imprisonment without the

possibility of parole for offenses committed by persons under

eighteen years of age. Currently, only a few nations permit the

sentence if the child was under eighteen at the time of the crime.

Patricia Goliath, Juveniles and Life Imprisonment, De Rebus,

May 2003 at 23 ; Human Rights Advocates, Report to the United

Nations Commission on Human Rights, ae 61" Session: The

and Lif nt Wi

Release for Youth Offenders Who Were Under the Age of 18 at

the Time of the Offense, http://www. humanrightsadvocates.org.

10

The States are free to experiment with different options.

for addressing juvenile crime. Nevertheless, juveniles are

entitled to due process protections in-the criminal process.

Application of Gault, 387 U.S. 1, 13-14 (1967); Schall v. Martin,

467 U.S. 253, 264 (1984). Consequently, if a State determines

that a child charged with murder may be treated as a juvenile,

then the procedures for determining whether that child shall be

tried as an adult or as a minor must comply with due process of

law. The question presented here is whether a system that

compels the child to admit to the charged crime as a pre-

condition to transfer to juvenile court, and that treats denial of

the crime as an evidence that the child cannot be rehabilitated,

comports with constitutional standards.

When Zach Witman was forced to choose whether to

admit his guilt or maintain his innocence, he was fifteen years

old, and, by all accounts, especially immature. Fifteen-year-olds

cannot drive, cannot vote, cannot marry, cannot buy cigarettes,

alcohol or pornography, cannot sit on a jury, cannot even consent

to most medical procedures. This is because “the normal 15-

year-old is not prepared to assume the full responsibilities of an

adult.” Thompson v. Oklahoma, 487 U.S. 815, 825 (1988).

This Court has recognized that children are not capable

of making reasoned adult decisions. This, though a woman has

an almost unfettered constitutional right to choose an abortion,

a State may condition that right when dealing with minor

females. See, ¢.g., Lambert v. Wicklund, 520 U.S. 292 (1997);

Qhio v. Akron Center for Reproductive Health, 497 U.S. 502

(1990); Bellotti v. Baird, 428 U.S. 132 (1976). As Justice

Stevens has written:

The Supreme Court of Nevada has held that imposing

a sentence of life without the possibility of parole on a 13-year-

old constitutes cruel and unusual punishment. Naovarath v.

State, 779 P.2d 944 (Nev. 1989).

The State has a strong and legitimate interest in

the welfare ‘of its young citizens, whose

immaturity, inexperience, and lack of judgment

may sometimes impair their ability to exercise

their rights wisely. . . .That interest, which

justifies state-imposed requirements that a minor

obtain his or her parents’ consent before

undergoing an operation, marrying, or entering

military service . . . extends also to the minor’s

decision to terminate her pregnancy.

Hodgson v. Minnesota, 497 U.S. 417, 445 (1990)(Stevens. J.)

(citations omitted).

In the criminal arena, this Court has appreciated the

decreased culpability of minors. Nearly twenty years ago,

recognizing that a fifteen-year-old lacks the maturity to make

completely reasoned decisions, the Court, in Thompson,

invalidated the death penalty for any child under the age of

sixteen at the time the crime was committed.

Earlier this year, the Court extended Thompson to apply

to any child under the age of eighteen when the crime was

committed. Roper v. Simmons, 125 S.Ct. 1183 (2005). The

Court carefully marshaled the data that establishes that

adolescents have an underdeveloped sense of responsibility, are

more vulnerable to outside pressures, have unformed characters,

are reckless and impulsive and, are generally less morally

culpable than adults, and ultimately decided that the Eighth

Amendment forbids the execution of anyone who committed a

crime under the age of eighteen.’

> The due process issues raised in this Petition also

implicate the Eighth Amendment, which, as Thompson and

Roper recognize, prohibits punishment that exceeds the moral

culpability of the child.

12

A recent study by the MacArthur Foundation Research

Network of Adolescent Development and Juvenile Justice has

found that juveniles aged | 5 or younger are likely to be impaired

in their ability to function as competent defendants. Indeed,

about one-fifth of 14-15 year-olds have the adjudicative

competence of seriously mentally ill adults. See MacArthur

Juvenile Competence Study, http://www.adij.org. See generally,

Elizabeth. S. Scott & Thomas Grisso, Developmental

Incompetence, Due Process, and Juvenile Justice Policy, 83 N.C.

L. Rev. 793, 820-28 (May 2005). The MacArthur results and

this Court’s recent juvenile death penalty cases and parental

consent cases recognize the same fundamental truth: that

children reason differently from adults and cannot be cxpected

to make many of the informed decisions that adults face on a

daily basis.

Children, of course, often participate in the legal process

even before they have the maturity necessary to make decisions

of legal consequence. Guardians ad litem are appointed to

protect their rights and parents advise and guide their children in

their decision-making. But there are some decisions that cannot

be delegated to a parent or to a third party. The decision whether

to admit or deny culpability for a crime cannot be made by

anyone but the child. Consequently, the child is utterly

unprotected even though his decision may become the single

most important factor in deciding whether he is amenable to

treatment in juvenile court.

As this case represents in perhaps its purest form, a

judicial system that focuses on whether to try a child as an adult

for the crime of murder based on whether the child admits or

denies guilt for the crime forces the child to make an

uncounseled decision fraught with implications that the child

cannot possibly comprehend. Zach Witman was a perfect

candidate for juvenile treatment. He had no record, no

disciplinary problems, no history of violence. He is neither

manipulative nor sociopathic. There is absolutely nothing in his

13

background that could account for this brutal act. And, as

several experts testified, even if he did commit the unfathomable

act of murdering his younger brother, he was unlikely to pose a

future danger because domestic murderers are rarely recidivists,

especially when, as with Zach, there is no pattern of violent

behavior.

If Zach had admitted to the crime, it is likely that, with all

the factors that militated in favor of his amenability to treatment,

he would have been transferred to juvenile court. But, by

denying that he killed his brother, in effect, he sealed his fate.

Unless acquitted, he faced the ultimate punishment short of

death: life in prison without the possibility of parole.‘

The dilemma faced by Zach Witman, unfortunately, is not

unique. There has been a nationwide movement towards trying

younger and younger children as adults. By the mid-1990's,

forty-eight States allowed children to be charged as adults;

twenty-three States have no minimum age at which children can

be tried as adults. Laurence Steinberg, Juveniles On Trial:

18 Criminal Justice Magazine 3 (ABA Fall 2003). Forty-one

* The position adopted by the Commonwealth essentially

precludes an innocent child from ever being transferred to a

juvenile court. According to the Commonwealth’s experts, if

innocent, Zach would be acquitted and would have no need for

treatment. Unfortunately, innocent people are sometimes

convicted and, as the defense experts testified, a child who is

innocent and convicted would desperately need the treatment

available in a juvenile facility. If not innocent, which the

Commonwealth’s experts clearly presumed, thendenial signified

lack of remorse and an inability to be rehabilitated. A child who

is guilty may be unable to face the reality of his guilt; he too

needs treatment and, depending on his background, might be

amenable to treatment despite his denial of guilt.

14

States now allow a sentence of life imprisonment without the

possibility of parole to be imposed on a juvenile. D. LaBelle, A.

Phillips & L. Horton, Second Chances: Juveniles Serving Life

Without Parole in Michigan Prisons (ACLU/Michigan, 2004),

www.aclumich.org/pubs/juvenilelifers. pdf

Still, despite this trend, many states, like Pennsylvania,

recognize that some children, no matter how heinous the act with

which they are charged, may be amenable to treatment in the

juvenile justice system and should »ot be incarcerated for the

remainder of their lives. Determin:ig which child meets the

criteria for juvenile treatment — put another way, determining

which child is capable of rehabilitation — is not an easy task. But

the Constitution cannot permit that determination to rest on

whether a child with limited ability to make mature and reasoned

decisions admits or denies his complicity in the charged crime.

15

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be granted.

Dated: September 30, 2005

Respectfully,

Nathan Z. Dershowitz

Amy Adelson

Dershowitz, Eiger & Adelson, P.C.

220 Fifth Avenue, Suite 300

New York, NY 10001

(212) 889-4009

16

APPENDIX

IN THE COURT OF COMMON PLEAS OF

YORK COUNTY PENNSYLVANIA

COMMONWEALTH OF _ : No. 5411 CA 1998

PENNSYLVANIA

vs. Cr.minal Homicide

ZACHARY PAUL

WITMAN

Appearances:

H. Stanley kebert, Esquire

District Attorney of York County

Marilou V. Erb

Assistant District Attorney

- For the Commonwealth

Christina Gutierrez, Esquire

Thomas Kearney, Esquire

For the Defendant

OPINION

WITH FINDINGS OF FACT

Before the Court is Defendant Zachary P. Witman’s

PETITION TO RETAIN JUVENILE COURT

JURISDICTION PURSUANT TO 42 P.C.S.A., SECTION

6322(a) and thereafter captioned in the supporting memorandum

as a MOTION TO TRANSFER CASE FROM CRIMINAL

PROCEEDINGS PURSUANT TO 42 P.C.S.A., SECTION

6322(a). Testimony was heard by the Court on May 7, 1999 and

May 13, 1999. Conflicts in calendaring dictated that additional

testimony be tendered to the Court by way of deposition. The

Defendant waived his right to be present at aforementioned

App. |!

depositions at the conclsion of the May 13, 1999 proceeding.

However, it appears, from the records provided to the Court that

the Defendant was indeed present at the depositions taken on

May 21, 1999, notwithstanding his earlier waiver. In addition,

by agreement of counsel, the record before the Court also

includes affidavits from defense witnesses in support of transfer

by way of stipulation. Pending review of the affidavits, the

Commonwealth preserved the opportunity to cross examine the

defense witnesses submitted by affidavit. The Court directed the

production of the transcript of the 911 tape, a copy of the 911

tape, and a transcript of the Preliminary Hearing by virtue that

the expert witnesses had testified that they were privy to such

information as part of their history. These items are deemed part

of the record for the purposes of this proceeding. The Court

chose not to seek review of the Police investigators notes which

likewise were submitted to the experts. These reports, unlike the

participants at the transcribed Preliminary Hearing were not

subject to the scrutiny of cross examination. The Court directed

the Commonwealth to advise whether or not cross examination

- or further rebuttal testimony would be sought on or before May

28, 1999. No further cross examination or rebuttal has been

sought by the Commonwealth and the record is deemed closed

as of May 28, 1999.

The following are the facts derived from the record

before the Court:

On October 2, 1998, Gregory Witman, age 13, was found

dead in his home at 9 Albright Court in New Freedom,

Pennsylvania. His brother Zachary Witman, the Defendant who

was 15 years, 5 months of age at the time of Gregory’s death,

called 911 regarding the incident. The Defendant advised the

911 operator that he was home sick and had been sleeping

upstairs. He heard a noise which he described as being “like a

rustling around.” He then came downstairs and saw his brother

in the back room. Gregory’s throat was cut and was covered

with blood. Wher *he 911 operator asked whether the Defendant

App. 2

thought somebody else did this to Gregory, the Defendant

advised that “the two doors are open in the back. One of them is

bloody like, like someone grabbed it. It’s like cracked too, but

nothing's on that one. | don’t know”, and that “the three doors,

the three doors in the back of the house are cracked- - -.” Upon

advise by the Defendant that his brother was apparently propped

on his back against the washing machine, the 911 operator

requested the Defendant “to move him a little, so (he) can get

him flat on this back-.” The Defendant told the operator “Not

without touching like all that— it’s all bloody.” Upon moving his

brother the Defendant described the severity of the neck wound

to the 911 operator and asked leave to open the garage door for

the emergency personnel because his brother was near the garage

door.

Police personnel arrived soon after the emergency

personnel. The Defendant made somewhat similar statements to

both the EMT’s and the police. Officer Siggins spoke briefly

with the Defendant, and testified regarding that conversation as

follows:

He [the defendant] at first just said he had to call

his mom, he had to call his mom. I requested —I

got some information from him, his name, why

we were there. He said that he was home

sleeping. He left a key in the door for his brother

to get home. He heard a thud downstairs like

something was getting thrown against the wall,

came downstairs, found his brother, and called

911. N.T. 2/18/99 at 17.

Chief Childs testified concerning the Defendant’s statement as

follows:

At this point he told me he [the defendant] was

upstairs sleeping. He heard the front door open,

heard the front door close. He heard what

App. 3

appeared to be a struggle. And the whole time

he’s talking to me and relaying this, his voice was

elevating, lowering, quivering. And each time he

would talk I would have to ask him to calm down

and try to speak softly and more clear so I could

understand what he was saying.

He then said he heard what appeared to be a

struggle. He came downstairs, observed blood on

the floor of the hallway, went out into the kitchen

and found his brother laying on the floor. I then

asked him did he see anyone or hear anything.

He said no, and all he kept saying at that point

that his brother was suffering, just suffering, just

suffering and repeatedly saying that.

He started to become physically upset again

where his voice was screaming. He asked to call

his mother. He was worried about his dad. |

reassured him that we would take care of

contacting his parents, and then he looked at me

and said, would you please call my mother.

I said I would call his mother. How do | get in

touch with her? He then told me that her phone

number is on the refrigerator door on a piece of

paper.

N.T. 2/18/99 at 71-72.

The police and EMT’s described the Defendant’s

hyperventilation and excitement. The Defendant was taken to

the York Hospital for treatment.

Detective Clancy of the District Attorney’s office arrived

at the hospital between 5:15 and 5:30 p.m. N.T. 3/31/99 at 85.

Beginning at approxwnately 5:45, Detective Clancy spoke with

the Defendant for fifteen to twenty minutes. N.T. 3/31/99 at 86-

App. 4

87. He introduced himself and told the Defendant that he was

safe. Detective Clancy began the conversation by talking about

soccer and sports. N.T. 3/31/99 at 86. According to the

Detective, the Defendant indicated that he "had been home sick

from school and that he had stayed in his room, or he had been

in his bed all day and that he had heard noises and he thought it

was his brother coming home from schooi. He had been asleep,

and that he came down to check on the noise and he saw blood

at the front door, and that he found his brother in the laundry

room.” N.T. 3/31/99 at 87.

Follow-up investigation by police, disclosed at the

preliminary hearing, revealed that Gregory Witman had attended

school on October 2, 1998 and alighted from the school bus at

approximately 3:05 p.m. or 3:06 p.m. at which time he was seen

walking toward his house. No testimony was offered at any of

the hearings as to the length of time an average person would

ordinarily take to walk from the bus stop to the victim’s house on

Albright Circle, which was apparently about a block and a half

away. The Court takes judicial notice based upon the

descriptions offered that the house of the Defendant and victim

is located in a residential community which is middle to upper

middle class in rural but fast developing Southern York County.

The 911 operator testified at the preliminary hearing that the call

to 911 was received at 3:17 p.m. and 31 seconds. The call was

transferred to the Southern Regional Police Dispatcher at 3:17

p.m. and 43—45 seconds. The dispatcher finished speaking with

the Defendant at 3:24 p.m. and 59 seconds when it was known

that responders to the call had arrived. Fire and Emergency

personne] arrived first. The first police officer arrived at the

Albright Circle address at3:25 p.m.

Police discerned no evidence of force entry into the

household, nor were there any indicators of a burglary. Further

processing of the crime scene, subsequent to the arrival of the

police, disclosed a bloody knife and gloves buried under a pine

tree near the house in a four-inch deep hole. These items were

App. 5

apparently found as a result of tracing a path alleged to be

discernable through the use of Luminol, a chemical compound

which luminates blood-based substances in the dark. We

perceive it is the contention of Commonwealth that the

illuminated foot path (through Luminol) did not extend beyond

the immediate boundaries of the residence but returned into the

household. Zachary Witman’s father later requested the police

to revisit the household to point out screens which had been cut

at Gregory Witman’s room. N.T. 3/31/99 at pp. 284-285.

Weare further apprized that the Defendant has essentially

repeated his description of the events of October 2, 1999 to

Robert L. Sadoff, M.D., the defense forensic psychiatrist who

evaluated him for purposes of the within proceeding.

To determine whether the Defendant should be tried as a

juvenile or as an adult, the Court must look to the following

provisions of Title 42 of the Pennsylvania Statutes:

Section 6322. Transfer from criminal proceedings

(a) General rule.-Except as provided in >75 .C.S.

§ 6303 (relating to rights and liabilities of

minors) or in the event the child is charged with

murder of any of the offenses excluded by

paragraph (2)(ii) or (iii) of the definition of

“delinquent act” in section 6302 (relating to

definitions) or has been found guilty in a criminal

proceeding, if it appears to the court in a criminal

proceeding that the defendant is a child, this

chapter shall immediately become applicable, and

the court shall forthwith halt further criminal

proceedings, and, where appropriate, transfer the

case to the division or a judge of the court

assigned to conduct juvenile hearings, together

with a copy of the accusatory pieading and other

papers, documents, and transcripts of testimony

App. 6

relating to the case. If it appears to the court in a

criminal proceeding charging murder or any of

the offenses excluded by paragraph (2)(ii) or (iii)

of the definition of “delinquent act” in section

6302, that the defendant is a child, the case may

similarly be transferred and the provisions of this

chapter applied. In determining whether to

transfer a case charging murder or any of the

offenses excluded from the definition of

“delinquent act” in section 602, the child shall be

required to establish by a preponderance of the

evidence that the transfer will serve the public

interest. In determining whether the child has so

established that the transfer will serve the public

interest, the court shall consider the factors

contained in section 6355(a)(4)(iii) (relating to

transfer to criminal! proceedings).

(b) Order.—If the court finds that the child has met

the burden under subsection (a), the court shall

make findings of fact, including specific

references to the evidence, and conclusions of

law in support of the transfer order. If the court

does not make its finding within 20 days of the

hearing on the petition to transfer the case, the

defendant’s petition to transfer the case shall be

denied by operation of law.

(C) Expedited review of transfer orders.—The

transfer order shall be subject to the same

expedited review applicable to orders granting or

denying release or modifying the conditions of

release prior to sentence, as provided in > Rule

1762 of the Pennsylvania Rules of Appellate

Procedure.

App. 7

(d) Effect of transfer order.—Where review of the

transfer order is not sought or where the transfer

order is upheld the defendant shall be taken

forthwith to the probation officer or to a place of

detention designated by the court or released to

the custody of his parent, guardian, custodian, or

other person legally responsible for him, to be

brought before the court at a time to be

designated. The accusatory pleading may serve

in lieu of a petition otherwise required by this

chapter, unless the court directs the filing of a

petition.

(e) Transfer of convicted criminal cases.—If in a

criminal proceeding, the child is found guilty of

a crime classified as a misdemeanor, and the

child and the attorney for the Commonwealth

agree to transfer, the case may be transferred for

disposition to the division or a judge of the court

assigned to conduct juvenile hearings.

§ 6355. Transfer to criminal proceedings

(a) General rule.—After a petition has been filed

alleging delinquency based on conduct which is

designated a crime or public offense under the

laws, including local ordinances, of this

Commonwealth, the court before hearing the

petition on its merits may rule that this chapter is

not applicable and that the offense should be

prosecuted, and transfer the offense, where

appropriate, to the division or a judge of the court

assigned to conduct criminal proceedings, for

prosecution of the offense if all of the following

exist:

(1) The child was 14 or more years of age at the

time of the alleged conduct.

(2) A hearing on whether the transfer should be

made is held in conformity with this chapter.

(3) Notice in writing of the time, place, and

purpose of the hearing is given to the child and

his parents, guardian, or other custodian at least

three days before the hearing.

(4) The court finds:

(i) that there is a prima facie that the child

committed the delinquent act alleged;

(ii) that the delinquent act would be considered a

felony if committed by an adult;

(iii) that there are reasonable grounds to believe

that the public interest is served the transfer of

the case for criminal prosecution. In determining

whether the public interest can be served, the

court shall consider the following factors:

(A) the impact of the offense on the victim or

victims;

(B) the impact of the offense on the community;

(C) the threat of the safety of the public or any

individual posed by the child;

(D) the nature and circumstances of the offense

allegedly committed by the child;

(E) the degree of the child’s culpability;

(F) the adequacy and duration of dispositional

alternatives available under this chapter and in

the adult criminal justice system; and

(G) whether the child is amenable to treatment,

supervision or rehabilitation as a juvenile by

considering the following factors:

(I) age;

(II) mental capacity;

(IIL) maturity;

(IV) the degree of criminal sophistication

exhibited by the child;

(V) previous records, if any;

(V1) the nature and extent of any prior delinquent

history, including the success or failure of any

previous attempts by the juvenile court to

rehabilitate the child;

(VII) whether the child can be rehabilitated prior

to the expiration of the juvenile court

jurisdiction;

(VIII) probation or institutional reports, if any;

(IX) any other relevant factors; and

(iv) that there are reasonable grounds to believe

that the child is not committable to an institution

for the mentally retarded or mentally ill.

(b) Chapter inapplicable following transfer.—The

transfer terminates the applicability of this

chapter over the child with respect to the

delinquent acts alleged in the petition.

(c) Transfer at request of child.—The child may

request that the case be transferred for

prosecution in which event the court may order

this chapter not applicable.

(d) Effect of transfer from _ criminal

proceedings.-No hearing shall be conducted

where this chapter becomes applicable because of

a previous determination by the court in a

criminal proceeding.

(e) Murder and other excluded acts.-Where the

petition alleges conduct which if proven would

constitute murder, or any of the offenses

excluded by paragraph (2)ii) or (iii) of the

definition of “delinquent act” in section 6302

App. 10

(relating to definitions), the court shall require

the offense to be prosecuted under the criminal

law and procedures, except where the case has

been transferred pursuant to section 6322

(relating to transfer from criminal proceedings)

from the division or a judge of the court assigned

to conduct criminal proceedings.

(f) Transfer action interlocutory.-The decision of

the court to transfer or not to transfer the case

shall be interlocutory.

(g) Burden of proof.—The burden of establishing

by a preponderance of evidence that the public

interest is served by the transfer of the case to

criminal court and that a child is not amenable to

treatment, supervision or rehabilitation as a

juvenile shall rest with the Commonwealth unless

the following apply:

(1)(I) a deadly weapon as defined in 18 Pa.C.S. § ©

2301 (relating to definitions) was used and the

child was 14 years of age at the time of the

offense; or

(ii) the child was 15 years of age or older at the

time of the offense and was previously

adjudicated delinquent of a crime that would be

considered a felony is committed by an adult; and

(2) there is a prima facie case that the child

committed a delinquent act which, if committed

by an adult, would be classified as rape,

involuntary deviate sexual intercourse,

aggravated assault as defined in 18 Pa.C.S. §

2702(a)(1) or (2) (relating to aggravated assault),

robbery as defined in 18 Pa.C.S. § 3701(a)(1\(D,

(it) or (iii) (relating to robbery), robbery of motor

vehicle, aggravated indecent assault, kidnaping,

App. 11

voluntary manslaughter, an attempt, conspiracy

or solicitation to commit any of these crimes or

an attempt to commit murder as specified in

paragraph (2)(ii) of the definition of “delinquent

act” in section 6302.

If either of the preceding criteria are met, the

burden of establishing by a preponderance of the

evidence that retaining the case under this chapter

serves the public interest and that the child is

amendable to treatment, supervision or

rehabilitation as a juvenile shall rest with the

child.

Under the Juvenile Court Law, Act of June 2, 1933, P.L.

1433, as amended, 11 P.S. ss 243-268, there was no allowance

for transfer in cases of murder. Once a prima facie case of

felonious homicide was made out, the lower court judge had no

alternative but to hold the juvenile for further proceedings in the

criminal courts. Gaskins Case, 430 Pa. 298, 244 A.2d 662

(1968). See also Commonwealth v. Schmidt, 452 Pa. 185, 299

A.2d 254 (1973); Commonwealth v. James, 440 Pa. 205, 269

A.2d 898 (1970); Commonwealth v. Moore, 440 Pa. 86, 270

A.2d 200 (1970); Commonwealth v. McIntyre, 435 Pa. 96, 254

A.2d 639 (1969). In contrast under the Act of July 30, 1970 P.L.

673, the determination of whether the interests of state and

society require prosecution of murder on an indictment was

vested within the sound discretion of the Common Pleas Court.

Compare Act of June 2, 1933 P.L. 1433, amendments of June 15,

1939, P.L. 394, 11 P.S. s 256; Commonwealth v. Pouls, 198

Pa.Super. 595, 182 A.2d 261 (1962); Commonwealth ex rel.

Firmstone v. Myers, 184 Pa.Super. 1, 132 A.2d 707, cert. den.

355 U.S. 962, 78 S. Ct. 520, 2 L-Ed.2d 537 (1957); Trignani's

Case, 150 PaSuper. 491, 28 A.2d 702 (1942). See

Commonwealth v. Pyle, 462 Pa. 63; 342 A2d 107(1975)

App. 12

Under the 1970 Amendments where murder was charged,

treatment as a ‘youthful offender’ still did not arise as a matter of

right. Nevertheless, the fact that the legislature had widened the

avenue of juvenile treatment reflected a belief that there will be

instances where the young offender’s need for care, guidance and

control as a juvenile outweighs the state and society’s need to

apply legal restraint and discipline as an adult. The 1970

Amendment to the Juvenile Act, however, did not specifically

address the issue of how the court should proceed and by what

standards it should determine when in cases of murder transfer

of jurisdiction is warranted.

Murder had always been excluded from the jurisdiction

of the juvenile courts. See Act of July 12, 1913, P.L. 711,s 11

as amended, 17 P.S. s 694, Gaskins Case, 430 Pa. 298, 244 A.2d

662 (1968). See also /n re Mont, 75 Pa.Super. 150, 103 A.2d

460 (1954). The Pennsylvania Legislature having continued to

place murder, even where a young offender is involved, within

the original and exclusive jurisdiction of the adult court, the

assumption that the need for adult discipline and legal restraint

exists in cases of this heinous nature also was perpetuated. With

this in mind it became the juvenile’s burden under the Act of

1970 to show that he did not belong in the criminal court. In

other words, it is the youth who must prove that he belonged in

the juvenile se‘ting by showing his need and amenability to the

‘program of supervision, care and rehabilitation’ which he would

receive as a juvenile. In the event the evidence did not

affirmatively demonstrate that he is the kind of youth who would

benefit from the special features and programs of the juvenile

system and in the event no special reason exists for sparing the

youth from adult prosecution and punishment (as for instance,

evidence of mental illness or retardation) jurisdiction remained

within the criminal court system.

In the Pyle case, the appellant based his transfer request

on his need for psychiatric treatment. The evidence presented by

appellant tended to corroborate that he was ‘emotionally

App. 13

unstable,’ and that his problems were ‘deep-seated’ and ‘capable

of producing the most dangerous of consequences.’

Nevertheless, there was no indication that juvenile facilities

would assure rehabilitation commensurate with the serious

nature of appellant’s problem within the time limitations

available to such facilities. The only evidence on this issue came

from (Pyle ’s) appellant’s own expert, who indicated there was a

likelihood it would be necessary to continue treatment beyond

appellant’s minority and that a successful result would not be

accomplished within three years. It was on this basis that the

lower court concluded there were reasonable grounds to believe

appellant was not amenable to treatment, supervision, or

rehabilitation as a juvenile within existing juvenile facilities. In

Pyle, supra, the Supreme Court specifically concluded that once

having determined a prima facie case the Commonwealth did not

have to disprove a negative, i.e., that the burden remained on the

juvenile.

In 1995 the Pennyslvania legislature made it significantly

more difficult to transfer a juvenile charged with homicide to

juvenile court. Presently, a juvenile so charged must show not

only that he is amenable to treatment, but also that the transfer

will serve the public interest. §§6322, supra. Clearly, the

legislature mandates that the Court begin with the premise that

such cases ought to be tried in adult criminal court. It is only

when the Defendant can show otherwise by a preponderance of

the evidence that the case will be transferred to the juvenile

justice system.

The court noted above the factors that must be met under

§6355 before the case may be transferred to juvenile court. An

analysis of those factors follows below:

(A) The impact of the offense on the victim. We are

presented with the severest possible impact on the victim. The

crime has caused the death of Gregory Witman. This factor

weighs against transfer to juvenile court. We further note that

App. 14

the Witman family may be considered immediate foreseeable

victims of this offense. While we are unable to obtain a victim

impact statement from Gregory, the Witmans seeks transfer to

the Juvenile Court. This factor weighs in favor of transfer.

(B) The impact of the offense on the community. This

crime has clearly impacted the community in and around New

Freedom, Pennsylvania. The nature of the crime, as well as the

extensive coverage of it by the media, have led to a high degree

of concern in the community. The Court must be careful to

balance this factor against Canon 3 of the Code of Judicial

Conduct, which states in part, “A judge should . . . be unswayed

by partisan interest, public clamor, or fear of criticism.” Canon

3{A)(1). The Commonwealth introduced the minutes from a

New Freedom Borough Council meeting, in which it appeared

that the Council directed that a letter be sent to York County

Probation regarding concerns about the Defendant’s bail

conditions. The minutes refer to unconfirmed (and unsupported)

reports that the Defendant was seen in retail businesses and

“unattended” on his property. The granting of bail and the

conditions set thereto were issued by the Court according to the

mandates of the law predicated upon the record available to the

Court. The minutes further reference the difficulties in obtaining

information attendant to this Court’s gag order. The legal

restraint imposed on counsel and the investigators for the parties

was necessitated by the Court’s constitutional duty to protect the

rights of the accused and the integrity of the process. See

Addendum Opinion dated October 19, 1998. Thus, we are duty

bound by the Judicial Canons of ethics to not place significant

weight on the ordinance submitted by the Commonwealth. The

Commonwealth also introduced the testimony of Edward Tinder,

an elected councilman in the borough of New Freedom. Mr.

Tinder testified that the impact of the crime on the community

has been to engender fear, anger, and frustration. This is the kind

of public clamor by which the Court must not be swayed.

Nonetheless, it is clear that the crime for which the Defendant

has been charged has made a significant impact on the small

App. 15

rural community, and has raised genuine and legitimate concerns.

This factor favors that the Defendant be tried as an adult.

(C) The threat to the safety of the public or any individual

posed by the child. Dr. Robert Sadoff, a forensic psychiatrist

who testified on behalf of the Defendant, opined that if the

Defendant did, in fact, kill his brother, other members of the

community were not likely to be in danger. Dr. Sadoff testified

that people who kill once rarely kill a second time, and murders

that occur within a family usually end right there, so that people

in the community are not at risk. The Court has also received, by

way of stipulation, numerous letters from the Defendant’s family

members, friends, and other acquaintances. These letters attest

to the Defendant having no history of disciplinary problems or

trouble with authority. They also speak of the care and attention

provided to him by the members of his family. This

correspondence supports the view that the Defendant would not

likely pose a threat to the community. Conversely, Dr. Delfin, a

clinical psychologist who testified on behalf of the

Commonwealth, opined that the Defendant showed signs of

“rageful ideation, angry thoughts,” and difficulty with impulse

contro!. Dr. Larry Kotenberg, a forensic psychiatrist who

testified on behalf of the Commonwealth, was of the opinion that

the Defendant had difficulty managing his anger, and that the

_ Defendant’s conscience structure was immature of his age. Ifthe

Defendant did, in fact, kill his brother, it shows a leap from being

an ‘A’ student with no history of disciplinary problems, to

committing the most gruesome of crimes. Dr. Rotenberg

testified that this in and of itself is no reason for pause.

Normally, he testified, those who ultimately commit murder start

with smaller crimes which eventually escalate to more serious

offenses. While Dr. Rotenberg’s testimony was given in

response to questions about the Defendant’s amenability to

treatment, the answers impact equally on the issue of the

Defendant’s potential threat to the community. Likewise, Dr.

Sadoff conceded thet if, in fact, the Defendant committed the

crime, and continues to deny his involvement up to and even

App. 16

after a conviction, then his prognosis for rehabilitation is poor.

The Court emphasizes that at all times prior to a jury's ultimate

decision, the Defendant is clothed with the presumption of

innocence. However, for purposes of these decertification

proceedings, the Court must consider that the Commonwealth

has made out a prima facie case against the Defendant, and the

Court must weigh the statutory factors in that light. No

challenge has been made by way of omnibus pretrial application

or Habeus Corpus action. It is unclear what threat the Defendant

would pose to other members of the community. Again, the

burden is upon the Defendant to prove by a preponderance of the

evidence that transfer to juvenile court is in the public interest.

Given the nature of the testimony offered and the underlying

circumstances we conclude the Defendant has not sustained his

burden regarding this factor.'

(D) The nature and circumstances of the offenses

allegedly committed by the child. The allegations of the

Commonwealth portray a crime with a high degree of brutality

and sophistication. Dr. Sadoff attested to the physical difficulty

involved in nearly decapitating a person. If the allegations arc

true, the Defendant's actions would establish prima facie

evidence of premeditation in establishing an alibi, as well as

sophistication and calculation in terms of setting the scene to

appear as a third party break in; consummating the crime in a

short time period; concealing a weapon; and maintaining his

composure and consistency of his cover story in the face of

numerous interviews with authorities over time. The degree of

' The Court notes that testimony was offered by the

Commonwealth regarding the HARE Psychopathy Checklist,

which predicts, among other things, the dangerousness of an

individual. However, the Court places no value in this report in

the current context because it appears that this particular test is

only valid for examining prison inmates over the age of eighteen,

nor were appropriate protocols adhered to.

App. 17

sophistication allegedly involved and the heinous nature of the

crime are cause for concern and weigh against transfer to the

juvenile system.

(E) The degree of the child’s culpability. If the

Commonwealth's contentions are true, the Defendant is

completely and soiely culpable for the crime charged. That level

of culpability in a crime such as this favors that the Defendant

remain in adult criminal court.

F) er

; eee tae er cennenerneee < ar a fer this cl 1 in the adult criminal

justice system. The Defendant has recently turned sixteen. That

would allow for approximately five years of treatment if the trial

were held in the juvenile system immediately and a conviction

resulted. Dr. Sadoff testified that five years is an adequate

amount of time to rehabilitate the Defendant. He testified that,

regardless of whether the Defendant committed the crime or not,

treatment rather than punishment would be more appropriate,

and that the Defendant could be successfully treated in the

juvenile system within five years. The Commonwealth presented

testimony from Daniel Rhoads, the Chief Juvenile Probation

Officer in York County. Mr. Rhoads testified that five years is

an insufficient amount of time to address accountability issues

given the seriousness of the crime. Accountability is one of the

factors the Court must consider when evaluating the purposes of

the Juvenile Act. The Court also heard from Barry Johnson, the

Deputy Superintendent for Centralized Services at the State

Correctional Institution at Houtzdale. Mr. Johnson testified that

Houtzdale was established by legislation which was passed in

conjunction with the 1995 amendments to the Juvenile Act

concerning direct certification. Houtzdale has housing and

programming specifically designed to handle juveniles who had

been directly certified to adult court. Many of Houtzdale’s

programs are modeled after treatment centers for violent juvenile

offenders, and the juvenile population is separated from the adult

population. It appears from the testimony before the Court that

App. 18

there are dispositional alternatives in the adult criminal system

that can potentially address the same kinds of treatment issues

that are addressed by juvenile facilities, yet would offer resources

better suited to the kind of accountability required in a case such

as this. The Defendant has not shown by a preponderance of the

evidence that the adequacy and duration of disposition in the

juvenile justice system would be sufficient to deal with the

accountability concerns involved with this crime.

(G) Whether the child is amenable to treatment,

isi r rehabilitatio a juvenil ideri

following factors:

(1) Age. The Defendant was fifteen years old at the time

he was alleged to have committed the crime. The Defendant has

recently turned sixteen, which would leave approximately five

years of treatment.

(Il) Mental capacity. The Defendant was of at least

average intelligence and achieved academic honors at school.

Certainly the Defendant has the mental capability to be open to

treatment.

(II) Maturity. Again we have differing testimony

concerning the Defendant in this regard. Dr. Janofsky, a

psychiatrist who testified on behalf of the Defendant, stated that

the Defendant was immature for his age, stating that his

psychological development was that of a twelve or thirteen year

old. As noted above, Dr. Rotenberg also stated that the

Defendant's conscience structure was underdeveloped for his

age. Dr. Shapiro, a forensic psychologist who testified on behalf

of the Defendant, reported that the Defendant’s level of

psychological development was at the level of a five to nine year

old. However, another of the Defendant’s psychiatrist’s, Dr.

Sadoff, testified that the Defendant was mature for his age. The

Defendant’s parents also indicated that the Defendant was

mature and responsible, and was the one they depended on to

App. 19

make sure Gregory got to the places he needed to be at the

appropriate times. They indicated that the Defendant never

behaved disrespectfully or inappropriately to adults or other

authority figures, and never had conflicts with Gregory or other

children.

(IV) The d ( criminal sonbisticati hibited |

the child. As the Court stated earlier, if the Commonwealth's

allegations are true, the Defendant exhibited a disturbing degree

of sophistication and calculation in the perpetration of the crime.

(V) Previous records, if any. The Defendant has no

previous criminal record.

(VI) The nature and extent of any prior delinquent

history, including the success or failure of any previous attempts

by the juvenile court to rehabilitate the child/ The Defendant has

no prior history of delinquency.

(VIT) Whether the child can be rehabilitated prior to the

expiration of the juvenile court jurisdiction. Both Dr. Sadoff and

Dr. Janofsky testified that five years is a sufficient time period to

treat and rehabilitate the Defendant. Dr. Sadoff admitted that

predicting potential rehabilitation amounts to a “fairly good

educated guess.” As noted above, Mr. Rhoads testified that five

years is not sufficient to account for the issues of accountability

present in this case. Further, all of the expert witnesses agreed

that in the event that the Defendant is indeed guilty of the crime,

and continues to maintain his innocense after a conviction,

prognosis for rehabilitation is poor. Again, while the Court

continues to presume that the Defendant is innocent, for purposes

of this determination the Court must take into consideration that

the Commonwealth has made out a prima facie case against the

Defendant, and examine the relevant factors in that light. The

Court must consider whether rehabilitation is possible if, in fact,

the Defendant committed the crime. The burden to demonstrate

his amenability to treatment rests with the Defendant.

App. 20

(VIN) Probati atinticnsl omy Thesease

0 probation or institutional reports before the Court.

(IX) Any other relevant factors. All of the doctors who

have examined the Defendant agree that he exhibits no signs of

any mental disorders. The Court further notes that it is

uncontested that the Defendant is not committable to an

institution for the mentally retarded or mentally ill.

On the whole, it is a close question whether the

Defendant is amenable to treatment within the juvenile justice

system. While certain factors may indicate a receptiveness to

rehabilitation, the Court is particularly concerned with the level

of sophistication exhibited in the crime, as well as the need for

a longer period of accountability should the Commonwealth's

contentions ultimately be proven. The Court heard mixed

testimony regarding the Defendant’s maturity and openness to

treatment alternatives. Accordingly, since it is a close call, the

Defendant has not shown by a preponderance of the evidence

that he is amenable to treatment in juvenile court. While the

Court cannot accept the Commonwealth's contention that

acceptance of responsibility is a condition precedent for

treatment within the juvenile system, it is noteworthy that the

case law found by this Court suggests that in cases where

jurisdiction was transferred back to juvenile court, the affected

defendants did indeed accept responsibility for the crime. See

e.g. Commonwealth v. Johnson, 542 Pa. 568, 669 A.2d 315 (Pa.

1995), Commonwealth v. Norcross, C.R. No. 378-1997 (Pa. Ct.

Com. Pleas 1997), affirmed, No. 325 Pittsburgh 1998 (Pa.Super.

Pitt. Dist. 1998). In any event, the Defendant did not meet his

burden in this case. .

In conclusion, the Defendant has not proven by a

preponderance of the evidence that the transfer of his case to the

juvenile justice system would be in the public interest. The

brutal nature of the crime, combined with the sophistication

evidenced and the need for a greater accountability period than

App. 21

five years lead the Court to determine that a trial in adult court is

appropriate. Consequently, the relief requested by the Defendant

is Denied. An Order in keeping with this Opinion shall issue

forthwith.

BY THE COURT,

Ls/

JOHN C. UHLER, PRESIDENT JUDGE

App. 22

IN THE COURT OF COMMON PLEAS

OF YORK COUNTY, PENNSYLVANIA

COMMONWEALTH OF : No. 5411 CA 1998

PENNSYLVANIA

vs.

ZACHARY WITMAN

ORDER

AND NOW, this 10" day of June, 1999, upon

consideration of the Petition to Retain Juvenile Court

Jurisdiction Pursuant to 42 Pa.C.S.A. §6322(a), the relief

requested by the Defendant is hereby Denied. The Defendant

shall be tried as an adult.

BY THE COURT,

/s/

JOHN C. UHLER, PRESIDENT JUDGE

App. 23

J. A 36037/04

NON-PRECEDENTIAL DECISION - SEE SUPERIOR

COURT LO.P.65.37

COMMONWEALTH OF __ : IN THE SUPERIOR COURT

PENNSYLVANIA, : OF PENNSYLVANIA

Appellee

v.

ZACHARY P. WITMAN,

Appellant . “No. 1889 MDA 2004

Appeal from the Judgment of Sentence July 8, 2003

In the Court of Common Pleas of York County

Criminal Division at No. 541 CA 1998.

BEFORE: FORD ELLIOTT, JOYCE ANP BECK, JJ.

MEMORANDUM: FILED: January 11, 2005

In this appeal from the judgment of sentence for first

degree murder, appellant claims trial court error regarding the

admission exclusion and use of certain items of evidence.

Appellant also challenges the weight of the evidence, as well as

the order denying decertification to juvenile court. We affirm.

On the afternoon of October 2, 1998, thirteen-year-old

Gregory Witman got off the school bus and headed toward his

New Freedom Borough home approximately two blocks away.

He arrived at the residence at approximately 3:10 pm. Just seven

minutes later, Gregory's fifteen-year-old brother, appellant

Zachary Witman, called 911 to report that Gregory was lying

App. 24

J. A 36037/04

dead in their home, the victim of a knife attack. Gregory had

been stabbed in the back and about the head, chest and nevk over

60 times. His throat was cut, his windpipe and carotid artery

were severed and he was nearly decapitated.

On October 10, 1998, police arrested Zachary for the

murder of his younger brother. Trial was delayed for a period of

years for several reasons, including a request for dece-tification

to juvenile court and suppression issues that were litigated in the

trial and appellate courts. Trial commenced in May of 2003 and

the Commonwealth presented extensive circumstantial evidence

tying Zachary to the crime.

Zachary was home on the day of the murder because he

wasn’t feeling well. According to statements he made to

emergency personnel and police, Zachary spent much of the day

sleeping and was in his bedroom on the second floor when his

brother entered the house shortly after 3:00 PM. When Zachary

heard “roughhousing” of some kind, he went downstairs to

investigate and saw blood in the front hall. He discovered his

brother’s body in the laundry room in the back of the house and

called 911.

An emergency squad arrived at the Witman residence

and, ultimately, Zachary was taken to the hospital for

examination. A towel used by emergency personnel to wipe

Zachary’s hands while en route to the hospitai was found to

contain Gregory’s blood and soil consistent with the dirt in the

Witman’s yard. Emergency personnel transporting Zachary to

the hospital and medical personnel at the hospital noticed a cut

on Zachary’s hand that, according to one source, was “oozing”

when Zachary’s hands were washed. Zachary explained the

origin of the cut in different ways to different people. He told

one person that he was injured while playing with his dogs; he

told another that he must have been hurt when he “felt something

App. 25

J. A 36037/04

sharp” as he moved his brother’s body.

With the use of luminal, police observed footprints

leading from a back door of the home to some pine trees in the

rear of the yard. The knife that was used to accomplish the

murder and a pair of blood-soaked soccer gloves worn by the

perpetrator were found buried beneath these trees. The luminal-

enhanced prints reversed their direction at the pine trees and led

back into the Witman home.

The murder weapon was a pen knife with a Baltimore,

Maryland automobile parts company insignia on it, the type of

item used for promotional purposes. Evidence revealed that

Zachary had a collection of pen knives and that Ronald Witman,

the boys’ father, once owned an automobile parts store in the

Baltimore area. '

Deborah Calhoun, an expert in serology and bloodstain

pattern analysis, testified that Zachary was in “very close

proximity” to Gregory at the time he was being attacked because

“arterial spurting” and “impact spatter” stains were visible on

Zachary’s sweatshirt. In response to suggestions that Zachary’s

shirt was stained only as a result of his moving Gregory’s body

on the instruction of the 911 operator, Calhoun testified that

while a few of the stains “may be consistent with that scenario,”

the others simply were not, because they were the result of

active, pressured bleeding and could only have occurred at the

time of the attack. Calhoun’s testimony was supplemented by

' Zachary’s pen knife collection was seized by police and

one of the items in it, a knife displaying another automobile parts

company insignia, was shown to the jury to establish the

similarity between the knives Zachary owned and the knife used

to kill Gregory.

App. 26

J. A 36037/04

that of pathologist Sarah Funke, who testified that the nature of

Gregory’s injuries caused him to “bleed out” very quickly, such

that by the time the last cut to his neck was made, he had no

effective blood pressure that could have caused the spurting of

blood.

The jury found Zachary guilty of first degree murder and

he was sentenced to life in prison. He retained counsel, who

filed post-sentence motions, which were denied by the trial court.

We now address the issues raised in appellant’s timely appeal to

this court.

~ LACK OF MOTIVE EVIDENCE -—

Appellant's first claim of error concerns the trial court's

exclusion of certain evidence appellant characterizes as “lack of

motive” evidence. The record reflects that at trial, appellant

asked one of the Commonwealth witnesses whether she had ever

seen Zachary hurt Gregory. The Commonwealth objected to the

question as improper character evidence and the trial judge

sustained the objection on that basis. Later, when conducting

direct examination of Mr. and Mrs. Witman, counsel attempted

to elicit testimony regarding the boys’ love for one another.

Again, the attorney for the Cemmonwealth objected on the basis

that the testimony was impruper character evidence.

In his post-sentence motions, new counsel for Zachary

asserted that the trial court erred in refusing to admit evidence of

Zachary’s love of his brother as such evidence was inadmissible

to show lack of motive. Counsel appended to his motion

affidavits from thirty-six friends, relatives and acquaintances of

Zachary, all of whom commented on appellant's loving

relationship with his younger brother.

App. 27

J. A 36037/04

it went to lack of motive and so was probative of several

elements of the crime, including identity, intent and malice.’

However, the record establishes that trial counsel never offered

the evidence on this basis. First, nearly all of the thirty-six

witnesses who signed affidavits are “new” witnesses in that they

were not offered as witnesses at trial. Second, with respect to

those few witnesses who did testify and were asked to comment

on Zachary’s relationship with his brother, in not one instance

did trial counsel argue that their testimony was admissible to

show lack of motive. Rather, trial counsel elicited the testimony,

the Commonwealth objected on the basis of improper character

evidence, the trial judge ruled that the Commonwealth was

correct and trial counsel made no further argument for

admissibility.

While new counsel now asserts that the evidence was not

offered as character evidence, and, further, makes an argument

for why the evidence was admissible in the alternative as proof

of lack of motive, this claim simply was not preserved at trial.

As a result, it is waived.’

? We point out that the Commonwealth is not required to

prove motive. Commonwealth v. Keaton, 556 Pa. 442, 729

A.2d 529, 536 (1999).

> Even though present counsel raised the issue in post-

sentence motions, he did not present the claim in the context of

ineffective assistance of counsel. Nothing prevents appellant

from making such a claim in a subsequent petition for collateral

relief. Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726

(2003).

App. 28

J. A 36037/04

The Commonwealth asserts that even if the evidence had

been proffered at trial in this “new” context, it would have been

inadmissible as contrary to this court’s holding in

Commonwealth v. VanHorn, 797 A.2d 983 (Pa. Super. 2003).

In VanHorn, the appellant was convicted of committing sexual

offenses against his grandson. In his petition for collateral relief,

he argued that trial counsel was ineffective for failing to offer

testimony from relatives who would have commented on the

good relationship between grandfather and grandson. A panel of

this court held that such evidence was inadmissible because it

did not fall within the parameters of proper character evidence.

Specifically, the panel ruled that the relationship between the

defendant and the victim, as perceived by those relatives, did not

address the defendant’s “genera! reputation in the community”

and so would have been inadmissible as character evidence. Id.

at 988.

While it is true that the evidence at issue here is similar

to that in VanHorn, appellant concedes that the evidence does

not fit within the confines of character evidence and instead

claims that the evidence is admissible on its own for a reason

separate from and different than character evidence. Appellant

insists that the evidence is admissible to establish lack of motive.

VanHorn did not address such a claim; therefore, it is not

controlling and we cannot rely on it to find that the evidence

would have been inadmissible in any event.‘ Appellant's claim

was not preserved at trial and so we will not address its merits.

* We also decline to address the Commonwealth’s

assertion (and the trial court’s apparent conclusion) that the

evidence would be inadmissible in any event as improper lay

opinion and/or that the exclusion of the evidence was harmless

error because the Commonwealth conceded at trial that it could

not establish motive.

App. 29

J. A 36037/04

— Hearsay Evidence —

Appellant next argues that certain evidence offcred by

one of his witnesses should have been admitted for its truth and

the trial court’s contrary direction to the jury was erroneous. The

testimony at issue was that of Dr. Scott McCurley, the

emergency room physician who examined Zachary. Dr.

McCurley repeated to the jury that Zachary told him about the

incident, specifically, that Zachary was resting in his bedroom

when he heard Gregory come home from school. Zachary told

Dr. McCurley that he heard “a commotion” and went downstairs,

where he discovered his brother’s body. According to Dr.

McCurley, Zachary said he couldn’t believe what he saw.

In his brief, appellant asserts that these statements made

by Zachary, and presented to the jury via Dr. McCurley, were

admissible as substantive evidence under two independent

exceptions to the hearsay rule: excited utterance (Pa.R.Evid.

803(2)) and medical diagnosis and treatment (Pa.R.Evid.

803(4)). Contrary to those Rules, argues appellant, the trial

judge instructed the jurors that the statements were not to be

considered fir their truth. Appellant asserts that this was error

and that a new trial is warranted as a result.

As he did with his first issue, appellant makes a logical

and coherent argument in support of admitting Dr. McCurley’s

testimony as substantive evidence, particularly in the context of

the excited utterance exception to the hearsay rule. However, the

very same problems that were present in appellant's first issue

are also present here; namely, trial counsel simply did not

preserve this claim for appellate review. The record reflects that

trial counsel never asserted the medical diagnosis or treatment

exception set out in Rule 803(4). He made no argument on the

basis of this Rule and simply acquiesced when the trial court

App. 30

J. A 36037/04

instructed the jury on the limited use of the evidence.

Trial counsel argued that Zachary’s statements were

admissible via McCurley for the same reasons that statements of

the emergency rescue worker (a Commonwealth witness) were

admissible, that is, as admissions of a party opponent and excited

utterance. First, the statements could not be admissible as

admissions of a party opponent since they were being offered by

Zachary and Zachary’s behalf. Second, with regard to the

excited utterance exception, the record shows that trial counsel

failed to develop his claim, even though the trial judge prompted

him to do so in a sidebar discussion:

The Court: If [you claim] it’s an excited

utterance, then the issue is are these excited

utterances.

Trial Counsel: He [Dr. McCurley] said he

[Zachary] was hyperventilating, Judge.

The Court: What are you specifically attempting

to cull out here, Attorney Kelley, so have an

opportunity to —

Trial Counsel: We are gong to cut this Gordian

knot, my main concern with the doctor is his

injuries and physical examination. Let’s cut the

knot, and I'll hone in on that.

The Court: I wanted to let you know, | am willing

to focus on these issues, but if you —

Trial Counsel: We got enough out about what he

was like that day.

The Court: All right. That's all.

N.T. 5/16/03 at 1628-29 (emphasis supplied).

It appears that counsel abandoned his claim that the

statements constituted excited utterances; he did not pursue the

App. 31

J. A 36037/04

exception even though the court made it clear that he was

entitled to do so. As a result, new counsel’s compelling

arguments that the exception indeed applied are irrelevant as the

issue simply was not preserved at trial.’

— Jury Instructions —

Appellant next claims that the trial court erred in refusing

to instruct the jury that bloodstain pattern expert witness

Deborah Calhoun’s opinion testimony should be considered of

“low grade” value.

The low grade instruction concerns the weight to be given

an expert’s opinion and has been part of our jurisprudence for

over fifty years. It provides that “opinion evidence should be

classified as low grade when the expert testified, not from

personal observation, but when the expert expresses an opinion

in response to a hypothetical question, or where the expert’s

opinions, based on theoretical assumptions, is rebuttal by direct

evidence.” Commonwealth v. Hernandez, 615 A.2d 1337,

1344 (Pa. Super. 1992).

Initially, use of the instruction centered on opinions of lay

witnesses and psychiatric experts on the topic of sanity. See e.g.,

Commonwealth v. Woodhouse, 401 Pa. 242, 164 A.2d 98

(1960); Commonwealth v. Patskin, 375 Pa. 368, 100 A.2d 472

(1953); Commonwealth v. Heller, 369 Pa. 457, 87 A.2d 287

(1952). However, in recent decades, use of the instruction has

> As with the claim regarding lack of motive evidence,

nothing precludes appellant from asserting trial counsel’s

ineffectiveness with regard to the admission of Dr. McCurley’s

testimony on collateral review. Grant, supra.

App. 32

J. A 36037/04

been expanded to other forms of expert testimony.

In Commonwealth v. Thomas, 448 Pa. 42, 292 A.2d

352 (1972), our state supreme court considered whether the

opinion of a fibers expert should have been accompanied by a

low grade instruction. The Thomas court rejected application of

the instruction in that case, bul since Thomas, our courts have

considered application of the low grade instruction in a variety

of expert opinion scenarios. See e.g., Commonwealth v. Davis,

518 Pa. 77, 541 A.2d 315 (1988) (addressifig child

psychologist’s opinion on victims of child sexual abuse);

Commonwealth v. Jackson, 481 Pa. 426, 392 A.2d 1366(1978)

(addressing forensic pathologist’s opinion on cause of internal

injuries); Commonwealth v. Cooper, 411 A.2d 762 (Pa. Super.

1979) (addressing ballistics expert’s opinion cn test-firing);

Commonwealth v. Correa, 620 A.2d 497 (Pa. Super. 1993)

(addressing police officer’s opinion on drug packaging);

Commonwealth v. Hernandez, 615 A.2d 1337 (Pa. Super.

1992) (addressing child abuse expert’s opinion on consistency of

allegations as compared to physical findings).

Despite the breadth of cases discussing the low grade

instruction, in most instances the instruction has been deemed

inappropriate and so its application remains “constrained.”

Hernandez, supra at 1344. Indeed, the instruction rarely has

been held applicable. The very few cases that have held the

instruction was warranted include the case of an expert opinion

that had a purely hypothetical basis and the case of an expert

opinion that was directly rebutted by other evidence. See Davis,

supra (noting that expert psychologist never examined victim

and instead testified as to the general tendencies of all child

victims of sexual abuse); Kramer, supra (discussing opposing

points of view by parties’ respective pathology experts; one

stated that cause of injuries was clear from examination of the

body and the other stated that cause of injuries was not

App. 33

J. A 36037/04

anatomically apparent).

In this case, Deborah Calhoun gave extensive and

thorough testimony about her examination of appellant's

sweatshirt and the bloodstains that appeared on it. Calhoun

explained in detail the nature of each stain; she told the jury why

she believed appellant was very close to Gregory while he was

being stabbed. She described the multiple tests she conducted

and the conclusions she reached.

It is clear that the first basis for allowing the low grade

instruction is not present here; Ms. Calhoun’s opinion was based

on her examination of physical evidence, not on hypothetical

scenarios. Appellant concedes as much and instead argues that

the second basis for the instruction applies in this case; that is,

there was direct evidence offered to rebut Calhoun’s testimony.

Appellant claims that Ms. Calhoun’s testimony regarding

the origin of the bloodstains was rebutted by evidence that

appellant moved Gregory's body, which in turn caused the

bloodstains on the sweatshirt. This argument is flawed for two

reasons.

First, whether and to what extent appellant moved

Gregory’s body simply was not established by direct evidence.

Appellant did not testify at trial. Instead, the only thing that

could be considered evidence of appellant's contact with the

body was the 911 tap wherein appellant told the operator he had

moved the body. At best, this evidence only raised an inference

that appellant moved Gregory's body; it is not direct evidence of

same.

Second, even if we were to consider the 91 | tape as direct

evidence that appellant moved Gregory's body, it still would not

rise to the level of evidence that rebutted Ms. Calhoun’s

App. 34

J. A 36037/04

testimony. Ms. Calhoun’s opinion was that appellant’s

sweatshirt had “impact spatter” and “arterial spurting”

bloodstains, making appellant present at the time of the attack

and right next to the victim as he was stabbed. Calhoun

explained her opinion, and the principles upon which it was

based, in painstaking detail. On cross examination, she testified

that the stains were not consistent with appellant’s mere

movement (lifting and rolling over) of Gregory’s body.

Appellant’s counsel did not offer any evidence that the

bloodstains were the result of Zachary’s post-attack contact with

the victim’s body; counsel merely argued that inference to the

jury as part of his closing statement. Argument is not direct

rebuttal evidence. In this case, only evidence that offered an

opinion different from or contrary to Ms. Calhoun’s opinion

could be said to have rebutted directly her testimony. See

Kramer, supra (holding that low grade instruction was

warranted because one expert pathologist testified that the cause

of injuries was clear from examination of the body and the other

expert pathologist testified that the cause of injuries was not

apparent from examination of the body). See also Hernandez,

supra (holding that low grade instruction not warranted where

Commonwealth’s expert’s opinion was not rebutted by other

expert testimony or by the physical evidence); Jackson, supra

(finding that absence of direct evidence in conflict with

Commonwealth’s pathology expert precluded low grade

instruction); Thomas, supra (noting that low grade instruction

inappropriate as defense expert did not contradict

Commonwealth's expert).

In light of the relevant case law, as well as the record in

this case, we conclude that Ms. Calhoun’s testimony did not

merit the classification of “low grade” and so the trial court did

App. 35

J. A 36037/04

not err in refusing to give such an instruction to the jury.°

~ Decertification —

Appellant next challenges the trial court’s order denying

his request for a transfer from criminal court to juvenile court.

When a juvenile is accused of murder, his conduct is not

considered a delinquent act and he must face charges in criminal

court. 42 Pa.C.S.A. § 6302. While a transfer to juvenile court

is possible, treatment in the juvenile system does not arise as a

matter of right; instead, the juvenile bears the burden of

establishing that decertification to juvenile court is appropriate.

See 42 Pa.C.S.A. § 6322(a). Section 6322(a), in turn, directs a

court faced with a decertification request to consider the factors

set out in 42 Pa.C.S.A. § 6355(a)(4)(iii):

(A) The impact of the offense on the victim

or victims;

(B) The impact of the offense on the

community;

(C) The threat to the safety of the public or

any individual posed by the child;

(D) The nature and circumstances of the

offenses allegedly committed by the

child;

® We note that the trial judge gave the jurors a lengthy

instruction regarding Ms. Calhoun’s testimony, cautioning them

to evaluate Ms. Calhoun’s expertise and to ascertain what

weight, if any, was to be given her testimony. We find this

instruction adequately, accurately, and clearly presented the

relevant law to the jury and was sufficient to guide the jurors in

their deliberations. Commonwealth v. Hamilton, 766 A.2d 874

(Pa. Super. 2001).

App. 36

J. A 36037/04

(E) The degree of the child’s culpability;

(F) The adequacy and duration of

dispositional alternatives available under

this chapter and in the adult criminal

justice system; and

(G) Whether the child is amenable to

treatment, supervision or rehabilitation as

a juvenile by considering the following

factors: (I) Age; (II) Mental capacity; (IN)

Maturity; (ITV) Degree of criminal

sophistication exhibited by the child; (V)

Previous records, if any; (VI) The nature

and extent of any prior delinquent history,

including the success or failure of any

previous attempts by the juvenile court to

rehabilitate the child; (VID) Whether the

child can be rehabilitated prior to the

expiration of the juvenile court

jurisdiction; (VIII) Probation or

institutional reports, if any; and (IX) any

other relevant factors:

42 Pa.C.S.A., § 6355(a)(4){iii).

The decision whether to transfer a murder case to the

juvenile court it left to the sound discretion of the hearing judge;

an abuse of that discretion will not be found upon “merely an

error of judgment , but must be {based on] a misapplication of

the law or an exercise of manifestly unreasonable judgment

based upon partiality, prejudice or ill will.” Commonwealth v.

Austin, 664 A.2d 597, 598-99 (Pa. Super. 1995). Here,

appellant’s single claim with respect to the denial of

decertification is that the court misapplied the law by relying on

an impermissible factor, namely, appellant’s failure to admit

culpability.

App. 37

J. A 36037/04

Appellant makes a forceful argument that a trial court

may not base its decertification decision on a juvenile’s refusal

to admit he committed the crime in question. Appellant reasons

that the exercise of one’s constitutional privilege against self-

incrimination should not dictate whether one is amenable to

treatment in the juvenile system. We agree. However, the record

does not establish that the trial court relied on this impermissible

factor in reaching its decision.

Appellant asserts that the trial court “repeatedly focused

on the failure of appellant to admit culpability” and that this

impermissible concern is “threaded through” the court's opinions

and findings of fact. In fact, the court twice mentioned

appellant's decision to maintain his innocence, once in reference

to a statement made by appellant’s expert and again in noting

several other cases where a juvenile accepted responsibility for —

the crime and decertification ultimately was granted. However,

in both instances, the trial court emphasized the fact that

appellant was presumed innocent. Indeed, the court underscored

appellant's right to such a presumption and explicitly rejected the

“Commonwealth's contention that acceptance of responsibility

is a condition precedent for treatment within the juvenile

system.” Trial Court Opinion 6/11/99 at 14.

We have review the entire twenty-four page opinion in

support of the trial court’s order denying decertification. It is

clear that the court, while admitting the question was a close one,

was troubled by several concerns, including the brutal nature of

the crime, the sophistication shown in its commission and the

need for an accountability period in excess of that available in

the juvenile system. The trial court, relying on experts from both

the defense and the prosecution, ultimately concluded that

appellant had not met his burden in establishing that his case

should be transferred to juvenile court. Although appellant

insists this decision was based on the fact that appellant had not

App. 38

J. A 36037/04

admitted his culpability, the record does not support appellant’s

claim. As a result, he is not entitled to relief.

— Weight —

Appeliant’s last claim is that the verdict was against the

weight of the evidence. When reviewing the trial court’s denial

of a new trial based on a weight of the evidence claim, we

determine whether the trial judge abused his discretion in finding

that the verdict did not shock the conscience. Commonwealth v.

Sullivan, 820 A.2d 795, 8C5 (Pa. Super. 2003). We can find no

abuse of discretion here. Although the evidence presented by the

Commonwealth, including extensive expert testimony, was

entirely circumstantial, it demonstrated that appellant was

responsible for the victim’s death and so the jury’s verdict was

not shocking. We find no abuse of discretion in the trial court’s

denial of appellant’s weight claim.

Because appellant’s claims were either not preserved at

time of trial or are without merit, we are compelled to affirm.

Judgment of sentence affirmed.

Judgment Entered.

Ls/

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

COMMONWEALTH OF ~ : No. 96 MAL 2005

PENNSYLVANIA,

Petition for Allowance

Respondent, - of Appeal from

the Order of the

v. Superior Court

ZACHARY P. WITMAN,

Petitioner

PER CURIAM

AND NOW, this 12" day of May 2005, the Petition for

Allowance of Appeal is hereby DENIED.

App. 40

Supreme Court of the United States

Office of the Clerk

Washington, D.C. 20543-0001

William K. Suter

Clerk of the Court

(202) 479-3011

July 14, 2005

Ms. Amy Adelson

Dershowitz, Eiger & Adelson, P.C.

220 Fifth Avenue, Suite 300

New York, NY 10001

Re: Zachary P. Witman

v. Pennsylvania

Application No. 0SA52

Dear Ms. Adelson:

The application for an extension of time within which to

file a petition for a writ of certiorari in the above-entitled case

has been presented to Justice Souter, who on July 14, 2005

extended the time to and including October 9, 2005.

This letter has been sent to those designated on the

attached notification list. ,

Sincerely,

William K. Suter, Clerk

By /s/

Jeffrey Atkins

Case Analyst

App. 41

No. 05-444 NOV - 7 205

siniesihenetsnitasaeaiisaiaieaiadie tals aiaane

In The

Supreme Court of the Anited States

J

ZACHARY WITMAN,

Petitioner,

vs.

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

°

On Petition For A Writ Of Certiorari

To The Superior Court Of Pennsylvania

SI

RESPONDENT'S BRIEF IN OPPOSITION

SJ

H. STANLEY REBERT

District Attorney

Counsel of Record

TimoTtuHy J. BARKER, Esq.

First Assistant District Attorney

YorK COUNTY DISTRICT

ATTORNEY'S OFFICE

York County Judicial Center

45 N. George Street

York, PA 17401

(717) 771-9600

—————[—[—[—[—[———oEOoEE———————————————————E—EeEEeE——eeeE=&_—_=

COCKLE LAW BRIEF PRINTING CO (800) 225.6964

OR CALL COLLECT (402) 342-2431

COUNTER-STATFEMENT OF

QUESTION PRESENTED

Does Petitioner raise a matter meriting review by this

Honorable Court when Petitioner's issue concerning the

trial court’s denial of Petitioner's motion te transfer his

charges of Murder of the First Degree to the jurisdiction of

the juvenile court is solely premised upon materia] mis-

statements of the opinions authored by the trial court and

the Pennsylvania Superior Court?

‘i

TABLE OF CONTENTS

Page

Counter-Statement of Question Presented................ i

po ae: ee

Statement of Jurisdiction..................cccccceceeeeeeeeeeeeees 1

Counter-Statement of the Case ...0...........ccccccccceeeeeeees 1

. Fe I vctescictieditaneeetinttiininibitinicanen 1

ee Ce i tectceerrteteensesiicinenes 2

Reason for Opposing the Writ of Certiorari............... $

This Honorable Court should not grant a writ of

certiorari to review Petitioner’s issue concerning

the trial court’s denial of Petitioner’s motion to

transfer his charges of Murder of the First De-

gree to the jurisdiction of the juvenile court, as

this issue is solely premised upon material mis-

statements of the opinions authored by the trial

court and the Pennsylvania Superior Court.......... 9

A. Discussion of the Opinion of the Trial Court.. 10

B. Discussion of the Opinion of the Superior

Court of Pennsylvania ...................cccccaneeeeeeees 16

iil

TABLE OF AUTHORITIES

STATUTES:

gf RS RR TR ee A 8 1

i 10, 11, 12, 13, 14

1

STATEMENT OF JURISDICTION

On May 12, 2005, the Pennsylvania Supreme Court

denied the petition for allowance of appeal filed by Peti-

tioner. Such an order constitutes a final order and invokes

the jurisdiction of this Court pursuant to 28 U.S.C. § 1257.

°

COUNTER-STATEMENT OF THE CASE

A. Procedural History

Petitioner, Zachary Witman, was charged on October

10, 1998, with Criminal Homicide for the murder of his 13

year old younger brother, Gregory Witman. Petitioner, who

was fifteen, was cherged as an adult with this murder, as

the Juvenile Act mandates that all crimes of murder must

be filed in the adult justice system. On May 7, 1999, and

May 13, 1999, the trial court held hearings on Petitioner’s

motion to have this case transferred to juvenile court. The

trial court denied this motion on June 10, 1999.

Additionally, Petitioner filed pretrial motions request-

ing the suppression of numerous items of evidence. The

subsequent order of the trial court granting in part and

denying in part Petitioner’s motion to suppress evidence

led to extensive pretrial appellate litigation. This appellate

review included the filing of a petition for writ of certiorari

by Petitioner to this Court, docketed at No. 00-1710, which

this Court denied.

On May 5, 2003, jury selection began for the trial of

Petitioner. The jury was selected from Montgomery County,

Pennsylvania, based upon a change of venire order entered

by the trial court with the agreement of the parties.

Following a two-week trial and lengthy deliberation by a

2

sequestered jury, the jury found Petitioner guilty of Mur-

der in the First Degree.

On July 8, 2003, the trial court sentenced Petitioner to

life imprisonment without parole. The trial court denied

Petitioner's post-sentence motions on November 3, 2003.

Upon consideration of a direct appeal by Petitioner, the

Superior Court of Pennsylvanie ruled against Petitioner

and affirmed the judgment of sentence. On May 12, 2005,

allowance of appeal filed by Petitioner. This petition

followed.

B. Statement of Facts

On October 2, 1998, Petitioner brutally slaughtered

and nearly decapitated his 13 year old brother, Gregory

Witman, in their residence after Gregory returned home

from school. An autopsy revealed 65 stab wounds to

Gregory, including a gaping wound across Gregory's neck

that sliced through his right external and internal jugular

veins, the right carotid artery, the trachea, the esophagus,

and the left external and internal jugular veins. The depth

of the wounds established that the blade used to inflict

these injuries was 1% inches long.

The Commonwealth concedes, as it did at trial, the

lack of a motive for Petitioner to commit such a heinous

and unspeakable crime against his brother. Contrary to

the assertions of Petitioner, who continues to mischarac-

terize the quantum and quality of the Commonwealth's

evidence, the forensic evidence and the evidence of oppor-

tunity overwhelmingly proved that Petitioner murdered

3

refuted Petitioner's claim that someone else committed

On October 2, 1998, Petitioner, who was fifteen when

he committed this murder, stayed home from school due to

a stomachache. Petitioner was the only member of his

family home during the murder of Gregory. Additionally,

Petitioner's neighbors did not notice anything unusual at

the Witman residence, nor did they see any unfamiliar

people in the neighborhood, around the time of the mur-

der

During the crime scene processing of Petitioner's

house with luminol, the police discovered a set of foot-

prints leading from the family room of the Witman resi-

dence to a patch of disturbed soil under a tree in the

backyard. The police found sports gloves caked with blood

and dirt, as well as a knife with a blade matching the size

of the one used to kill Gregory. The footprints then led

back into the residence. These footprints looked like a foot

without a shoe due to the absence of a tread pattern.

The knife used to murder Gregory possessed a yellow

handle with a NAPA City Motor Parts logo. The handle

also had a Baltimore, Maryland address and phone num-

ber inscribed on it. This knife was similar to those found

in Petitioner's knife collection in vis beuroom. In particu-

lar, Petitioner owned a knife with a red handle and an AP

Long-lasting Mufflers logo. This is significant because

Ronald Witman, Petitioner’s father, once owned The Pit

Stop, an auto parts store located in Baltimore, Maryland.

Promotional items, such as pen knives (similar to the

murder weapon) were frequently given to such stores by

distributors.

4

When police and emergency personnel first encoun-

tered Petitioner at his home after the murder, an EMT

noticed that Petitioner had a fresh cut on the inside of his

left ring finger. Petitioner initially stated that he had cut

his finger the day before. When the EMT stated that it

was a fresh cut, however, Petitioner changed his story and

claimed that he hit something sharp when he rolled

Gregory over, which was part of Petitioner’s story in

attempting to explain the significant amount and type of

blood on Petitioner's clothing. Petitioner changed his story

yet again when he told a doctor at York Hospital that he

sustained the cut while playing with his dogs.

Soil comparisons that were conducted on a pair of

white athletic socks worn by Petitioner during the murder,

the pair of gloves and knife found in the backyard, a white

towel used to wipe the cut left hand of Petitioner, a door

latch on the back screen door of Petitioner’s house, and

Petitioner’s bloodstained light blue sweatshirt that he

wore during the murder. These items were compared to a

sample of soil obtained from the area where police found

the gloves and knife. The white socks, the gloves, the

knife, the white towel, and a portion of the door latch

contained traces of soil consistent in color and features

with the soil sample where police found the gloves and

knife. Most notably, the presence of mica was detected in

the soil that was found on each of these items and in the

comparison sample. Especially significant is the soil on the

towel used by the EMT to clean the Petitioner’s hands in

the area of his fresh cut after the murder. Experts did not

find any trace of soil on the front, the back, the arms,

or the inside of his sweatshirt. This evidence directly

refuted Petitioner's claim that he wiped his hands on his

5

sweatshirt, causing the bloody swipe marks found on the

sweatshirt.

Despite Petitioner's contention that someone else

committed this crime, only interfamilial DNA was found at

the scene. Police recovered several hair fragments from

the scene: (1) hair fragment from the door molding; (2)

hair fragment from Gregory's right forearm; (3) hair

fragment from Gregory's neckline; (4) hair fragment from

Gregory's throat; and (5) four hair fragments from the

glove. An analysis of the mitochondrial DNA contained in

the hair fragments revealed that Petitioner, Gregory

Witman, and his parents, Amelia Sue and Ronald Witman,

were the possible source(s) of these hair fragments. More-

over, nuclear DNA analysis of the backpack, the clothing

from Petitioner and Gregory, the black right hand glove,

and the yellow-handled knife only revealed Gregory's

DNA.

The Commonwealth also presented the expert testi-

mony in serology and bloodstain pattern analysis. Among

the items submitted for this analysis were: a backpack, a

lanyard with attached key, a blue jacket, decorative silver

items, a tablecloth, carpet from the laundry room, clothing

from Petitioner and Gregory, blood lifts from the crime

scene, and photographs of the crime scene.

With the assistance of the serology and blood stain

pattern evidence, the Commonwealth was able to establish

how the murder occurred, including the rooms traveled by

Gregory and Petitioner during this vicious attack. More-

over, an analysis of the bloodstain patterns on Petitioner's

clothing definitively established Petitioner's role as the

murderer of his brother.

Next, Petitioner's sweatshirt contained numerous and

varied bloodstains from Gregory's blood. First, Petitioner's

sweatshirt contained a transfer pattern of bloody fingers,

consistent with injuries on Gregory's hands. Second, the

sweatshirt possessed hair swipes on the mid-chest and

abdominal areas, as well as a cast-off finger pattern on the

front. Third, the sweatshirt contained impact spatter on

the chest and abdominal areas and on the front of the

sleeves. This impact spatter in the torso area was larger

than the spatter found on the ends of the sleeves. The

front left shoulder area, however, was free of bloodstains.

Most significant was the bloodstain on the left arm of the

sweatshirt — the pattern was consistent with arterial

spurting.

This examination of the stains on sweatshirt enabled

the expert in serology and bloodstain pattern analysis to

conclude that Petitioner would have been in “very close

proximity” to Gregory while he inflicted the fatal injuries.

7

In particular, Petitioner's left arm would have necessarily

been close to the injury site in order ‘o receive the arterial

pulse that left this trademark stain. Furthermore, Greg-

ory’s bloodstains on Petitioner's sweatshirt were not

consistent with Petitioner merely lifting and rolling

Gregory over, as Petitioner asserted to the authorities.

The results of the forensic autopsy conducted on

Gregory supported the conclusion that Petitioner was in

very close proximity to Gregory when Petitioner severed

Gregory's right carotid artery. Because Petitioner severed

one main artery in Gregory, pulsatile bleeding occurred.

Due to the rapid loss of blood pressure that occurred, the

forensic pathologist concluded that Gregory, due to the

severity of his injuries, “bled out extremely quickly.” Such

rapid bleeding would have prevented~ Petitioner from

receiving the arterial pulse stain on his sweatshirt unless

he was present with Gregory when the artery was severed.

Moreover, this evidence directly contradicted Peti-

tioner’s claim that blood spurted onto him as he attempted

to move Gregory. Given the length of time between the

final injury and when Petitioner claimed he moved Greg-

ory, Gregory's blood pressure would have been too low for

spurt from Gregory through the final beats of his heart

after Petitioner severed Gregory's right carotid artery at

Gregory’s final resting place on the laundry room floor.

On May 7, 1999, and May 13, 1999, the trial court

held hearings on Petitioner’s motion to have this case

transferred to juvenile court. Both the Petitioner and the

Commenwealth presented extensive evidence for the trial

court’s consideration, including the testimony of experts on

behalf of each respective party. On June 10, 1999, the trial

8

court denied Petitioner’s request to transfer his case to the

jurisdiction of the juvenile court.

In this transfer opinion, the trial court based its

decision to deny Petitioner’s motion upon the brutality of

the crime, the sophistication with which the crime was

committed, and the need for a greater accountability

pericd. The trial court demonstrated a thorough and

methodical review of each consideration mandated by the

legislature concerning transfer petitions. The trial court

recognized that this crime had a great impact upon the

victim and the community within and surrounding where

the Witman’s lived. Petitioner’s App. 15-16. The trial court

emphasized that a high degree of brutality and sophistica-

tion existed in Gregory's murder. The trial court further

noted that “[i)f the allegations are true, the [Petitioner’s]

action would establish prima facie eviderce of premedita-

tion in establishing an alibi, as well as sophistication and

calculatioa in terms of setting the scene to appear as a

third party break in: consummating the crime in a short

time period; concealing a weapon; and maintaining his

composure and consistency of his cover story in the face of

numerous interviews with authorities over time.” Peti-

tioner’s App. 21. The trial court further held that Peti-

tioner failed to show by a preponderance of the evidence

that the juvenile justice system, which would have only

provided five years of supervision, was adequate in scope

and duration to accommodate the accountability issues

associated with this crime. Petitioner’s App. 19.

In litigating the transfer petition issue, the Common-

wealth in part urged the trial court to reject Petitioner’s

contention that he was amenable to treatment in the

juvenile justice system because Petitioner’s failure to

accept responsibility for Gregory's murder would render