Opinion
No. 937 EDA 2004.
Filed: March 31, 2005.
Appeal from the Judgment of Sentence entered March 25, 2004, in the Court of Common Pleas, Monroe County, No. 1519 Criminal 2002.
Before: STEVENS, KLEIN, JJ., and McEWEN, P.J.E.
¶ 1 Appellant, Teri Lynn Levanduski, brings this appeal from the judgment of sentence to serve a term of life imprisonment following her conviction by a jury of the charges of murder in the first degree, conspiracy, hindering apprehension, and solicitation. We are constrained to vacate the judgment of sentence and remand the case for a new trial.
¶ 2 The charges against appellant resulted from the homicide on November 27, 2002, of her common-law husband, Robert Sandt, who died as a result of seven .22 caliber gun shot wounds, including five to his head. The body of Mr. Sandt was found by Beverly Levanduski, the mother of appellant, who was also their next door neighbor. At the time of the gruesome discovery appellant was at her place of employment, where Beverly Levanduski called her to tell her of Mr. Sandt's death.
¶ 3 Appellant thereafter left work to return home. When she arrived at her house the police were present and were conducting an on-site investigation. The police would not allow appellant into her home but told her to wait in the next door home of her parents. The police obtained search warrants and during the search found, inter alia, a ripped-up five page handwritten note in the kitchen trash can. Subsequent investigation revealed that the note had been written by the victim, though the police could not determine the exact time it was written, and the substance of the note was that the victim was suspicious that appellant and her paramour, Leonard Fransen, were conspiring to murder him.
¶ 4 While still on-site, the police questioned appellant briefly, and then asked her to appear at the police station the next day for further questioning. On the following day, November 28, 2002, appellant went to the police station in the company of her parents. The interview of appellant was conducted in a separate room outside the presence of her parents. Police detectives spoke with appellant for more than two hours (1:50 p.m. to 4:20 p.m.) before they gave her Miranda warnings. She thereafter continued to speak with the police and provided a written statement that implicated her in the murder of Mr. Sandt. As summarized by the trial judge:
[She] orally waived her right to an attorney and agreed to speak with the detectives. The detectives Mirandized defendant at that time due to inconsistencies in her statements. At first, defendant denied having an affair with Leonard Fransen (co-defendant). She later admitted to such an affair, and to driving Leonard Fransen to the end of her driveway shortly before the victim was murdered. Defendant further stated that following Fransen's departure from the house, she drove him away from the scene and dropped him off on the side of a road. Subsequent to defendant being read the Miranda warning, she amended her statement to include that she heard a scuffle inside the house, then heard a gunshot, then saw Leonard Fransen exit the house.
At approximately 5:12 p.m., defendant completed a written statement of her version of the events of November 27, 2002. The detectives reviewed the statement and found that some of the information they had elicited during the oral interview was missing. Defendant agreed to a taped interview, which was concluded at 6:13 p.m.
Slip Opinion on Omnibus Pre-Trial Motion, June 16, 2003, Vican, P.J., pp. 3-4. Based upon her statements and other evidence developed during the investigation, appellant and Leonard Fransen were arrested and charged with the murder of Robert Sandt.
¶ 5 Prior to trial, appellant filed (1) a motion to suppress her statements to the police, and (2) a motion in limine to preclude the admission into evidence of the letter that was discovered in the trash can during the initial police investigation. The motion to suppress was denied. The motion in limine was granted in part and denied in part, since the judge ruled that the content of the letter could not be admitted to prove the truth of the matter asserted therein, but could be admitted as evidence of motive and to show the relationship of the co-defendants. A jury trial ensued, in which counsel for appellant argued that the death of Mr. Sandt was the unfortunate result of an argument between him and her paramour. At the conclusion of the trial appellant was found guilty of, inter alia, murder in the first degree, and sentenced to serve a term of life imprisonment. This appeal followed.
Appellant and her co-defendant were tried separately.
Appellant did not take the stand and offer testimony.
¶ 6 Appellant, in the brief she has filed with this Court, presents the following questions to be resolved on appeal:
We have re-stated the questions for review in order to comply with the mandate that such questions be stated "in the briefest and most general terms, without names, dates, amounts or particulars of any kind." Pa.R.A.P. 2116(a).
Whether the trial court committed reversible error by allowing the Commonwealth to introduce into evidence a letter written by the decedent?
Whether the trial court erred in refusing to suppress statements, and the fruits thereof, that were obtained by the police from appellant while she was in custody?
Whether the trial court committed reversible error by allowing the Commonwealth to introduce into evidence certain photographs of appellant and of the co-defendant?
¶ 7 Appellant first claims that the trial court erred in its ruling on her motion in limine. Appellant in that motion sought to preclude the admission into evidence of the victim's letter, which was retrieved from the kitchen trash can, and in which he describes his suspicions regarding appellant's intentions toward him. The law and standards governing our review of this issue provide:
"A motion in limine is a procedure for obtaining a ruling on the admissibility of evidence prior to or during trial, but before the evidence has been offered." Commonwealth v. Johnson, 582 A.2d 336, 337 (Pa.Super. 1990), aff'd, 534 Pa. 51, 626 A.2d 514 (1993). Such a ruling is similar to that upon a motion to suppress evidence. Commonwealth v. Gordon, 543 Pa. 513, 517, 673 A.2d 866, 868 (1996). . . . [W]e apply an evidentiary abuse of discretion standard to the denial of a motion in limine. Commonwealth v. Chmiel, 558 Pa. 478, 493, 738 A.2d 406, 414 (1999) [ cert. denied, 528 U.S. 1131, 120 S.Ct. 970, 145 L.Ed.2d 841 (2000)].
Questions concerning the admissibility of evidence lie within the sound discretion of the trial court, and we will not reverse the court's decision on such a question absent a clear abuse of discretion. Commonwealth v. Weber, 549 Pa. 430, 436, 701 A.2d 531, 534 (1997).
Commonwealth v. Zugay, 745 A.2d 639, 644-645 (Pa.Super. 2000), appeal denied, 568 Pa. 662, 795 A.2d 976 (2000). An abuse of discretion has been defined as
the overriding or misapplication of law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence or the record.
Commonwealth v. Viera, 659 A.2d 1024, 1028 (Pa.Super. 1995), appeal denied, 543 Pa. 713, 672 A.2d 307 (1996), citing Commonwealth v. Kubiac, 550 A.2d 219, 223 (Pa.Super. 1988), appeal denied, 522 Pa. 611, 562 A.2d 496 (1989).
¶ 8 The letter in question was lengthy, consisting of five handwritten pages, and described how the victim had discovered that appellant was having a sexual relationship with the co-defendant, and further stated:
I am writing this letter to tell someone that in [a] letter she said that some how [sic] they had to get rid of me so they could be together.
* * * *
So Saturday I went to get my 22 pistol and it was gone. . . . So I am thinking that maybe she [appellant] gave him [co-defendant] the gun to kill me with. That way no one would think some one killed me, that I committed suicide. Seeing it was my gun.
So that['s] why I am writing this letter in case I should end up shot by a 22 pistol. So nobody would think it was nothing but a suicide. . . .
Commonwealth Exhibit Nos. 28 A-B. In deciding that this letter could be admitted for a limited purpose the trial judge ruled in relevant part:
Defendant's [appellant's] Motion In Limine to exclude the letter from the victim is GRANTED to the extent that it may not be used as evidence of defendant's guilt; however, the letter may be used as evidence for other purposes.
Order of June 16, 2003, Vican, P.J. The trial judge, in support of his ruling, offered the following rationale:
The letter written by the victim, which implicated defendants Levanduski and Fransen, meets this definition [of hearsay]. It was not made by the victim through testimony at a trial or hearing and it is being offered to prove that defendant Levanduski conspired to kill him. Because the letter does not fall within any exception to the hearsay rule, it is inadmissible at trial prove defendant Levanduski's involvement in the murder of the victim.
However, "when an extrajudicial statement is offered for a purpose other than proving the truth of its contents, it is not hearsay and is not excludable under the hearsay rule." Commonwealth v. Puksar, 740 A.2d 219, 225 (Pa. 1999), citing Commonwealth v. Griffin, 515 A.2d 865, 870 (Pa. 1986). Extrajudicial statements are "admissible to establish ill-will or motive where they are not being offered for the truth of the matter contained therein." Id., citing Commonwealth v. Brown, 648 A.2d 1177, 1182 (Pa. 1994). Therefore, we conclude that the letter written by the victim is admissible as evidence of a prior relationship between defendants Levanduski and Fransen. Furthermore, this letter is admissible as evidence of Defendant Levanduski's motive to cause harm to the victim based on her relationship with another man and her allegations of the victim's abusive conduct towards her.
Slip Opinion, June 16, 2003, Vican, P.J., pp. 17-18.
¶ 9 We are unable, however, to accept this rationale, since the conclusion is inescapable that the contents of the letter, which provided (1) evidence of the relationship between the co-defendants, (2) evidence of appellant's motive, and (3) a link to the possible murder weapon, depended for its relevance upon the jury believing the content of the letter — in other words, the truth of the matter asserted. This situation is analogous to that addressed by the Pennsylvania Supreme Court in Commonwealth v. Thornton, 494 Pa. 260, 431 A.2d 248 (1981), where the Commonwealth sought to present to the jury the victim's statement that the defendant was "after him" so as to demonstrate that the victim feared the defendant. The Supreme Court concluded that the victim's statement was hearsay, holding:
It is true that the declaration perhaps tends to establish that the victim, Moore, was fearful of the Thorntons. However, the victim's state of mind was not a matter in issue in the case. It was appellant's state of mind, not that of the victim, which was material to establish the degree of guilt, if any, on the charge of criminal homicide. Cf. Commonwealth v. Stewart, supra (evidence of gang activity relevant to defendant's state of mind).
Only when the declaration is considered for the truth of the matter asserted, that appellant and his brother "were after" the victim, does the declaration become relevant, that is, both material to and probative of appellant's intent to kill. However, when considered for its substantive truth, the declaration, although relevant, is incompetent and hence inadmissible because it is hearsay not within any exception. Thus appellant's objection to admission of the declaration should have been sustained and the testimony excluded.
Commonwealth v. Thornton, supra, 494 Pa. at 265, 431 A.2d at 251. Similarly, in the present case, despite the thoughtful analysis of the trial judge, the content of the letter was only relevant for the truth of what it described, and hence was within the hearsay rule restrictions.
The rule against hearsay is a rule of exclusion, i.e., hearsay is generally not admissible. As our Supreme Court has recited:
A hearsay statement lacks guarantees of trustworthiness fundamental to the Anglo-American system of jurisprudence. Perhaps such a statement's most telling deficiency is it cannot be tested by cross-examination. According to Dean Wigmore, cross-examination is "beyond any doubt the greatest legal engine ever invented for the discovery of truth." 5 Wigmore, supra, § 1367. Nor is the declarant under oath when the out of court statement is uttered. This court has long recognized the oath requirement as a further assurance of reliability.
Heddings v. Steele, 514 Pa. 569, 573, 526 A.2d 349, 351 (1987).
¶ 10 This is not the end of our inquiry, however, since as an appellate forum, we may affirm the evidentiary ruling of the trial court if there is a basis in the record to do so. Commonwealth v. Harper, 611 A.2d 1211, 1213 n. 1 (Pa.Super. 1992). Therefore, we proceed to examine the question of whether the content of the letter was admissible because it was within a recognized exception to the hearsay rule. See: Heddings v. Steele, 514 Pa. 569, 574, 526 A.2d 349, 352 (1987).
¶ 11 The Commonwealth in its brief argues that the content of the letter was admissible under one of two exceptions: Rule 803(3), the then existing mental, emotional, or physical condition exception, or Rule 804(b)(6), the forfeiture by wrongdoing exception.
The Commonwealth also sought to justify admission of the content of this statement on grounds of " res gestae", which is not, under the Pennsylvania Rules of Evidence, an exception to the bar against hearsay. Since the adoption in 1998 of a "comprehensive code of evidence," the only applicable exceptions are those specified therein, unless otherwise provided for by the Pennsylvania Supreme Court or General Assembly. See: Pa.R.E. 101, Comment; 802, Comment. See also: Wigmore on Evidence, § 1767, p. 255 (1976) ("The phrase res gestae has long been not only entirely useless, but even positively harmful. It is useless, because every rule of evidence to which it has ever been applied exists as a part of some other well-established principle and can be explained in the terms of that principle. It is harmful, because by its ambiguity it invites the confusion of one rule with another and thus creates uncertainty as to the limitations of both."). Moreover, the case relied upon by the Commonwealth, Commonwealth v. Paddy, 569 Pa. 47, 800 A.2d 294 (2002), reviewed the concept of res gestae as part of a discussion upon the admissibility of the prior criminal acts of a witness, see: Pa.R.E. 404(b), and specifically held that such evidence would nonetheless be inadmissible "if it violates a rule of competency, such as the hearsay rule." Commonwealth v. Paddy, supra, 569 Pa. at 70, 800 A.2d at 308.
¶ 12 Rule 803(3) defines the state of mind exception as applicable to "statement[s] of the declarant's then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health." Pa.R.E. 803(3) (emphasis supplied). The content of the letter in this case was clearly not being offered to establish the declarant's "intent, plan or motive" as described in Rule 803(3), but was introduced as evidence of the "intent, plan or motive" of another, specifically appellant. See: Commonwealth v. Laich, 566 Pa. 19, 27-28, 777 A.2d 1057, 1061-1062 (2001) (Supreme Court held that the state of mind of the declarant victim regarding defendant's intent to kill her was inadmissible). See also: Commonwealth v. Thornton, supra, (victim's statement that defendant and his brother were "after him" was held to be inadmissible); Ohlbaum on The Pennsylvania Rules of Evidence, § 803.3[13], p. 638 (2004-2005 Ed.) ("[A] witness's statement as to her fear or intent or her explanation for the defendant's behavior may well express her state of mind but is inadmissible to establish the defendant's state of mind or motive unless the statements were communicated to the defendant."). Compare: Commonwealth v. Sneeringer, 668 A.2d 1167 (Pa.Super. 1995), appeal denied, 545 Pa. 651, 680 A.2d 1161 (1996) (victim's statement of intent to end relationship was admissible). Thus, the handwritten letter of the victim did not fit within the Rule 803(3) exception, and we will turn our attention to whether the letter was admissible under the Rule 804(b)(6) exception.
Our learned colleague, Judge Correale Stevens, relies in dissent upon Commonwealth v. Chandler, 554 Pa. 401, 721 A.2d 1040 (1998), and Commonwealth v. Sneeringer, 668 A.2d 1167 (Pa.Super. 1995), appeal denied, 545 Pa. 651, 680 A.2d 1161 (1996) in support of his argument that the letter of the victim should have been admitted. However, in those cases, the statements of the victims were limited to the victim's negative opinion of the defendant ( Chandler) or the victim's intention to carry out an action ( Sneeringer), as distinguished from the present case where the statement expresses an opinion about the likelihood of future conduct by the defendant. Moreover, we feel constrained by the later decision of the Pennsylvania Supreme Court in Commonwealth v. Laich, 566 Pa. 19, 777 A.2d 1057 (2001), to conclude that the content of the proffered letter does not satisfy the "state of mind" exception of Pa.R.E. 803(3).
¶ 13 That relatively new exception, known as the "forfeiture" exception, is described in the Rule as applying to "statement[s] offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." Pa.R.E. 804(b)(6).
The recent ruling of the United States Supreme Court in the matter of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which was specifically addressed by the trial judge in his Supplemental Opinion, bears comment. In Crawford, the Court specifically overruled its prior decision in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), and held that when "testimonial statements" are at issue, the Confrontation Clause of the United States Constitution precludes the use of hearsay except in the most limited of circumstances. This new rule, however, does not apply to non-testimonial statements, and although the Supreme Court did not specifically define the terms testimonial and non-testimonial, it made clear that when it referred to "testimonial" statements it was referring to statements made by a declarant who at the time of making the statement would "reasonably expect that the statement might be used in future judicial proceedings." United States v. Saget, 377 F.3d 223, 228 (2nd Cir. 2004). Thus, we agree with the astute analysis provided by the distinguished President Judge Ronald E. Vican that the letter at issue here was "non-testimonial in nature because it was not given under oath or affirmation at trial or in an affidavit or deposition . . . [and is not] barred by Crawford, rather governed by the Pennsylvania Rules of Evidence. . . ." Slip Opinion, June 2, 2004, Vican, P.J., p. 3.
¶ 14 This Court, in Commonwealth v. Santiago, 822 A.2d 716, 731 (Pa.Super. 2003), appeal denied, 577 Pa. 679, 843 A.2d 1237 (2004), cert. denied, ___ U.S. ___, 124 S.Ct. 2916, 159 L.Ed.2d 820 (2004), imposed a strict interpretation on the rule when we held that it required a finding that the party against whom the statement is offered must have "acted wrongfully and that the wrongful conduct was intended to, and did in fact, procure the unavailability of the declarant as a witness." Id. at 731 (emphasis supplied). This view is consistent with that expressed by the Pennsylvania Supreme Court in Commonwealth v. Laich, supra. Consequently, since there is no basis in the record upon which to suggest that appellant killed the victim to prevent him from testifying, there is no basis upon which to find that the victim's statement was admissible under this exception. Cf: United States v. Emery, 186 F.3d 921, 926 (8th Cir. 1999), cert denied, 528 U.S. 1130, 120 S.Ct. 968, 145 L.Ed.2d 839 (2000) ("The rule contains no limitation on the subject matter of the statements that it exempts from the prohibition on hearsay evidence. Instead, it establishes the general proposition that a defendant may not benefit from his or her wrongful prevention of future testimony from a witness or potential witness.").
The discussion by the Supreme Court in Laich, was in the nature of obiter dictum, since the trial in that case took place before the effective date of the Rule. Nevertheless, the Court provided the following cogent analysis:
It is clear from the language of the exception that the exception only applies when a party's wrongdoing is done with the intention of making the declarant unavailable to testify as a witness. See 30B CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 7078 (INTERIM ED.) ("Rule 804(b)(6) is an attempt to respond to the problem of witness intimidation[.]") If a party's wrongdoing was for another purpose, e.g., killing the declarant based upon personal animosity, the exception does not apply. The dissent's reliance on a line of federal cases applying the federal forfeiture by wrongdoing exception, which is identical to Pennsylvania's exception, is misplaced since those cases involved wrongdoing that was intended to prevent a declarant from testifying. None of the cases applied the exception in circumstances where the wrongdoing was not intended to procure a declarant's unavailability for trial, such as in the instant case. Commonwealth v. Laich, 566 Pa. 19, 28 n. 4, 777 A.2d 1057, 1062 n. 4 (2001).
In arriving at this conclusion, however, we are mindful of the insightful misgivings of Justice Castille in his dissent in Commonwealth v. Laich:
There is something deeply offensive about the notion that one can murder another and then object to admission of the victim's statements on the ground that the witness is "unavailable" for confrontation at trial.
Id. at 39, 777 A.2d at 1069 (Castille, J., dissenting).
¶ 15 In our view, the only remaining exception that has the hue of relevance to our discussion is the "dying declaration" exception as set out in Pennsylvania Rule of Evidence 804(b)(2). This exception permits the admission into evidence of "statement[s] made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death." Pa.R.E. 804(b)(2). This Court, in Commonwealth v. Griffin, 684 A.2d 589 (Pa.Super. 1996), per our esteemed colleague Judge Berle M. Schiller, summarized the hallmarks of this exception:
Judge Schiller now graces the United States District Court for the Eastern District of Pennsylvania.
A statement may be considered a dying declaration, and hence admissible notwithstanding its hearsay attributes, if the declarant identifies his attacker, the declarant believes he is going to die, that death is imminent, and death actually results. Commonwealth v. Frederick, 508 Pa. 527, 531, 498 A.2d 1322, 1324 (1985).
Commonwealth v. Griffin, supra at 592 (footnote omitted).
¶ 16 The Pennsylvania Supreme Court, in Commonwealth v. Perry, 364 Pa. 537, 73 A.2d 425 (1950), defined the limited circumstances in which this exception applies:
Dying declarations are restricted to the circumstances immediately attending the homicide; they are not admissible if they relate to former and distinct transactions and embrace facts or circumstances not immediately illustrating or connected with the declarant's death: Commonwealth v. Spahr, 211 Pa. 542, 543, 60 A. 1084, 1085. To be admissible they must recite only facts to which the declarant would have been allowed to testify if on the witness stand under oath; therefore they must be based on the declarant's observations and not be merely expressions of opinion which are the result of reflection or reasoning upon matters preceding the murder. Commonwealth v. Fugmann, 330 Pa. 4, 16, 17, 198 A. 99, 106.
Commonwealth v. Perry, supra, at 539-540, 73 A.2d at 426-427 (emphasis supplied), cited with approval in Commonwealth v. Miller, 490 Pa. 457, 471, 417 A.2d 128, 135 (1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 924, 66 L.Ed.2d 842 (1981). The rationale underlying the dying declaration exception has been well stated:
The reliability of a dying declaration is provided not by an oath, nor by cross-examination; rather, its admissibility is based on the premise that no one "who is immediately going into the presence of his Maker will do so with a lie upon his lips." Lush, L.J., Regina v. Osman, 15 Cox C.C. 1, 3 (Eng. 1881). Consistent with that premise, we have stated that: ". . . before declarations of a deceased may be admitted as dying declarations, the evidence must, inter alia, justify the conclusion that at the time the statements were made, the declarant believed he was in fact dying, and also that death was imminent."
Commonwealth v. Smith, 454 Pa. 515, 517-518, 314 A.2d 224, 225 (1973), cited with approval in Commonwealth v. Griffin, supra. Thus, the mere fact of a declarant's death is not enough to transform a statement into a "dying declaration" and thereby except the statement from the hearsay rule. Commonwealth v. Little, 469 Pa. 83, 90, 364 A.2d 915, 918 (1976).
¶ 17 We, therefore, have no hesitancy in concluding that this letter, which was written by the victim at an undisclosed time before his death and then discarded, and which only expressed an opinion, as opposed to observed facts, does not fit within the narrow exception of a dying declaration.
¶ 18 Consequently, since the content of this letter depended for its relevance upon the truth of the statements being accepted, it was hearsay, and since it did not fit within any codified or statutory exception, we are compelled to the conclusion that the denial of appellant's motion in limine, and refusal of the court to preclude admission of the letter into evidence, constituted reversible error, and a new trial is warranted.
We note that the Pennsylvania Supreme Court has granted allowance of appeal in the case of Commonwealth v. Raab, 845 A.2d 874 (Pa.Super. 2004), allowance of appeal granted, ___ Pa. ___, 860 A.2d 123 (2004), to consider the question of whether the federal "residual" exception to the hearsay rule, F.R.E. 807, should become the law of Pennsylvania.
As with any claim of error arising from an evidentiary ruling we must consider the question of prejudice. The well-established standard for gauging prejudice is that of "harmless error" as defined in the landmark Supreme Court decision in Commonwealth v. Story, 476 Pa. 391, 405-406, 383 A.2d 155, 162 (1978). It may not be disputed that the letter was inclulpatory on its face. Moreover, the Commonwealth relied upon the contested letter to rebut appellant's defense theory that the murder of Mr. Sandt was the unfortunate outcome of a fight between the victim and the co-defendant that got out of control, and that she did not have the specific intent to commit first degree murder. See: Commonwealth v. Laich, supra, 566 Pa. at 29-31, 777 A.2d at 1062-1064. Finally, it bears mention that the Commonwealth offers no argument on the issue of prejudice.
¶ 19 While we have concluded that appellant is entitled to a new trial, we nonetheless address her remaining contentions, since they are likely to affect the subsequent trial in this case.
¶ 20 Appellant contends that the trial court erred in denying her motion to suppress and, in support thereof, makes the following argument:
It is the appellant's position that the custodial interrogation began in the early afternoon hours of November 28, 2002, when [appellant] arrived at the Stroud Regional Police Department Headquarters on Day Street in East Stroudsburg and was subjected to 2½ hours of extensive questioning in the absence of the administration of Miranda rights, thereby rendering her statement and the fruits thereof inadmissible at time of trial due to a violation of her constitutional right against self-incrimination as guaranteed by Amendment V of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution.
Brief of Appellant, pp. 23-24.
¶ 21 Our task, in reviewing the ruling of a suppression court, is to determine whether the factual findings are supported by the record. Commonwealth v. Malloy, ___ Pa. ___, ___, 856 A.2d 767, 777 (2004). In making the determination as to whether the factual findings support the suppression court's ruling our standard of review is quite narrow. As the prevailing party below, the Commonwealth is entitled to all favorable inferences and "we only consider the evidence of the prosecution and so much of the evidence of the defense evidence that remains uncontradicted." Id. See also: Commonwealth v. Johnson, 734 A.2d 864, 869 (Pa.Super. 1999), appeal denied, 560 Pa. 721, 745 A.2d 1219 (1999). And of course, upon review of a suppression ruling, we are not free to revisit credibility rulings. Commonwealth v. Fletcher, 561 Pa. 266, 281, 750 A.2d 261, 269 (1998), cert. denied, 531 U.S. 1035, 121 S.Ct. 623, 148 L.Ed.2d 533 (2000).
¶ 22 The law governing an inquiry into a claim that a person has waived Miranda rights has been well summarized by the Pennsylvania Supreme Court:
A defendant may waive his Miranda rights, and agree to answer questions or make a statement. Miranda, 384 U.S. at 479. For a waiver to be valid, it must be knowing, voluntary, and intelligent. Id. at 444. In other words, the waiver must be "the product of a free and deliberate choice rather than intimidation, coercion, or deception," and "must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it." Colorado v. Spring, 479 U.S. 564, 572, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987) ( quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979)).
The test for determining the voluntariness of a confession and the validity of a waiver looks to the totality of the circumstances surrounding the giving of the confession. Commonwealth v. Jones, 546 Pa. 161, 683 A.2d 1181, 1189 (1996). Some of the factors to be considered include: the duration and means of interrogation; the defendant's physical and psychological state; the conditions attendant to the detention; the attitude exhibited by the police during the interrogation; and any other factors which may serve to drain one's powers of resistance to suggestion and coercion. Id.
Commonwealth v. DeJesus, 567 Pa. 415, 429-430, 787 A.2d 394, 402-403 (2002), cert. denied, 537 U.S. 1028, 123 S.Ct. 580, 154 L.Ed.2d 441 (2002).
¶ 23 Although appellant offers a variety of allegations, from sleep deprivation to hunger, in support of her claim that she was subjected to a coercive custodial interrogation, she cannot rebut the finding of the suppression court, based upon her own testimony, that she was advised at the beginning of the police station interview that she was free to leave the police station at any time, and that she never expressed a desire to do so. See: Commonwealth v. Boczkowski, 577 Pa. 421, 446-449, 846 A.2d 75, 89-92 (2004). Similarly, the record supports the finding of the trial judge that the written confession was provided by appellant after she had been given her Miranda warnings. In light of the decision of the Pennsylvania Supreme Court that an initial statement, "although the subject of a Miranda violation", can nonetheless be considered "voluntary" when coupled with a subsequent confession provided after Miranda warnings have been given, Commonwealth v. DeJesus, supra, 567 Pa. at 436, 787 A.2d at 406, we must reject her argument.
The allegations of sleep and food deprivation are founded upon appellant's assertions that prior to her arrival at the police station she had not eaten and had only slept "four hours out of the previous 43 up to when" she gave her taped statement. N.T. April 15, 2003, p. 79. However, we agree with the analysis of the trial court that, since appellant was not in police custody for the majority of that time but was in fact in the home of her parents, whether she ate or slept prior to her arrival at the police station was not related to any police conduct, and therefore could not be the basis of a finding of coercion on the part of the police. See: Slip Opinion on Omnibus Pre-Trial Motion, June 16, 2003, Vican, P.J., pp. 8-10.
In arriving at this conclusion the Pennsylvania Supreme Court relied upon the guidance proffered by the United States Supreme Court:
The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative. [ Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985).]
Commonwealth v. DeJesus, 567 Pa. 415, 436, 787 A.2d 394, 406 (2002), cert. denied, 537 U.S. 1028, 123 S.Ct. 580, 154 L.Ed.2d 441 (2002).
We find no merit to appellant's contention that the recent decision of the United States Supreme Court in Missouri v. Seibert, ___ U.S. ___, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), requires a different result. There, a plurality of the Court opined that where the investigating officers intentionally withheld Miranda during a "question-first" interrogation, and then used the information obtained therein to interrogate the defendant after warnings were given, the right of the defendant had been violated. Here, however, there was no evidence of police design to evade the strictures of Miranda, nor was appellant arrested at the time of the initial interrogation. See: Reinert v. Larkins 379 F.3d. 76 (3rd Cir. 2004); United States v. Long Tong Kiam, 343 F.Supp.2d 398 (E.D.Pa. 2004) ( Seibert "rule" applies only when intentional police misconduct is involved).
¶ 24 Finally, appellant claims that the trial court erred in allowing the Commonwealth to present into evidence a packet of eighteen photographs that contained four semi-nude photographs of appellant and two nude photographs of the co-defendant, Leonard Fransen. The Commonwealth had offered these photographs to prove the intimate nature of the relationship between the co-defendants. The pictures were posed personal photographs and did not depict any sexual acts.
The photographs were recovered by the police from a dumpster where appellant had attempted to dispose of them after she heard of the victim's death.
¶ 25 The Pennsylvania Rules of Evidence provide that "[a]ll relevant evidence is admissible, except as otherwise provided by law." Pa.R.E. 402. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Pa.R.E. 401. See: Commonwealth v. Stallworth, 566 Pa. 349, 363, 781 A.2d 110, 117 (2001) ("Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact.").
¶ 26 The trial judge, in considering whether to allow the introduction of photographs, must "determine whether the evidentiary value of the photos outweighs the possibility that they will inflame the minds and passions of the jurors." Commonwealth v. Begley, 566 Pa. 239, 268, 780 A.2d 605, 622 (2001). Moreover, the admission of photographs is a matter resting with the discretion of the trial court. Commonwealth v. Woods, 454 Pa. 250, 252, 311 A.2d 582, 583 (1973), cited with approval in Commonwealth v. Tharp, 574 Pa. 202, 221, 830 A.2d 519, 530 (2003), cert. denied, ___ U.S. ___, 124 S.Ct. 2161, 158 L.Ed.2d 736 (2004). Here, the trial judge found that these contested photos were relevant, and admitted them "because of the nature of these charges and the conspiracy charges." N.T. January 8, 2004, p. 93.
¶ 27 Appellant has not specifically argued that the decision of the trial court to admit these photographs constituted an abuse of discretion, but rather that the trial judge admitted these photographs out of personal animus towards her. This assertion does not find support in the record, and such a cursory claim does not present such a cogent argument as would warrant full review. Commonwealth v. Irby, 700 A.2d 463 (Pa.Super. 1997). Were we to review the issue, however, we would find no basis upon which to disturb this exercise of discretion by the trial judge.
Appellant contends in relevant part, "It is clear that the trial court didn't like the defendant and didn't properly engage in the legal analysis required for the introduction of the photographs." Brief of Appellant pp. 32-33.
The Commonwealth did not place particular emphasis on these photographs in the presentation of its case, or in its argument to the jury. See: N.T. January 8, 2004 pp. 92-94.
¶ 28 Judgment of sentence vacated. Case remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.
¶ 29 STEVENS, J., FILES A DISSENTING OPINION.
¶ 1 I agree with the majority that the trial court committed no error when it refused to suppress Appellant's statements while under interrogation or when it allowed the Commonwealth to introduce certain photographs into evidence. However, the majority vacates the judgment and remands for a new trial, finding that the admission of a letter by the victim was inadmissible. With that conclusion I respectfully disagree.
¶ 2 I would find that the victim's letter was not hearsay because it was properly admitted as evidence of an extramarital affair. Even if the letter is hearsay, it is admissible to show motive under the state of mind exception. I would therefore find that the trial court did not abuse its discretion and, because I would affirm the judgments of sentence, I must respectfully dissent.
I would note that Appellant failed to include a copy of his Pa.R.A.P. 1925(b) Statement of Matters Complained of on Appeal and thus violated Pa.R.A.P. 2111(a)(10). However, because Appellant otherwise identifies the specific issues for review, Appellant's failure to comply does not impede our ability to review the issue and thus it is not necessary to find Appellant's arguments waived. Commonwealth v. Long, 786 A.2d 237, 239 n. 3 (Pa.Super. 2001).
¶ 3 The majority relies heavily on Commonwealth v. Thornton, 494 Pa. 260, 431 A.2d 248 (1981), in finding that the victim's letter should have been suppressed. In Thornton, the Commonwealth sought to admit an oral statement by a murder victim that he was carrying a gun for protection because he was fearful of the defendant. Thornton, 494 Pa. at 265, 431 A.2d at 251. The Commonwealth argued that the statement was admissible because it established the victim's fear and thus came within the "state of mind" hearsay exception. Id. The Supreme Court found that an inquiry into the victim's state of mind was irrelevant to establish the defendant's degree of guilt. Id. The Supreme Court also found that the statement could be relevant only if it was considered for the truth of the matter asserted that the defendant was "after" the victim. Id.
¶ 4 Thornton establishes that a statement is inadmissible hearsay only if there is no other relevant reason to admit the statement other than for the truth of the matter asserted. The majority, without explaining its reasoning, states that the content of the letter was relevant only "for the truth of what it described." Majority Opinion at 8. Specifically, the majority does not address the trial court's opinion that the letter was admissible as evidence of a prior relationship between Appellant and a co-defendant. Trial Court Opinion, Filed 6/16/03, at 18.
¶ 5 In Thornton the Commonwealth argued that the statement was admissible for only one reason: because the statement established the victim's state of mind. In the within case, the Commonwealth did not make such an argument. Rather, the Commonwealth argues that the letter is not hearsay if it is limited to proof of the relationship between Appellant and the co-defendant and for proof of Appellant's motive. The trial court's ruling, that the letter is admissible subject to such limitations, is proper. Although Appellant argues that admitting the letter as "proof of the relationship" would be cumulative, I see no evidence in the record before us that Appellant made such an argument to the trial court. As a result, I would consider Appellant's cumulative evidence argument waived. See Commonwealth v. Ferri, 599 A.2d 208, 214 (Pa.Super. 1991) (stating that this Court's review of a cumulative evidence argument is whether the trial court abused its discretion in finding that the evidence was not cumulative).
¶ 6 Even if we were to consider the letter cumulative to the effect of proving the affair between Appellant and her co-defendant, Thornton is not controlling. Thornton establishes that a declaration is not admissible hearsay if offered only to prove the immaterial issue of the victim's state of mind. Thornton, 494 Pa. at 265, 431 A.2d at 251. However, as the Pennsylvania Supreme Court stated in Commonwealth v. Chandler, a murder victim's statement of opinion regarding her relationship to her spouse is admissible to establish "the presence of ill will, malice, or motive for the killing." Commonwealth v. Chandler, 554 Pa. 401, 411, 721 A.2d 1040, 1045 (1998). See also Commonwealth v. Sneeringer, 668 A.2d 1167, 1171-72 (Pa.Super. 1995) (finding that a victim's statement regarding the breakdown of her relationship with the defendant was admissible to prove ill will, motive, or malice and fell under the "state of mind" exception because it "allow[ed] the jury to infer appellant's motive from such a revelation.").
The majority, in addressing Chandler and Sneeringer, distinguishes those cases from the within case by explaining that the disputed evidence in Chandler was limited to the victim's negative opinion of the defendant and that the disputed evidence in Sneeringer was limited to the victim's intent to "get appellant out of her life." Majority Opinion at 11 n. 6 (citing Chandler, supra; Sneeringer, supra). I cannot agree with the majority's interpretation. Both the Chandler Court and the Sneeringer Court justified their holdings with broad language expressing the well-settled law that evidence concerning the relationship between a defendant and a victim are relevant and admissible to prove ill will, motive, or malice. Chandler, 554 Pa. at 409, 721 A.2d at 1044; Sneeringer, 668 A.2d at 1171. In the within case, the trial court explicitly stated several times, notably before the trial, during jury instructions, and in its 1925(a) opinion, that the letter would be limited to evidence of the status of the relationship. Because I believe the letter contains legitimate evidence of marital trouble, Chandler and Sneeringer should continue to apply.
¶ 7 In order to determine if Thornton is distinguishable from the within case, we must consider the facts at issue in Thornton. The appellant was accused and convicted of homicide. Thornton, 494 Pa. at 262, 431 A.2d at 249. The appellant objected to a witness's testimony regarding statements by the victim. Thornton, 494 Pa. at 264-65, 431 A.2d at 250-51. The witness stated that the victim claimed to be carrying a gun for protection from the appellant because the victim claimed that the appellant was "after him." Id. The Pennsylvania Supreme Court determined that the statement established that the victim was fearful of the appellant, but that it did not establish the appellant's state of mind. Id.
The exact testimony at issue in Thornton is as follows:
Q: What was said by [the victim] in the car going downtown in reference to this gun that he had in his possession?
A: Well, we asked him why he was carrying a gun, and he says he was carrying it for protection. We asked him why, protection against whom, and he says [the appellant was] after him. He didn't state why or how come.
Thornton, 494 Pa. at 264-65, 431 A.2d at 250-51.
¶ 8 In the within case, the victim's statement clearly presents evidence of Appellant's state of mind. As Chandler and Sneeringer indicate, a victim's statement regarding marital trouble may be admissible to establish the defendant's state of mind. See Chandler, supra; Sneeringer, supra. The Thornton hearsay statement was not a statement directly related to the victim's relationship with the appellant, but it was rather only a statement of the victim's fear of the appellant. However, in the within case, the trial court clearly limited the admissibility of the victim's letter to his statements regarding the status of his relationship to Appellant.
¶ 9 The majority also concludes that the Pennsylvania Supreme Court's more recent decision in Commonwealth v. Laich, 566 Pa. 19, 777 A.2d 1057 (2001), supports its contention that the victim's letter does not satisfy the state of mind exception. Majority Opinion at 11 n. 6. Again, I respectfully disagree. The Laich Court states that its holding is based on relevancy, not the hearsay exceptions of the Pennsylvania Rules of Evidence. In fact, I believe a close examination of Laich reinforces my belief that Thornton would allow the contents of the victim's letter here to be admissible.
¶ 10 In Laich, the defendant was charged with first-degree murder. At trial, the defendant did not deny that he killed the victim, but rather contended that he was guilty only of voluntary manslaughter due to heat of passion. Laich, 566 Pa. at 24, 777 A.2d at 1059-60. At issue was the testimony of a Commonwealth witness:
The victim was the defendant's girlfriend, and the defendant caught her engaging in sexual relations with another man. Laich, 566 Pa. at 24, 777 A.2d at 1059.
Q: And what did [the victim] say that [the defendant] said to her?
A: She said that he said if he couldn't have her, if — that if he ever caught her with another man, that he would kill them both. Laich, 566 Pa. at 24, 777 A.2d at 1060. The trial court and a panel of this Court found that the victim's statement was admissible under the state of mind exception to the hearsay rule. Id.
The witness's testimony also contained a double hearsay issue. However, the Pennsylvania Supreme Court found that the defendant's statement to the victim fell within the party admission exception. Laich, 566 Pa. at 25, 777 A.2d at 1060. Therefore, the primary issue was whether the victim's statement to the witness was admissible.
¶ 11 The Pennsylvania Supreme Court reversed. However, the Court did not reverse because the statement did not fall under the state of mind exception; rather, it reversed because, based on the defendant's defense of "guilty only of voluntary manslaughter," the victim's state of mind regarding her relationship with the defendant was irrelevant, similar to its reasoning in Thornton. Laich, 566 Pa. at 28, 777 A.2d at 1062. Specifically, the Court stated, "[E]ven if the trial court properly found that the state of mind exception had been met, it still erred in allowing [the witness] to testify to [the victim's] out-of-court statement regarding [the defendant's] out-of-court statement because such testimony was not relevant to the case." Id. (emphasis added). This statement by the Court, along with the rest of its analysis of the victim's state of mind, indicates that the Court never intended for the Pennsylvania Rules of Evidence to exclude the "status-of-relationship state of mind" exception explicitly allowed by Chandler and Sneeringer.
According to the Court, the defendant's argument of "guilty only of voluntary manslaughter" effectively rendered the victim's state of mind irrelevant because the defendant's argument that he killed the victim because of provocation made only the defendant's state of mind relevant. Laich, 566 Pa. at 28, 777 A.2d at 1062.
¶ 12 The learned majority relies upon a strict reading of Pennsylvania Rule of Evidence 803(3) to find the letter inadmissible. However, my reading of 803(3) indicates that the letter still complies with the text of the rule. The text of Rule 803(3) creates a state of mind exception for "statement[s] of the declarant's then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health." Pa.R.E. 803(3). The majority believes that Rule 803(3) thus limits the exception to the declarant's intent, plan, or motive. Majority Opinion at 10. However, ever since the Pennsylvania Supreme Court adopted the Pennsylvania Rules of Evidence, the Pennsylvania Supreme Court has continued to find that a victim's statement regarding his or her relationship with the appellant may fall under the state of mind exception. See Commonwealth v. Stallworth, 566 Pa. 349, 364, 781 A.2d 110, 118 (2001) (allowing the admission of a "Protection From Abuse" application and the victim's statements therein if the Commonwealth used them "to show the victim's state of mind regarding the relationship between [the] [a]ppellant and her and the malice and/or ill-will she perceived."). See also Commonwealth v. Hutchinson, 571 Pa. 45, 57, 811 A.2d 556, 563 (2002) (Castille, J., concurring) ("This Court has consistently held that the out-of-court statements of a homicide victim, where probative of the victim's view of his or her relationship with the defendant, are relevant and admissible to show the presence of ill will, malice, or motive for the killing."). Based on the Court's rulings subsequent to the adoption of the Pennsylvania Rules of Evidence, I do not believe Rule 803(3) restricts all evidence of a victim's statement regarding an intent, plan, or motive that is not hers, as long as the statement is relevant.
I note that the majority has not cited any case subsequent to the adoption of Rule 803(3) which holds that Rule 803(3) restricts the exception to the victim's motive.
I note that Stallworth was decided approximately 1.5 months after Laich. See Stallworth, supra; Laich, supra.
¶ 13 We are not confronted today with a Laich situation. The Commonwealth charged Appellant with accomplice liability to first-degree murder, and Appellant pleaded not guilty because she argued that she was not involved in the murder. Because the Pennsylvania Supreme Court and this Court have consistently found that a victim's state of mind regarding his or her relationship with the defendant may meet the state of mind exception, even in the wake of Laich and jurisprudence subsequent to the adoption of the Pennsylvania Rules of Evidence, it is clear that the victim's letter falls under the state of mind exception. Furthermore, based on Thornton and Laich, I would find that the victim's state of mind regarding the relationship between Appellant and him is relevant to the within case.
¶ 14 I therefore would find that the trial court acted properly in admitting the letter on a limited basis. The record supports the trial court's findings, and I would find that the letter may be admitted to establish motive, malice, or ill will. I would find that Chandler and Sneeringer control the issue and that they compel us to affirm the judgments.