COMMONWEALTH of Pennsylvania, Appellee v. Timothy BOCZKOWSKI, Appellant.
Supreme Court of Pennsylvania.
Argued March 4, 2002. Decided March 23, 2004.
846 A.2d 75
Karen T. Edwards, Edward Borkowski, Pittsburgh, Amy Zapp, Harrisburg, for the Com., Appellee.
OPINION OF THE COURT
Justice CASTILLE.
On May 5, 1999, a jury sitting before the Honorable David S. Cercone of the Court of Common Pleas of Allegheny County convicted appellant of first-degree murder for the strangulation death of his wife, Maryann Boczkowski.1 At the penalty hearing, the jury found one aggravating circumstance—that appellant had been convicted of another murder committed before or at the time of the offense at issue2—and one mitigating circumstance—evidence of mitigation concerning appellant‘s character.3 The jury found that the aggravating circumstance outweighed the mitigating circumstance and therefore returned a sentence of death.4 On May 6, 1999, the trial court formally imposed the death sentence. In this direct appeal from the sentence of death, appellant specifies twenty claims of error. For the reasons that follow, we affirm the verdict of guilt, but vacate the sentence of death and remand for imposition of a sentence of life imprisonment.
I. Sufficiency of the Evidence5
In all direct capital appeals, this Court performs a self-imposed duty to review the sufficiency of the evidence in support of the first-degree murder verdict. E.g. Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831, 840 (2003). In addition, appellant specifically challenges the sufficiency of the evidence, arguing that the Commonwealth failed to prove that Maryann Boczkowski‘s death was a homicide, rather than an accident. In reviewing the sufficiency of the evidence, the Court must determine whether the evidence admitted at trial and all reasonable inferences derived therefrom, when viewed
Our independent review of the evidence reveals that, on November 7, 1994, appellant summoned paramedics and police to his home in Ross Township, Pennsylvania. The first police officer to arrive at the scene found appellant attempting to revive his thirty-six-year-old wife, Maryann Boczkowski, who was unconscious in the couple‘s hot tub. Appellant, police officers and paramedics removed Maryann from the hot tub and attempted to revive her, but they were unsuccessful. Maryann was transported to Allegheny General Hospital at appellant‘s request, rather than to the closest hospital. There, she was pronounced dead. An autopsy revealed that Maryann‘s death was caused by asphyxiation, resulting from blunt force trauma to her neck. The autopsy also showed numerous points of trauma of recent origin on Maryann‘s body and head, including hemorrhages on her neck and bruises on the interior of her scalp, which were inconsistent with the treatment she received in the attempts to revive her. Maryann‘s blood alcohol level at the time of her death was .22 percent.
Meanwhile, a physical examination of appellant revealed fresh scratch marks on his arms, sides and hands. In addition, before Maryann was taken to Allegheny General Hospital, appellant spontaneously told police: “I hope they don‘t try to put this on me.” Later, after voluntarily accompanying police to the Ross Township Police Department, appellant nodded in the affirmative when officers asserted that he had been involved in his wife‘s death.
Independent trial evidence established that appellant‘s former wife, Elaine Boczkowski, had been found dead in her bathtub in Greensboro, North Carolina, on November 4, 1990. The factual circumstances of that death bore a marked similarity to the circumstances surrounding Maryann‘s death: Elaine died in her bathtub, Maryann in a hot tub. Both women were in their thirties and in good health. Appellant reported to the North Carolina police that Elaine had been drinking alcoholic beverages before entering the bathtub; he told Ross Township police that Maryann had been drinking prior to entering the hot tub. Appellant told police in both jurisdictions that he and his wife had a minor argument on the evening before the death. In each case, police noticed that appellant had fresh scratch marks on his arms, hands and torso shortly after his wife‘s death. The autopsies of both women revealed that they had died from asphyxiation, not drowning.
The foregoing evidence adequately supports the jury‘s finding that Maryann Boczkowski was unlawfully killed, that appellant, who was found with her, killed her, that he acted with the specific intent to kill when he applied blunt force to Maryann‘s neck, and that the killing was done with premeditation and deliberation.
Turning to appellant‘s specific sufficiency claim, he argues that the evidence was insufficient to prove that Maryann Boczkowski‘s death resulted from a homicide rather than an
II. Claims of Pre Trial Error
Appellant raises eight claims of pre-trial error: one claim that his rights under former
Appellant first claims that the trial court erred in denying his motion to dismiss the charges against him under former Rule 1100.6 In reviewing the Rule 1100 determination of the trial court, we “must view the facts in the light most favorable to the prevailing party” and we will not disturb the decision below absent an abuse of discretion. Commonwealth v. Hill, 558 Pa. 238, 736 A.2d 578, 581 (1999). Pursuant to the Rule and this Court‘s holding in Hill, a capital defendant must be brought to trial within 365 non-excludable days of the filing of a complaint against him. Id. at 584. See also Commonwealth v. Cook, 544 Pa. 361, 676 A.2d 639, 645 n. 11 (1996); Common-
(c) In determining the period for commencement of trial, there shall be excluded therefrom:
(1) the period of time between the filing of the written complaint and the defendant‘s arrest, provided that the defendant could not be apprehended because his or her whereabouts were unknown and could not be determined by due diligence;
(2) any period of time for which the defendant expressly waives Rule 1100;
(3) such period of delay at any stage of the proceedings as results from:
(i) the unavailability of the defendant or the defendant‘s attorney;
(ii) any continuance granted at the request of the defendant or the defendant‘s attorney.
We find no abuse of discretion in the trial court‘s ruling.
The complaint charging appellant with his wife‘s murder was filed on November 14, 1994, and his jury trial commenced on April 5, 1999, 1,603 days later. From that time period, appellant concedes that it is appropriate to exclude: (1) the 966 days from October 5, 1995 through May 27, 1999, during which the Commonwealth‘s pre-trial appeal of the trial court‘s ruling on appellant‘s motion in limine was litigated (this 966 days includes the period during which appellant‘s petition for allowance of appeal was pending in this Court following the Superior Court‘s ruling in the Commonwealth‘s favor);7 and (2) the 63 days between February 1, 1999 and the date trial ultimately commenced, April 5, 1999, because appel-
Appellant takes issue with the trial court‘s exclusion of two other large blocks of time: (1) the 147 days from May 1, 1995 to September 25, 1995, occasioned by a defense request for a postponement; and (2) the 148 days from May 27, 1998, when this Court denied his allocatur petition following the Commonwealth‘s successful pre-trial appeal, and October 22, 1998, when appellant was returned from North Carolina to Pennsylvania for trial.
As to the first period, appellant argues that the trial court erred in excluding this period from the Rule 1100 calculation because it was the Commonwealth‘s lack of due diligence in providing him with discovery which occasioned his postponement request. Invoking Rule 1100(c)(2), the Commonwealth counters by noting that, on April 10, 1995, the same date that appellant requested the continuance, he explicitly waived his Rule 1100 rights both in a record colloquy9 and a written colloquy.10 Both waiver colloquies noted that the next trial listing was September 25, 1995. Moreover, the written waiver explicitly noted that this time was excludable time under Rule 1100. Appellant inexplicably does not acknowledge the existence of the explicit waivers, much less does he argue that the waivers were deficient in some fashion. Under the plain language of
The Commonwealth responds that the 148 day delay in appellant‘s return to Pennsylvania was occasioned solely by his refusal to sign an IAD waiver12 and his concomitant decision to fight his return to Pennsylvania in the North Carolina court system.13 The Commonwealth notes that it acted diligently in attempting to secure appellant‘s return and, thus, this period of appellant‘s unavailability was properly excluded under the plain terms of
Although we will discuss the Commonwealth‘s alleged violation of the initial extradition order in resolving appellant‘s penalty phase claim concerning the aggravating circumstance in this case, we need not address it to resolve the Rule 1100 issue. This is so because exclusion of this 148-day period is not necessary to determine that trial was held within the 365 days afforded under Rule 1100. As the Commonwealth accurately notes, appellant executed a second explicit, written waiver on November 23, 1998, waiving his Rule 1100 rights from that date until “April 5, 1999 + 60 days.”14 Thus, it is not simply the 63-day period from February 1, 1999 to April 5, 1999 which was excludable after appellant was returned from North Carolina, but also the 70-day period from November 23, 1998 to February 1, 1999, as well. Once again, appellant inexplicably does not acknowledge the existence of this waiver, much less does he explain why it does not result in
Appellant‘s next four claims of error involve challenges to the Superior Court‘s decision concerning the Commonwealth‘s pre-trial appeal. That appeal was from the trial court‘s October 4, 1995 order granting in part appellant‘s motion in limine and barring the Commonwealth from introducing any evidence concerning appellant‘s marriage to Elaine Boczkowski, her death in 1990, and appellant‘s arrest in 1994 for her death, except to the extent the Commonwealth sought to introduce the evidence “to rebut [appellant‘s] claim or any other evidence that the death of Mary Ann Boczkowski was the result of accident.” The Commonwealth argued on appeal that the evidence concerning Elaine Boczkowski was admissible in its case-in-chief to prove that Maryann‘s death was not an accident, but was, in fact, a murder.
A divided panel of the Superior Court issued a memorandum opinion affirming in part and reversing in part. The panel majority noted the settled rule that relevant evidence of prior bad acts is inadmissible to show bad character or criminal propensity, but is admissible if offered for another relevant purpose and if the probative need for the evidence outweighs its potential prejudicial effect. See, e.g., Commonwealth v. Richter, 551 Pa. 507, 711 A.2d 464, 466 (1998). Citing the decision in Commonwealth v. Donahue, 519 Pa. 532, 549 A.2d 121, 127 (1988) (Opinion Announcing Judgment of Court), the majority agreed with the trial court that this evidence fell within the well-recognized “absence of accident” exception to the general proscription against the introduction
Appellant filed a petition for allowance of appeal to this Court claiming that the Superior Court erred in: (1) ruling on the Commonwealth‘s interlocutory appeal without first determining the validity of the Commonwealth‘s certification that the trial court motion in limine terminated or substantially handicapped the prosecution; and (2) reversing the trial court‘s determination that evidence regarding Elaine‘s death was admissible only in rebuttal. This Court denied allocatur on February 25, 1998 and denied reconsideration on May 27, 1998.
Appellant‘s first assignment of error concerning the pre-trial appeal echoes his complaint on allocatur that the Superior Court erred in failing to determine the validity of the Commonwealth‘s certification that the grant of appellant‘s motion in limine terminated or substantially handicapped the prosecution.16 Appellant claims that mere certification by the
Commonwealth that a pre-trial order terminates or substantially handicaps the prosecution is not sufficient to trigger the right to appeal orders granting defense motions in limine. Superior Court committed no error.In a criminal case, under the circumstances provided by law, the Commonwealth may take an appeal as of right from an order that does not end the entire case where the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution.
The classic case of an interlocutory order appealable by the Commonwealth as of right by such certification is one granting a defense motion to suppress evidence. E.g., Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382, 386 (1985). The certification by an officer of the Court guards against frivolous appeals or appeals intended solely for delay. Id. This Court has held that the Commonwealth‘s certification is “not contestable” and “in and of itself, precipitates and authorizes the appeal.” Id. See also Commonwealth v. Matis, 551 Pa. 220, 710 A.2d 12, 17 (1998) (same).17 This Court has since made clear that the Commonwealth may appeal a pre-trial ruling on a motion in limine which excludes Commonwealth evidence in the same manner that it may appeal an adverse ruling on a suppression motion—i.e., by certification that the order has the effect of terminating or substantially handicapping the prosecution. Matis, supra; Commonwealth v. Gordon, 543 Pa. 513, 673 A.2d 866 (1996); Commonwealth v. Cohen, 529 Pa. 552, 605 A.2d 1212 (1992) (plurality opinion).
In the case sub judice, the Commonwealth included in its notice of appeal a good faith certification that the trial court order excluding evidence of Elaine Boczkowski‘s murder from
Appellant next claims that the Superior Court panel majority erred in considering a matter not of record in ruling upon the admissibility of the other crimes evidence—specifically, the fact that by the time of the Superior Court‘s decision appellant had been tried and convicted of Elaine Boczkowski‘s murder in North Carolina. The Superior Court merely mentioned the fact of the conviction—a fact whose accuracy appellant does not dispute—in a footnote appended to its quotation of the trial court‘s in limine ruling. The fact of the conviction itself was not cited by the panel as playing any role in its admissibility analysis. Moreover, even if it is assumed that the Superior Court should not have adverted to the fact, appellant‘s procedural objection ultimately merges into his substantive claim which we address immediately below, i.e., that the evidence of the fact and circumstances of Elaine Boczkowski‘s murder should have been deemed inadmissible in the Commonwealth‘s case-in-chief. Because we reject that claim on the merits, this derivative objection necessarily fails.
Turning to that substantive claim, appellant concedes that evidence of prior bad acts is admissible to prove absence of mistake or accident. He argues, however, that a defense of accident must first be raised before the evidence may be introduced, i.e., he suggests that such evidence is a matter for rebuttal only. Appellant goes so far as to suggest that in the absence of “a positive claim by the defense that accident, not homicide, was the underlying cause of death,” proof tending to show absence of accident is irrelevant. Appellant further notes that the Commonwealth should not be permitted to “‘credit the accused with fancy defenses in order to rebut them‘” with prejudicial evidence. Appellant‘s Brief, 36 (quoting McCormick on Evidence (2d ed.), § 190 n. 54). The Commonwealth responds by noting that, in order to convict appellant of first degree murder, it is required to prove
Evidence is admissible if it is relevant—that is, if it tends to establish a material fact, makes a fact at issue more or less probable, or supports a reasonable inference supporting a material fact, Tharp, 830 A.2d at 530 (citing Commonwealth v. Stallworth, 566 Pa. 349, 781 A.2d 110, 117 (2001))—and its probative value outweighs the likelihood of unfair prejudice. As noted above, evidence of prior bad acts, while generally not admissible to prove bad character or criminal propensity, is admissible when proffered for some other relevant purpose so long as the probative value outweighs the prejudicial effect. Richter; see also Commonwealth v. Spotz, 562 Pa. 498, 756 A.2d 1139, 1152 (2000), cert. denied, 532 U.S. 932, 121 S.Ct. 1381, 149 L.Ed.2d 307 (2001). This Court has recognized many relevant purposes, other than criminal propensity, for which evidence of other crimes may be introduced, including to show the absence of accident. E.g., Spotz.
Moreover, the defendant does not have to actually forward a formal defense of accident, or even present an argument along those lines, before the Commonwealth may have a practical need to exclude the theory of accidental death. This case provides a practical example. Certain of the evidence available to the Commonwealth here was suggestive that Maryann‘s death could have been accidental, even if appellant did not affirmatively argue that inference. Illustrative are the facts that appellant told paramedics at the scene that on the night she died Maryann had consumed fourteen beers; that he and Maryann had been celebrating an upcoming event; that he had left her in the hot tub while he went to take a shower; and that, upon returning, he found her unconscious and face up in the hot tub. This account clearly suggested an acciden-
Given the remarkable similarity between the manner in which both of appellant‘s wives were killed, evidence concerning the circumstances of Elaine‘s death supported a reasonable inference that Maryann‘s death was not accidental, but rather, was a result of appellant‘s deliberate act. We agree with the Superior Court that the evidence was highly relevant and that its probative value outweighed any potential for unfair prejudice. As to the last point, we note that the trial court repeatedly and clearly charged the jury that the evidence was admitted for the limited purpose of excluding accident as the manner of death, and could not be considered for any other purpose. Spotz, 756 A.2d at 1153 (fact that trial court clearly instructed jury that it could only consider other crimes evidence for relevant limited purposes, and not merely as evidence of appellant‘s propensity to commit crimes weighed against claim of error). Accordingly, this claim fails.
Appellant‘s final claim arising out of the pre-trial appeal is that the Superior Court erred in supposedly creating a per se exception to the general proscription against the admission of prior bad acts. The unpublished Superior Court decision below creates no such per se exception. The Superior Court did not innovate some new rule of evidence: Absence of accident is a recognized exception to the proscription appellant invokes. Because we have determined that the evidence at
Appellant next raises three claims relating to the trial court‘s denial of his motion to suppress evidence. Because the Commonwealth prevailed in the suppression court, we may consider only the Commonwealth‘s evidence and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831, 842 (2003) (citing Commonwealth v. Fletcher, 561 Pa. 266, 750 A.2d 261, 268 (2000) and Commonwealth v. Hall, 549 Pa. 269, 701 A.2d 190, 197 (1997), cert. denied, 523 U.S. 1082, 118 S.Ct. 1534, 140 L.Ed.2d 684 (1998)).
Appellant first argues that the trial court erred by refusing to suppress the fruits of the police questioning of him on November 7, 1994, because he was interrogated during a custodial detention which was unsupported by probable cause.18 Appellant alleges that Ross Township detectives transported him to the Ross Township Police Station and kept him in a room in the basement from 4:20 a.m. until 11:30 p.m. without affording him a “specific option” to leave; during that time, he was photographed, a polygraph examination was arranged, and he was interviewed by detectives; and he claims he had no opportunity to sleep either before he was transported or while he was at the police station. Appellant argues that these circumstances gave rise to a reasonable belief that he was being detained and that detectives lacked probable cause to detain him because the autopsy on Maryann Boczkowski had not yet been completed. Because the detention was illegal, appellant argues, the trial court should have suppressed the evidence acquired as a result of the detention.
A person is in custody for Miranda19 purposes only when he “is physically denied his freedom of action in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by the interrogation.” Commonwealth v. Johnson, 556 Pa. 216, 727 A.2d 1089, 1100 (1999) (citation omitted). The U.S. Supreme Court has elaborated that, in determining whether an individual was in custody, the “ultimate inquiry is . . . whether there [was] a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 1528-29, 128 L.Ed.2d 293 (1994) (citations omitted). The question of custody is an objective one, focusing on the totality of the circumstance, with due consideration given to the reasonable impression conveyed upon the person being questioned. Commonwealth v. Gwynn, 555 Pa. 86, 723 A.2d 143, 148 (1998), cert. denied, 528 U.S. 969, 120 S.Ct. 410, 145 L.Ed.2d 320 (1999).
The suppression record reveals that Detective Gary Waters, the first detective responding to the scene, arrived at appellant‘s house at approximately 3:00 a.m. on November 7, 1994 and had a brief conversation with appellant, during which he noticed a scratch mark on appellant‘s neck. At approximately 3:45 a.m., Detectives Waters and James Cvetic spoke to appellant and noted that he had a small injury on his left thumb. After a further brief conversation, the detectives asked appellant if he would accompany them to the police station so that his sleeping children would not be disturbed. Appellant readily agreed, expressing his desire to cooperate in any way and agreeing to give to the detectives the clothes he had been wearing earlier that evening. Although appellant
Appellant and the detectives arrived at the police station at 4:20 a.m. and appellant was interviewed until approximately 5:45 a.m. in Detective Waters’ basement office. Appellant was at all times alert and responsive to the officers’ questions. At 5:30 a.m., appellant signed a consent form allowing police to photograph the scratches on his body, take fingernail scrapings, and obtain items found in or near the hot tub. Appellant also agreed to submit to a polygraph examination. During this entire time, appellant was free to move around the police station and was told that he was free to leave at any time. Between approximately 6:00 a.m., when the polygraph examiner was contacted, and 8:15 a.m., when the examiner arrived at the police station, appellant ate breakfast with the officers while discussing football, his children and other topics. Appellant never expressed that he was tired or that he wished to go home. He did request permission to contact his father to inquire about his children, and that request was accommodated.
When the polygraph examiner, Trooper Richard Ealing, arrived at the station, he explained the process to appellant and advised him of his Miranda rights. Appellant signed a form explicitly waiving those rights and was subjected to a polygraph examination. During the examination, Trooper Ealing repeatedly told appellant that he was free to leave and could not be forced to take the examination. The examination was completed at 10:15 a.m., at which time Trooper Ealing informed appellant that he had failed. The trooper expressed his belief that appellant was responsible for his wife‘s death, and appellant nodded in the affirmative. Appellant stated, “This is pretty serious; maybe I should call someone,” but he neither identified whom he might wish to call nor did he pursue that issue.
Trooper Ealing informed the detectives that appellant had failed the polygraph examination, at which time appellant was again reminded of his Miranda rights, which he did not exercise. Again, appellant nodded in the affirmative when
At 11:30 a.m., appellant was transported, without use of any restraints, to police headquarters for fingernail scrapings and a physical examination of his scratch marks. At noon, appellant signed a consent to search his clothing and body and he cooperated with the physician who took fingernail scrapings and examined the scratch marks. Attorney Herb arrived at police headquarters at approximately 2:00 p.m. and met with appellant alone for approximately one hour. Following that private meeting, Detective Cvetic again advised appellant of his Miranda rights, this time in the presence of Attorney Herb. Appellant elected to make no further statements and left police headquarters at 3:30 p.m. in the company of Attorney Herb.
On this record, the trial court found that appellant voluntarily accompanied police to the station house and that, while he certainly was questioned by police, such circumstances did not constitute custodial interrogation since he was free to leave at all times. That reality was reinforced by the fact that questioning ceased when appellant eventually invoked his right to have counsel present as well as the fact that, after counsel arrived and appellant consulted with him, he left in the company of counsel and was not arrested until some time later. In addition, the trial court stressed that, in any event, appellant was properly warned of his rights, he voluntarily waived those rights and spoke with police, and when he finally invoked those rights they were honored by police. The record fully supports the trial court‘s legal conclusions respecting the lack of custody, the Miranda waiver, and police respect for appellant‘s rights once invoked. Hence, this suppression claim fails.
Finally, appellant claims that the suppression court erred by denying his motion to suppress the affirmative nods he made in response to questioning that occurred during custodial interrogation, and after he had invoked his right to counsel. Appellant cites Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), a case which indeed involved custodial interrogation. Appellant argues that when he initially agreed to accompany police officers to the station house in the early morning hours of November 7, 1994, he mentioned the name “Jim Herb.” At approximately 10:15 a.m., he notes, after the polygraph examination was complete, he stated, “This is pretty serious; maybe I should call someone.” When appellant later explicitly asked to speak to counsel, the attorney he asked for was James Herb. Reasoning backwards from that fact, appellant argues that his earlier two references—invoking the name “Jim Herb” and later saying that maybe he should call “someone“—were themselves invocations of his right to counsel, which should have precluded police from questioning him without an attorney.
The Commonwealth responds that appellant was not in police custody at the relevant time and, thus, Edwards does not apply; that police, in an abundance of caution, read appellant the Miranda warnings does not change that fact. In the alternative, the Commonwealth notes that, although
Since we have determined that appellant was not in police custody at the time he was questioned, appellant‘s Edwards claim, which is predicated upon the assumption that he was in custody, necessarily fails. In addition, we agree with the Commonwealth that the suppression hearing record supports the conclusion that appellant‘s earlier references were at best equivocal and that he did not, in fact, request to contact an attorney until after he made his affirmative nods. Accordingly, the suppression court properly refused to suppress evidence concerning the head nods.
III. Claims of Guilt Phase Trial Court Error
Appellant raises seven evidentiary claims and three claims that the trial court erred in its charge to the jury. The admissibility of evidence rests within the sound discretion of the trial court, and such a decision will be reversed only upon a showing that the trial court abused its discretion. Commonwealth v. Reid, 571 Pa. 1, 811 A.2d 530, 550 (2002) (citing Commonwealth v. Jones, 546 Pa. 161, 683 A.2d 1181, 1193 (1996)).
Appellant‘s first evidentiary claim is that the trial court abused its discretion by admitting cumulative evidence pertaining to the death of appellant‘s first wife, which resulted in undue prejudice to appellant and compromised his right to a fair trial. Appellant argues that “twenty-one percent” of the Commonwealth‘s witnesses testified exclusively about Elaine‘s death in North Carolina, while a number of the witnesses who testified regarding Maryann‘s murder also testified about Elaine‘s murder. Appellant calculates that “fifty-two percent” of the Commonwealth‘s witnesses testified in whole or in part
The Commonwealth counters that the testimony of all of the witnesses was within the parameters of the Superior Court‘s decision, which permitted the Commonwealth to introduce in its case-in-chief the evidence concerning appellant‘s marriage to Elaine, the circumstances surrounding her death, and appellant‘s arrest in connection with Elaine‘s death. A review of the trial testimony indicates that it was, indeed, limited to the areas of inquiry authorized by the Superior Court and was neither cumulative nor excessive. The trial court did not abuse its discretion by permitting the Commonwealth to introduce the precise evidence that the Superior Court order contemplated. Moreover, as noted above, the court‘s repeated cautionary charges concerning the limited purpose of the evidence served to minimize any potential for unfair prejudice.
Appellant makes a related claim that the trial court abused its discretion in permitting testimony exceeding the scope of the evidence deemed admissible by the Superior Court. Appellant argues that notwithstanding the Superior Court order, the trial court retained the obligation to exercise discretion regarding the evidence permitted at trial, to ensure its relevancy and probative value. Appellant claims that the trial court improperly admitted testimony from various witnesses that was cumulative and which essentially re-tried appellant for the North Carolina murder of Elaine during his Pennsylvania trial. For example, appellant points to witnesses Richard and Nancy Babica, Marianne Rochford, and Police Officer Brenda Vance as providing cumulative testimony regarding the circumstances of Elaine‘s death. A review of their testimony, however, illustrates that appellant gave inconsistent versions of how he discovered Elaine in the bathtub. Therefore, their testimony was not cumulative.
Appellant also complains that the testimony of Christine Cheek regarding Elaine‘s last will and testament was improperly admitted because it was irrelevant and because Cheek was not an expert as to the validity of wills in North Carolina. Appellant‘s counsel‘s only objection to this evidence was to Cheek‘s testimony regarding the validity of the will, specifically as to the effect of a witness‘s signature. Cheek did possess sufficient knowledge to testify about the effect of a witness‘s signature given her employment at the time of Elaine‘s death as a paralegal in the area of estates and trusts. Further, appellant‘s counsel subjected Cheek to extensive cross-examination on the subject of her knowledge of estates and trusts. The validity of Elaine‘s will was questionable because appellant had witnessed it which, under North Carolina law, operated to disinherit him because a beneficiary of a will cannot be a witness to the will.22 Because the
Appellant‘s third assignment of evidentiary error is that the trial court erred in denying a mistrial following the testimony of Elizabeth Maple. Whether to grant the extreme remedy of a mistrial is a matter falling into the discretion of the trial court. “A trial court need only grant a mistrial where the alleged prejudicial event may reasonably be said to deprive the defendant of a fair and impartial trial.” Commonwealth v. Jones, 542 Pa. 464, 668 A.2d 491, 503 (1995), cert. denied, 519 U.S. 826, 117 S.Ct. 89, 136 L.Ed.2d 45 (1996). Maple, who lived next door to appellant and Elaine in North Carolina, testified that Elaine twice told her appellant was going to kill her, once, a week before Elaine‘s death and again the day before her death. At one point in her testimony, Maple gave opinion testimony regarding Elaine‘s state of mind, characterizing Elaine as frightful, terrified and scared, rather than confining her testimony to what Elaine had told her. Appellant objected on grounds that this aspect of the testimony was speculative and opinion-based. The trial court sustained the objection, struck the testimony, and admonished Maple not to state such conclusions. Appellant moved for a mistrial, which the trial court denied, finding that the testimony had not risen to a level requiring a mistrial. In a sidebar discussion, the trial court warned the prosecutor to limit Maple‘s opinion testimony. The prosecutor promised to ask one follow-up question and move on, which he did. On this record, we are satisfied that the corrective measures taken by
Appellant‘s fourth claim of evidentiary error is that the trial court erred by admitting evidence of hearsay statements, made by appellant‘s then five-year-old son, as excited utterances. Maple testified that on the night of Elaine‘s death, appellant requested that she care for his three children while he accompanied Elaine to the hospital. Maple testified that appellant brought the children to her door at approximately 3:00 a.m. and she promptly put them to bed in her daughter‘s bedroom. The next morning, while Maple was feeding the children breakfast, five-year-old Todd said, “my mommy was screaming so loud last night I had to put my hands up over my ears. She wouldn‘t stop screaming, and I saw her in the bathroom holding her hands up, and daddy told me to get out.” N.T. 4/28/99 at 1495.
[A] spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person has just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties. . . . Thus, it must be shown first, that [the declarant] had witnessed an event sufficiently startling and so close in point of time as to render her reflective
In Commonwealth v. Pronkoskie, 477 Pa. 132, 383 A.2d 858, 862-63 (1978), this Court further held that there is no clear-cut rule as to the time sequence required for a statement to qualify as an excited utterance, but rather that fact-specific determination is to be made on a case-by-case basis.
Here, Maple testified that Todd‘s statement was made spontaneously and not in response to any question from her. It is certainly reasonable to presume that a five-year-old child‘s hearing his mother screaming would be a shocking experience. As to the delay in time, Todd was taken from his bed in the middle of the night and put to bed in his neighbor‘s home where he awoke early the next morning. While eating breakfast with Maple and his siblings, he stated, unsolicited, that he had heard his mother screaming loudly in the bathroom and his father told him to leave the bathroom. Given that the child spent the lapse in time sleeping, it is unlikely that his statement was affected by reflection or any outside influences. In addition, the evidence that Elaine had died in the bathtub corroborated that the child was in a position to see and hear the event that he related to Maple. Commonwealth v. Counterman, 553 Pa. 370, 719 A.2d 284, 299 (1998). Thus, the trial court did not abuse its discretion in finding that the statement was admissible as an excited utterance.
Appellant next claims that the trial court erred in refusing to allow cross-examination of Detective James Cvetic as to alleged prior acts of misconduct. The scope of cross-examination is a matter left to the sound discretion of the trial court, and the trial court‘s rulings will not be disturbed absent an abuse of discretion. Commonwealth v. Harris, 572 Pa. 489, 817 A.2d 1033, 1056 (2003) (citing Commonwealth v. Rizzuto, 566 Pa. 40, 777 A.2d 1069, 1081 (2001)). Here, appellant sought to introduce evidence that, in an unrelated 1996 homicide case, Detective Cvetic had failed to turn over evidence
Detective Cvetic testified that he did not submit the hot tub water sample to the crime lab in this case because he learned after taking it that appellant had drained and cleaned the hot tub between the time of Maryann‘s death and the time the sample was taken. N.T. 4/20/99 at 611, 614. The evidence which appellant sought to elicit on cross-examination was that a judge dismissed a 1996 homicide case due to inconsistencies in Detective Cvetic‘s response to being ordered to disclose the identities of confidential informants. Specifically, when the detective was ordered to disclose the identity of two informants, he disclosed one informant‘s identity and then stated that the two informants were actually only one person.
The Commonwealth maintains that the issue in the previous case was not one of dishonesty on Detective Cvetic‘s part but rather confusion regarding two separate reports recounting information received from confidential informants. Moreover, the Commonwealth notes that a police practice or policy concerning confidential informants says little about a practice of handling or testing physical evidence, much less does it prove that a police officer routinely mishandles investigations. The trial court did not abuse its discretion in ruling that appellant‘s attenuated theory did not alter the fact that the evidence he offered was collateral and irrelevant.
Next, appellant contends that the trial court abused its discretion by denying a motion to strike the testimony of Randy Erwin, appellant‘s fellow inmate at the Allegheny County Jail. Erwin testified that he kept notes of conversa-
At sidebar, the prosecutor informed the trial court that he was unaware that Erwin had provided any notes to the detectives. The detectives’ written report of Erwin‘s interview indicates that Erwin took notes but not that he provided them to the detectives. Even if it is assumed that Erwin‘s testimony proves that his notes in fact were turned over to detectives, we see no error in the denial of the motion to strike. This Court has held that the Commonwealth does not violate disclosure rules when it fails to turn over evidence it does not possess and of which it is unaware. Commonwealth v. Gribble, 550 Pa. 62, 703 A.2d 426 (1997).24 The trial court did not abuse its discretion in finding that the Commonwealth either did not possess the notes or was unaware that they existed and that, consistently with Gribble, the Commonwealth did not violate rules of disclosure.
Appellant‘s final evidentiary claim is that the trial court abused its discretion by permitting Randy Erwin to give opinion testimony as to appellant‘s demeanor when he stated that it was stupid to kill both of his wives in the same manner.
Appellant‘s next three assignments of error relate to the trial court‘s charge to the jury. Appellant first claims that he was entitled to a charge on voluntary manslaughter because the evidence would have supported a jury finding that the killing occurred in the heat of passion. Appellant contends that the scratches on his neck and the nick on his thumb are indicative of a physical altercation, possibly initiated by Maryann, that resulted in her death. The Commonwealth counters that the evidence in this case did not support a voluntary manslaughter charge.
“A defendant is entitled to a voluntary manslaughter charge only when the evidence adduced at trial would support such a charge,” Commonwealth v. Robinson, 554 Pa. 293, 721 A.2d 344, 353 (1999) (citing Commonwealth v. Browdie, 543 Pa. 337, 671 A.2d 668, 674 (1996); Commonwealth v. Williams, 537 Pa. 1, 640 A.2d 1251 (1994)), and where the offense has been made an issue in the case. Browdie. A person commits voluntary manslaughter when he kills another without lawful justification if, at the time of the killing, he is acting under a sudden and intense provocation by the person killed.
Appellant next claims that he was entitled to a jury instruction on involuntary manslaughter. The test here is the same as the test for the availability of a voluntary manslaughter charge, i.e., it is required only if the offense has been made an issue and the trial evidence would support it. Commonwealth v. White, 490 Pa. 179, 415 A.2d 399, 402 (1980). “A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.”
IV. Claim of Error Respecting Penalty Phase
Appellant raises a single claim of error relating to the penalty phase. Appellant argues that the trial court erred in denying his motion to quash the aggravating circumstance, i.e., that he had been convicted of another murder committed before or at the time of the offense at issue, because that circumstance arose as a result of the Commonwealth‘s violating a pre-trial order which had stayed appellant‘s extradition to North Carolina until the murder charge in Pennsylvania was resolved. We agree that this aggravating circumstance should have been quashed.
Shortly after appellant was arrested and charged with Maryann‘s murder, North Carolina authorities lodged a detainer and initiated extradition proceedings in order to try appellant for the murder of Elaine Boczkowski. Then Pennsylvania Governor Robert Casey issued an Executive Warrant directing that appellant be returned to North Carolina. The letter transmitting the Warrant to the Allegheny County District
On October 5, 1995, the Commonwealth filed its interlocutory appeal to the Superior Court from Judge Cercone‘s order granting in part appellant‘s motion in limine. Thereafter, on October 20, 1995, Deputy District Attorney W. Christopher Conrad of the Allegheny County District Attorney‘s Office “gave his permission” for the Allegheny County Jail to release appellant to North Carolina authorities for trial there on the charges arising from the killing of Elaine Boczkowski. The Commonwealth‘s action in this regard was unilateral; it never sought court modification of the stayed extradition order to authorize an immediate transfer of appellant. In accordance with DDA Conrad‘s directive, appellant was delivered to North Carolina authorities on October 27, 1995. On November 1, 1996, following a capital trial, appellant was convicted of the murder of Elaine Boczkowski in North Carolina and sentenced to life imprisonment. Six days later, on November 7, 1996, DDA Conrad filed a notice pursuant to
On March 26, 1999, following his unsuccessful attempt to avoid extradition from North Carolina, appellant filed a “Mo-
Appellant argues that Judge Durkin‘s order staying extradition was a valid one that was never lifted, vacated or modified by any court. Therefore, the District Attorney‘s Office had no authority to act in contravention of that order and transfer appellant to North Carolina before the Pennsylvania charges were disposed. Had appellant not been unlawfully transferred to North Carolina, the factual basis for the single aggravating circumstance would not have existed and appellant would not have been eligible for the death penalty. Appellant argues that the Commonwealth should not be permitted to benefit from its blatant violation of the stayed extradition order, and he should be afforded some remedy. Appellant concludes that quashal of the single aggravating circumstance and a concomitant vacatur of the sentence of death is the appropriate remedy because it would restore the status quo ante, i.e., it would place the parties back in the positions which existed before the Commonwealth‘s violation of the court order.
The Commonwealth does not dispute that its action in transferring appellant to North Carolina led to the creation of the aggravating circumstance it later relied upon to certify that this had now become a capital prosecution. The Commonwealth nevertheless argues that it did not engage in a “willful or intentional” violation of the stayed extradition order. This is so because there was a change in circumstances—appellant‘s having successfully moved to exclude certain Commonwealth evidence and the pendency of the Commonwealth‘s pre-trial appeal from the trial court‘s order excluding that evidence—which precipitated the Commonwealth‘s decision to transfer appellant to North Carolina. Because the Pennsylvania trial proceeding had “halted for a valid reason,” the Commonwealth argues, its returning appellant to North Carolina was reasonable. Furthermore, that action ensured that appellant‘s right to a speedy trial in North Carolina was not impeded by the appellate delay here.
This Court‘s power of review of a sentence of death is summarized in the Sentencing Code as follows:
(h) Review of death sentence.—
(1) A sentence of death shall be subject to automatic review by the Supreme Court of Pennsylvania pursuant to its rules.
(2) In addition to its authority to correct errors at trial, the Supreme Court shall either affirm the sentence of death or vacate the sentence of death and remand for further proceedings as provided in paragraph (4).
(3) The Supreme Court shall affirm the sentence of death unless it determines that:
(i) the sentence of death was the product of passion, prejudice or any other arbitrary factor;
(ii) the evidence fails to support the finding of at least one aggravating circumstance specified in subsection (d)[.]
(iii) Deleted.
(4) If the Supreme Court determines that the death penalty must be vacated because none of the aggravating circumstances are supported by sufficient evidence, then it shall remand for the imposition of a life imprisonment
sentence. If the Supreme Court determines that the death penalty must be vacated for any other reason, it shall remand for a new sentencing hearing pursuant to subsections (a) through (g).
Upon review, we find that this sentence of death cannot stand under Section 9711(h)(3)(i)‘s proscription against sentences that are the product of passion, prejudice or any other arbitrary factor. Our capital sentencing scheme encompasses two separate decisions, one governing eligibility and one governing selection. See Commonwealth v. Trivigno, 561 Pa. 232, 750 A.2d 243, 257 (2000) (Saylor, J., joined by Zappala and Cappy, J., concurring) (citing Tuilaepa v. California, 512 U.S. 967, 971, 114 S.Ct. 2630, 2634, 129 L.Ed.2d 750 (1994)).
In the eligibility determination, the statutory scheme must narrow the class of persons for whom the death penalty applies and justify the imposition of such penalty as compared to others found guilty of murder. See Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 554, 98 L.Ed.2d 568 (1988). One means of narrowing the class is by prescribing aggravating circumstances that must exist before the death penalty can be imposed, which serves to appropriately channel the sentencer‘s discretion. See Blystone v. Pennsylvania, 494 U.S. 299, 306-07, 110 S.Ct. 1078, 1083, 108 L.Ed.2d 255 (1990). The selection decision is implicated when the sentencer decides whether a defendant who is eligible for the death penalty should in fact receive that sentence. See Tuilaepa, 512 U.S. at 972, 114 S.Ct. at 2635.
750 A.2d at 258. In Pennsylvania, of course, the Sentencing Code narrows the class of eligible person through a list of specific aggravating circumstances. See
The Uniform Criminal Extradition Act,
The Commonwealth‘s after-the-fact explanations do not justify its violation of an existing, clear, and unambiguous court order. If the Commonwealth felt that circumstances had changed and warranted reconsideration or modification of that order to provide for immediate extradition, it should have sought that relief from the court. Such a procedure would have afforded appellant an opportunity to be heard and to challenge the request and would have ensured that a neutral judicial officer made the ultimate legal determination. It may well be that a motion to lift the stay would have been granted, given the change in circumstances represented by the delay occasioned by the Commonwealth‘s decision to appeal. But, that is not the point. When a governing court order exists, it is for the court and not a party to unilaterally modify or nullify that order. However intentioned, whether good or evil, a party is not authorized to ignore controlling court orders based upon its own view about the existence and effect of a change in circumstances.
An action or factor is arbitrary if it is not cabined by law or principle. See, e.g. Black‘s Law Dictionary 100 (Seventh Ed.1999) (defining arbitrary as, inter alia: “1. Depending on individual discretion; specif., determined by a judge rather than by fixed rules, procedures, or law. 2. (Of a judicial decision) founded on prejudice or preference rather than on reason or fact....“); Merriam-Webster‘s Collegiate Dictionary 59 (10th Ed. 2002) (defining arbitrary as, inter alia: “1: depending on individual discretion (as of a judge) and not fixed by law ... 2a: not restrained or limited in the exercise of power: ruling by absolute authority ... 3a: based on or determined by individual preference or convenience rather than by necessity or the intrinsic nature of something....“). The Commonwealth‘s action in this case was clearly arbitrary: it usurped the role of the tribunal assigned, in our system of separated powers, to determine whether the stay should be lifted. Moreover, in addition to violating an existing court order, the trial prosecutor‘s unauthorized conduct ultimately created the basis for the Commonwealth to newly certify appellant as death-eligible, and to convert what had been a non-capital prosecution into a capital one. By taking an unlawful action which led to the creation of an aggravating circumstance that did not exist when the court had ruled on extradition, the Commonwealth introduced an element of arbitrariness into the death-eligibility process. In such a circumstance, we are constrained to hold that this sentence of death, which depended upon that circumstance, was the improper product of an arbitrary factor.25 Consistently with the legislative mandate, we hold that the aggravating circumstance specified below should have been quashed and, because this was the only aggravating circumstance specified by the Commonwealth, we must vacate the sentence of death and remand
Having found appellant‘s claims of pre-trial and guilt phase error to be meritless, we affirm appellant‘s conviction for first degree murder. Appellant‘s claim of penalty phase error, however, compels us to vacate the sentence of death and remand to the trial court for imposition of a sentence of life imprisonment. Jurisdiction is relinquished.
Former Chief Justice ZAPPALA did not participate in the decision of this case.
Justice SAYLOR files a concurring opinion in which Justice NIGRO joins.
Justice EAKIN files a concurring and dissenting opinion.
Justice SAYLOR concurring.
I join the majority opinion, in all respects but the following.
I have greater difficulty than does the majority with the admission of hearsay evidence concerning Elaine Boczkowski‘s fear of Appellant in the months leading up to her death. See Majority Opinion, op. at 454-56 & n. 23, 846 A.2d 94-95 & n. 23. The question of admissibility implicates an area of this Court‘s jurisprudence that has been the subject of recent differences, namely, the relevance of a victim‘s state of mind in a first-degree murder case. Compare, e.g., Commonwealth v. Stallworth, 566 Pa. 349, 364, 781 A.2d 110, 118 (2001) (taking a broad view of relevance concerning a victim‘s perception of her deteriorated relationship with the accused in a first-degree murder trial), with Commonwealth v. Laich, 566 Pa. 19, 27-29, 777 A.2d 1057, 1061-62 (2001) (reflecting a narrower view concerning the relevance of victim-state-of-mind evidence). See generally Stallworth, 566 Pa. at 383-85, 781 A.2d at 130 (Saylor, J., concurring and dissenting). I note, however, that, even under the narrower view, evidence concerning a victim‘s state of mind may be relevant in limited circumstances, includ-
In this case, although early on in the trial defense counsel avoided a direct contention that Maryann Boczkowski died as a result of an accident, from the outset counsel challenged the prosecution as one-sided and unfair, claiming that “we will show you through very competent professional testimony that this case is not a homicide,” but rather, that “Maryann had serious health conditions which contributed to and caused her death.” N.T., Apr. 15, 1999, at 59-60 (defense opening statement). It became quite apparent from the circumstances of Maryann Bockowski‘s death, as well as the evidence developed throughout trial, and was ultimately confirmed in defense counsel‘s closing statement, that counsel‘s allusion to health problems encompassed alcoholism and associated physical conditions, see N.T., May 6, 1999, at 1907 (defense closing statement), and that the alternative to homicide that he was suggesting was accidental death due to drowning. See, e.g., id. at 1944, 1961. In light of the defense‘s theory of accidental death, which was shaped from the outset of the case, I agree with the majority that the trial court did not abuse its discretion in discerning relevance of the state-of-mind evidence in the Commonwealth‘s case-in-chief.1 Notably, as well, Appellant does not presently challenge the admission of the evidence under
Justice NIGRO joins this concurring opinion.
I join the majority opinion with respect to appellant‘s guilt, but dissent from the majority‘s decision to remand for imposition of a life sentence.
The Commonwealth requested a court order extraditing appellant, but asked this extradition be stayed pending disposition of the Pennsylvania charges “including sentence, if applicable.” Extradition Hearing, 2/15/95, at 3. At the hearing, defense counsel reviewed all the extradition paperwork and acknowledged it was in order. Counsel did not object to appellant‘s return to North Carolina and agreed to have the Pennsylvania charges disposed of first; the court granted the Commonwealth‘s request. Id.
After the trial court granted appellant‘s unrelated motion in limine, the Commonwealth filed an interlocutory appeal. There is no suggestion, much less evidence, that the Commonwealth filed this appeal in order to procure an aggravator. This appeal was necessary, as the trial court erred in precluding certain evidence which substantially handicapped the Commonwealth‘s case. See
The good faith representation of the District Attorney, an elected official and an officer of the court, was necessary for the appeal, and was alone sufficient to dispel the unwarranted accusation of arbitrariness. Still, it is worth noting that the Commonwealth was successful on appeal, but not until nearly 19 months after appellant‘s conviction in North Carolina. The nature of the appeal and the indeterminate amount of time it would (and did) take made it appropriate to release appellant to North Carolina, which was prepared to try appellant‘s case,
The real issue is not extradition, but the unilateral disregard of the stay. Had the Commonwealth moved to lift the stay, there appears no reason it would not have been granted—there was no real opposition by appellant to extradition beyond assuring the paperwork was in order. The trial court heard appellant‘s motion to quash the aggravating circumstance and concluded the extradition of appellant to North Carolina was based on a logical and sensible decision. Trial Court Opinion, 10/03/2000, at 9. The trial court saw nothing improper in the fact that extradition took place while the Commonwealth‘s appeal was pending in Pennsylvania. Id., at 27. Appellant never objected at the pre-extradition hearing, nor did he at the time he was transferred to North Carolina. The trial court did not find the action contemptuous. “[I]t is axiomatic that a court has inherent power to enforce its own orders ... and that this Court will not interfere with enforcement absent an abuse of discretion.” Commonwealth v. Shaffer, 551 Pa. 622, 712 A.2d 749, 751 (1998) (plurality) (citing Commonwealth v. Carson, 510 Pa. 568, 510 A.2d 1233 (1986)). The trial court reviewed the violation of its own order and failed to find any sanction necessary; I see no reason to second-guess its discretion.
Appellant‘s case in Pennsylvania was postponed for a valid reason and the Commonwealth‘s action was not “clearly arbitrary.” I do not sanction the Commonwealth‘s unilateral disregard of the stay, but it was a stay that the Commonwealth, not appellant, sought. Allowing the North Carolina charges to proceed expeditiously was the right thing to do. Speedy trial is a right inuring to the accused, not the Commonwealth, and delaying both trials for two more years was not the right thing to do.
Further, the remedy for violating a stay of extradition should not be vacating a valid penalty imposed by the Pennsyl-
Troy D. DOLAN and Karrie A. Dolan, His Wife, Petitioners
v.
PENTEX ENERGY, INC. and Westar Energy, Inc., Respondents.
Supreme Court of Pennsylvania.
March 30, 2004.
Application for Reargument Denied May 25, 2004.
ORDER
PER CURIAM:
AND NOW, this 30th day of March, 2004, the Petition for Allowance of Appeal is hereby granted.
It is also ordered that the order of the Superior Court quashing Petitioners’ appeal is reversed, and that this case is remanded to the Superior Court for further proceedings. Motorists Mutual Ins. Co. v. Pinkerton, 574 Pa. 333, 830 A.2d 958 (2003).