Commonwealth v. Crews

640 A.2d 395 Pennsylvania, Appellee, COMMONWEALTH of CREWS, Appellant. Paul David Supreme of Pennsylvania. Court

Argued May 1992. April

Decided 1994. Reargument May Denied 1994. Mifflintown, Manbeck, Jerry Philpott, Arthur V. Steven Duncannon, for appellant. Cramer, Stern, Atty., Daniel Atty.,

R. Scott Dist. Asst. Dist. appellee. for ZAPPALA, NIX, C.J., FLAHERTY,

Before and jj. cappy, and McDermott OF THE

OPINION COURT FLAHERTY,1 Justice. 9711(h) appeal

This is an to 42 pursuant § from Pa.C.S. a sentence of death on imposed Paul David following Crews trial in which jury he was convicted murdering two hikers Appalachian Perry on the Trail in County. The main issue is challenge to DNA evidence against admitted him hold at trial. We that evidence of DNA testing admissible claims appellant and that has raised no other that merit relief. 13,1990, hikers, morning Geoffrey In the of September two LaRue, Molly and killed at an overnight Flood were shelter on Appalachian Perry County. Trail in Miss LaRue had been tied, stabbed, in resulting raped, approximately death in Hood, minutes after stabbed Mr. being fifteen the neck. revolver, had shot three times boyfriend, her been with eight receiving five to minutes after the fatal shot died left chest. The victims had been southbound on the lower trail, murdered, they they and on the were had day before employees seen other hikers and several stores been they purchased supplies. where had Duncannon later, David arrested A Paul Crews was appellant week crossing Maryland River from West Potomac while charged with the murders. subsequently He was Virginia. entirely Witness- at trial was circumstantial. The evidence murders, had that two before days testified es Berlin, Pennsylvania, seeking map library East visited a later sought and had directions Trail Appalachian that he wore remembered nearer trail. Witnesses others bags red with a had two duffel military boots and black going him the trail observed logo. Others “Marlboro” that had wearing hiking gear was the crime. He after south he he apprehended, When to the victims. belonged the victims. belonged had numerous articles possessed possessed he handgun expert testified A ballistics Hood. He which killed Mr. weapon his arrest was the upon reassigned this author. 1. This case type blood it matched the knife blood on which had a with also at objects identified found witnesses of Miss LaRue. Other of the murders along or the trail south murder scene appellant. of resembling property or being Deadman, appel- that Dr. testified expert, An FBI DNA genetic of four loci matched DNA three patterns lant’s La- from Miss samples from semen patterns DNA obtained probability of such did not state a statistical vagina. Rue’s He Acton, chance; expert, defense Dr. by occurring a match showing a without statistical any criticized conclusion reached simply coincidental. the match was that murder, sentencing degree a jury verdicts of first Following A for the testified physician prosecution hearing was held. LaRue’s hands had evidence that Miss that there was medical presented The defense tied before she was killed. been and the prior had no convictions appellant evidence that appellant’s who described appellant’s employer presented habits. The defense also drinking work and person- that had schizoid appellant who testified psychiatrist syndrome ag- organic aggressive and from an ality suffered consumption gravated day killings by on the alcohol and cocaine. potential aggravating was instructed that jury

The Hood murder that the pertaining circumstances were robbery, of a that killing during perpetration occurred another, that appellant was risk of death to and grave there murder, murder. the LaRue was convicted another were submitted to the that the jury circumstances aggravating a rape, that the killing during perpetration occurred torture, that appellant committed and killing was mitigating murder. The circumstances convicted of another no killings were: that there were jury submitted to the both convictions; or under extreme mental prior appellant disturbance; capacity appreciate emotional substantially impaired; or his that he conform conduct was duress; any evi- mitigating acted under extreme other dence the character and concerning record the circumstances of his offenses. jury aggravating found all three circumstances in the murder,

LaRue and two circumstances in the aggravating conviction of grave Hood murder: risk of death to another and murders, jury another murder. In both the found that aggra- ones, vating any circumstances and outweighed mitigating verdicts of death. The court immediately returned sentenced to consecutive death sentences. This appeal two 9711(h) § 42 Pa.C.S. followed. pursuant Appellant pretrial challenging raises a issue the venue of prejudicial publicity together the trial due to with other issues penalty phases prosecu- to both the trial and pertaining they proceed- review his claims as arose the tion. We will trial, penalty hearing. then pretrial, first then ing: sufficiency of the evi begin by examining We the first as we degree, verdicts of murder of dence to sustain case, by the issue is not raised even when every capital do 16, Zettlemoyer, v. 500 Pa. 26 Commonwealth appellant. cert, denied, 970, (1982), 3, 937, 461 U.S. 454 A.2d 942 n. 3 n. denied, reh’g (1983), 2444, 463 U.S. 77 L.Ed.2d 1327 103 S.Ct. (1983). 31, applicable 1236, 77 L.Ed.2d 104 S.Ct. whether, in the viewing all the evidence review is standard of winner, a as verdict favorable to the Commonwealth light most a reason beyond of the crime every find element jury could Zook, 79, 85, A.2d 532 Pa. able doubt. standard, evidence with that keeping guilt. appellant’s established overwhelmingly tight a web circumstantial, wove the evidence Though a reasonable beyond guilt enough to establish of the crimes near the scene observed was Appellant doubt. identi Property killings. after shortly before shortly on the trail south found abandoned was as appellant’s fied south, had he further was arrested he and when corpses, as those identified positively items numerous possession in his clothing. their some of wearing even and was of the victims weapons: murder both possession in his had Appellant Miss LaRue. Hood and killed Mr. the knife which revolver semen that strong probability testing established DNA of appellant, LaRue was that body from the of Miss removed that the possibility definitely eliminated the testing and the Reese, suspect another Hood or Mr. was that Mr. semen suspicion. later cleared who was subject investigation, evidence, jury, if believed of this The cumulative effect doubt. beyond a reasonable guilt was sufficient establish claim that the is his by appellant The first issue raised in the change of venue by refusing grant court erred trial He claims publicity. overwhelming pretrial adverse face that in the case closely parallels in his case publicity that the Breakiron, 524 Pa. 571 A.2d of Commonwealth v. cert, denied; (1990), Pennsylvania, 498 U.S. Breakiron v. (1990) in this court held 224, 112 L.Ed.2d 179 which 111 S.Ct. so prejudicial, inherently publicity he prejudiced. Appel need not demonstrate how accused to his prior coverage a mere two months press lant states that “grisly,” revealed other trial characterized the events no (though he had of which stood accused crimes convictions), “official sources” extensively and credited other argues that a reporting appellant. about He for sensational period only two months was not sufficient of cooling-off publicity, contrast dissipate prejudicial the effect year” diluted the significantly the of “almost which period prejudice Breakiron. law a deci- governing

The Breakiron court summarized the trial requires regardless a new pretrial publicity sion whether any previously set forth Common- showing prejudice, Romeri, If the wealth v. 504 Pa. A.2d if it saturated the “inherently prejudicial,” and publicity if for commu- community, and was insufficient time the there a new publicity, from effects of the then nity cool down Breakiron, is 524 Pa. at 571 A.2d at 1037. required. trial is publicity inherently in establishing pretrial Factors whether include: prejudicial was, hand, publicity factual pre-trial

whether the one hand, or, objective, and on the other consisted sensation- al, inflammatory demanding and “slanted articles convic- ...; pre-trial publicity tion” whether revealed exis- record; tence of the accused’s criminal whether it prior confessions, referred to admissions or reenactments defendant; crime and whether such information is and product reports by police prosecutorial officers.

Id., Romeri, However, citing supra. established, our inherently prejudicial publicity

[o]nce has so exten- inquiry publicity next is “whether such been sive, community and so that the must pervasive so sustained finally, with it.” And be deemed to have been saturated if which inherently prejudicial publicity even there has been must also consider wheth- community, has saturated the we period signifi- which would cooling-off er there has been a publicity. effects of the cantly prejudicial dilute the omitted.) (Citations footnote Id. in this case was not so sensational

Though publicity Breakiron, include it did inflammatory as that described Assuming, arguendo, objectionable. were reports which reasonably it cannot inherently prejudicial, publicity extensive, perva- and so “so so sustained said that it was be The three saturated with it. community was sive” that the articles arguably inflammatory published newspapers which 6,500 in a papers less than circulation of a combined had 41,000 residents. of more than county noted the the court cooling-off period, respect With in Breakiron: following guidance cooling has been a sufficient there testing whether prospective investigate panel what a court must period, in ques- publicity exposure about its has said jurors cooling period of whether is one indication tion. This efficacy of Thus, determining in sufficient. has been of direct effects will consider a court cooling period, or allege prove. need a defendant something publicity, could be publicity that pre-trial conceivable it is Although of change a order might a court that damaging extremely so said about jurors prospective what no matter venue bias, that and without fairly hear the case ability to their Normally, prospective case. what be a most unusual would a will be ability impartial to be tell us about their jurors fresh is still so publicity whether the guide reliable ability objective. be removed their minds that it has their in this wide latitude judge given of the is The discretion trial area. n. 1.

Id., n. 571 A.2d at 1037-38 524 Pa. at 288 community enjoyed that clearly The record establishes appellant’s had a chance to cool before passion in which period objectionable that some emphasizes Although appellant trial. trial, before most only two months appeared articles eight months earli- occurred six to reporting sensational news voir dire cooling-off period lies The test of the er. of the trial the wide discretion jurors. Recognizing potential voir jurors during or impartiality evaluate the bias court to contention dire, appellant’s the record fails to substantiate to re- opportunity with his pretrial publicity interfered that The trial court’s impartial jury. fair trial an ceive a not an abuse discretion. conclusion to that effect was to a claim he entitled that was next issue is DNA test admissibility to determine the Frye hearing by a opinion given the DNA He also claims results. it did not prejudicial because unduly prosecution witness coincidence, argues and he give probabilities statistical to examine deny him a continuance it reversible error to the DNA evidence. evidence, types new produce scientific advances

When laid depends on the test first admissibility of such evidence States, F. Frye App.D.C. down United (1923): line discovery or crosses the principle when a scientific Just stages diffi- experimental and demonstrable between twilight in this zone the eviden- cult to define. Somewhere recognized, and while principle tial force of the must be way admitting expert go long courts will well-recognized or dis- principle deduced from scientific be is made must covery, thing from which deduction 518

sufficiently established to gained have general in acceptance the particular field to which belongs. it Frye test was adopted by this court in Commonwealth v. Topa, 223, 231, (1977) 1277, 471 Pa. 369 A.2d 1281 (spectro- grams yet had not become generally accepted by scientists in field, opinion and evidence of the voiceprints defendant’s inadmissible), was therefore Com- and has in been followed Nazarovitch, monwealth v. 97, 101, 170, 496 Pa. 436 A.2d 172 (1981) as a (hypnosis forensic tool was not generally accepted authorities, and reliability hypnotically-refreshed established, testimony was not so testimony such was not Dunkle, admissible); Commonwealth v. 168, 173, 529 Pa. (1992) 830, A.2d (uniformity reliability of “child sexual syndrome” abuse was not in generally accepted the field of psychology, so it was error to permit expert testimony based Zook, Commonwealth v. on syndrome); 98-100, 532 Pa. at at 11-12 (analysis by electrophoresis enzymes A.2d of the generally accepted dried bloodstains is as reliable among experts serology, testimony in the field of forensic so as expert admitted).2 enzyme testing properly case, appellate argument in 2. After the trial and after this the United Supreme viability Frye States Court addressed the test as a rule Pharmaceuticals, Inc., of evidence. Daubert v. Merrell Dow 509 U.S. -, 2786, Daubert, 113 S.Ct. 125 L.Ed.2d the Court admitting expert upon to determine the standard for "called Id.., at-, testimony at scientific in a federal trial.” 113 S.Ct. Construing 125 L.Ed.2d at 476. Federal Rule of Evidence Frye general acceptance reliability Court held that standard — community superseded by adoption the relevant scientific —was Evidence, which make all relevant evidence the Federal Rules of at-, admissible, general. 125 L.Ed.2d at Id. 113 S.Ct. at 479. case, Thus, holding does not affect this as the the narrow of Daubert determining admissi- are not authoritative Federal Rules of Evidence Moreover, although Frye bility in this case. of the DNA evidence courts, binding Pennsylvania we neverthe- on decision of 1923 was not evaluating way novel scientific adopted Frye as a useful less test See, Topa, Pennsylvania e.g., Commonwealth v. law. evidence under 231-32, at 1281-82. 369 A.2d 471 Pa. at somewhat, relaxes, impediments of novel to admission Daubert Daubert, ad- expert scientific Under scientific evidence. First, must relate to "scientific criteria. it if it fulfills two missible evidentiary reliability,” establishing knowledge,” thereby “a standard validity.” scientific upon To constitute "will be based scientific which court’s he characterizes the trial attacks what Appellant the court’s objects Frye hearing, hold a failure to to estab- jurisdictions from other judicial decisions reliance DNA of community’s general acceptance lish the scientific of days two first the trial court heard testing. We note medicine, ge- in forensic biochemical experts from testimony as netics, chemistry, qualified all microbiology, organic and characterized analysis, might in which be DNA experts on the testimony this and hearing. expert Based on Frye overwhelming majority of DNA in the evidence acceptance the admission the trial court allowed jurisdictions,3 American court charac- trial. The trial appellant’s of DNA evidence at notice, heavy to its judicial as one of due terized its decision jurisdictions. other of DNA evidence acceptance reliance on of acceptability in its review The trial court was correct community in and in American testing the scientific DNA grounded proce- the and knowledge, must be in methods the evidence science, subjective unsupported belief or on more than dures of based supported by appropriate validation based what speculation, and relevant; it is that the evidence must be known. second criterion the evidence or to determine assist the trier of fact to understand must Daubert, 2794-95, at-, L.Ed.2d at 113 S.Ct. at a fact in issue. trials, longer, consti- acceptance” will no in federal “General 480-81. determining admissibility necessity in of scientific a threshold tute evidence, determining in though it a factor to consider admissi- remains methodology technique or can be bility. Other factors are whether testability.” “falsifiability, refutability, or or has been tested: its or theory technique been is whether the or has Another consideration peer publication. A also consider subjected to review and court should error, potential and the existence and maintenance known or rate of -, technique's operation. controlling Id. at of standards 2797, 125 L.Ed.2d at 483. S.Ct. at Evidence, Daubert, interpreting applying the Federal Rules of and analysis of in this case. Whether or not control our DNA evidence does supersede modify Frye in or test the rationale Daubert will not Pennsylvania day. is left to another Work,” Science, Utility December Typing "The of DNA in Forensic 3. See (“By slates and 1990 more 2000 U.S. court cases than purposes [identifi- DNAtests for such the District Columbia had used Justice, Department suspects],” citing Office of criminal U.S. cation Statistics, Analy- DNA Programs, of Justice Forensic of Justice Bureau (Government Office, D.C., 1990); Washington, Printing U.S. Issues sis: Assessment, Technology Congress Genetic Witness: Forensic Office Tests, Office, (Government Washington, Printing DNA OTA-438 Use of D.C., 1990). courts of many jurisdictions. It is not necessary to detail here what has been in. explicated numerous scientific articles and in judicial many opinions, as well as expert pretrial hearing on DNA in this case. say Suffice to that the processes scientific carried out in a laboratory to compare samples DNA are now routine fidly accepted Indeed, scientific community. expert, DNA Dr. Acton, testified substance that DNA typing was a generally accepted technique identity for testing. What has not yet achieved universal agreement objective is the less selection of the appropriate population for statistical purposes analysis actual statistical applied which is to be to the physical analysis carried out in laboratory. About the statistical treatment of physical evidence there disagree- remains ment and continuing theoretical development. short, scientists are almost certain to agree, assuming laboratory

competent technique, that two DNA do or samples loci, given alleles, do not match at a number of critical called generally accepted physical testing based on procedures. is not is what universally agreed validly What conclusions can be from the matches observed in samples. drawn in analysis, general-

The relevance of the DNA criminal law case, ly, identity and in the context of this is to establish the source of a DNA discovered at a crime scene. If sample sample the DNA from the crime scene matches the DNA of an accused, it is at evidence that the DNA discovered at the least If sample crime that of the accused. the DNA scene is else, it, of the accused and no one then matches DNA course, conclusively establishes that the accused is the source of the crime. This distinction of the DNA found at the scene of the match probability is in terms of statistical expressed A expert might in the DNA occurring randomly population. only match will occur once a that a DNA testify given makes 10,000,000. probability such a Obviously, population the same samples DNA came from likely it that the highly however, a is that testimony, If DNA expert’s source. one coincidentally every once might match occur given establishing then it is far weaker samples, hundred same being as one and the samples of the DNA sources individual. to be drawn

Thus, in the inferential conclusion terms of as source in a criminal trial —the accused DNA evidence from analysis found at the crime scene —DNA sample the DNA e.g., is there only probability; can statistical generally provide in four million that or one chance chance in four hundred one Conversely, a from someone else. sample DNA came and certain scientific conclusive DNA mismatch constitutes from different sources. samples come the DNA proof however, iden- disproving identity, opposed proving For absolute, even proof, conclusive provide DNA tity, can never match of a coincidental extremely low though probabilities identity. strong a inferences very basis for provide analysis upon physical which follows analysis statistical disagree, experts may which variables about subject re- provide which different of several admitting approaches words, analysis, about which physical same sults. other sever- experts from different might produce agree, all experts proba- the statistical conclusions about different numerical al different races example, a match. For bility of random measurably ge- different groups ethnic demonstrate different case, then, statistical In a given netic characteristics. upon depending match will differ of a coincidental probability beings human or includes all population whether the random given of a race consisting subpopulation is limited instead case, evidence Depending on the given group. ethnic or to a should sometimes be limited population the statistical This beings. human variable than that all sample smaller by reached differ- for different conclusions may factor account for factors also account Similarly, geographical experts. ent subpopulations. in genetic various different characteristics the ultimate analysis in will affect variables a statistical Such Moreover, there ex- experts. different conclusions drawn definitive, genetic charac- single standard data base ists no In- against samples DNA are measured. teristics which all stead, the char- compare samples different their with experts

522 acteristics in bases, demonstrated different data in resulting different numeric conclusions as to statistical probability.

These in developments the use of analysis DNA as a forensic tool affect this case as follows. Physical examination of DNA in samples order to identify matches at various alleles well-recognized is a and widely accepted scientific phenome non, within the Frye. This is evident from the meaning literature, both scientific and jurisprudential, and from the testimony of the DNA experts this case. accept We trial court’s holding that such evidence is admissible. On the hand, other the record this case support does not conclusion analysis that the statistical after (applied physi cal testing) similarly widespread has achieved acceptance the scientific community.4 in this solely

The DNA evidence case consisted type testimony regarding procedure former and results — Deadman, FBI physical testing samples. Dr. expert, matching profiles DNA testified that he found at three loci, of four and that the fourth was inconclusive. He stated results, from samples that with these the DNA taken “extremely strongly crime scene were associated with experi- DNA from the defendant.” He elaborated that community, he laboratory ence of the entire forensic science individuals single did not of a instance “where different know matching have been shown to have DNA that are unrelated type three or four The second of evi- profiles probes.” for major objective analysis of DNA evidence remains a 4. Statistical analysis may be that the standards for statistical forensic scientists. It test, Frye among experts satisfy the sufficiently accepted are now Jakobetz, F.Supp. E.g., v. 747 so held. United States some courts have State, (D.Vt.1990); (Ala.Ct.Crim.App.1990); Perry 586 So.2d 236 v. 250 State, (Fla.Dist.Ct.App.1988); v. Pen- State 533 So.2d 841 Andrews v. Castro, 89, (1990); People v. 144 S.E.2d 847 nington, 327 N.C. 393 State, 956, (1989); 544 v. 787 S.W.2d Glover Misc.2d 545 N.Y.S.2d 985 Commonwealth, 240 Va. 393 S.E.2d (Tex.App.1990); Spencer v. (1989); Woodall, (1990); Cald- W.Va. 385 S.E.2d State v. Pennell, State, (1990); State v. S.E.2d 436 260 Ga. well merely record com- that the (Del.Super.Ct.1989). We hold A.2d 513 satisfy Frye, evidence sufficient piled in case does not include this might result. Frye hearing reach a different though exhaustive an not stating probability numerical dence—conclusions —was at trial.5 presented above, to be drawn it is the conclusions

As we stated regarding to date information accumulated from the statistical acceptance widespread that has not achieved DNA matches words, meaning community. In other the scientific within found samples DNA and the defendant’s a match between a is not scene, large, at population in relation to at a crime to enter properly trial court refused known. Therefore expert, the match. The regarding information statistical tain of three out however, to that the match testify was permitted sperm not more than that probable four loci made it opinion type expert This that of the defendant. admit Frye, properly and thus was not violate testimony does ted. the physical

Appellant objects presentation sharpen analysis analysis without statistical of the portion evidence, results physical test arguing the focus disagree. We without statistical conclusions. meaningless are probative on value. Admissibility depends relevance 830, Dunkle, 168, 177, 602 A.2d v. 529 Pa. Commonwealth (1992). if logically it tends establish “Evidence is relevant case, more or to make a fact at issue fact in the tends material inference or presump a reasonable probable, supports less or of a material fact.” Common the existence regarding tion (1992); 1, 8, 533 Pa. 617 A.2d Spiewak, v. wealth 322, 325, 531 Pa. 612 A.2d Foy, physical testing of the The factual evidence of the alleles, matching even without statisti samples DNA and the conclusions, appellant’s presence more cal tended to make evidence, it have been without the and was likely than would relevant, To be evidence need be therefore relevant. meaningfulness Asked to evaluate the evidence conclusive. without an statement of statis- accompanying of a DNA match Deadman, testing suggested probabil- The conclusion of Dr. that the 5. being ity approximately one in coincidental match as trial, hearing, either preliminary at but not stated at offered or direct cross-examination. tical probability, appellant’s expert DNA such testimo- likened “I ny saw a blue run Chevrolet over this dog.” Identifying the car as a blue Chevrolet does car, useful, specifically identify the but it is offending admissi- relevant, ble identification evidence. In the way, same the inconclusive, though DNA evidence was admissible in this case; weight persuasiveness properly its were matters for jury to determine. to the DNA is

Appellant’s challenge final evidence his granted assertion that he should have been a continuance to He independent testing samples. conduct his own the DNA expert’s testing completed that his after the trial alleges results, no trace produced “contradictory” expert as the found sperm in the swabs from the victim. grant decision to a continuance lies The judge the trial and will not be disturbed sound discretion of v. Metz Commonwealth that discretion. absent an abuse of (1982); Common 678, 682, 981, ger, 498 Pa. 450 A.2d 983-84 536, 541, DiPasquale, wealth v. 431 Pa. 246 A.2d continuance, (1968). have the denial of a we reviewing as the justice as well orderly for the administration regard adequate prepare to have time to of a criminal defendant right Inc., Moore, v. Fischbach and States his defense. See United (3d 1029, 105 Cir.1984), cert. den. 470 U.S. 1183, 1195 750 F.2d see also Commonwealth (1985); 84 L.Ed.2d 785 S.Ct. Scott, 365 A.2d 140 469 Pa. continu grant a mid-trial court refused

The trial it would Appellant represented for several reasons. ance of the analyses independent to conduct considerable time take jurors exposed have would lengthy continuance a samples; the defense Ultimately, trial. surrounding the publicity samples, receiving after weeks testing six its completed delay of the totally inappropriate produced have which would his completed Acton, expert, the defense Dr. trial. When conclusive unable to obtain he was samples, testing of the But, far samples. degradation partial due to results went, tests, they far as so excluding appellant, from hold that FBI We therefore results. corroborated denying appel- its discretion properly trial court exercised for continuance. request lant’s that the Com contention

The next issue cir timely aggravating give notice monwealth’s failure to Rule 352 him a trial. Pa.R.Crim.P. fair cumstances denied defendant that, arraignment, time of requires at the circum any aggravating notice of given case be written capital submit at the sentenc intends to stances the Commonwealth give required failed ing hearing. doing only so arraignment, of appellant’s at time notice rule, in the The intent of the as stated days before trial. three thereto, defendant sufficient time and give is “to comment hearing.” for the prepare information to concluded, contends, and the trial court The Commonwealth potential aggrava- of the at all times aware appellant circumstances, by in prejudiced any way the ting and was not written notice aggravating circum- failure receive hearing. sentencing at the intended to be submitted stances appellant was notified that arraignment, At time The aggrava- death penalty. would seek the Commonwealth in were: the Hood murder ting circumstances submitted 9711(d)(6), § (robbery), 42 Pa.C.S. felony perpetration of 9711(d)(ll), another, homicide, § endangering and double 9711(d)(7). were § circumstances inherent aggravating These aggravating circum- against appellant. The charges homi- murder were: double submitted in the LaRue stances cide, 9711(d)(ll), felony (rape), § of a perpetration 9711(d)(8). torture, § 9711d(d)(6), exception With the § and charges torture, evident from the circumstances were on the jury was submitted against appellant; torture been bound Miss LaRue’s hands had basis of evidence that killed, apparently posses- before she was evidence arraignment. the time of sion of the Commonwealth at non-compliance with trial that despite court reasoned 352, aggravating notice of all Rule had constructive appellant possible excep- jury, circumstances submitted with the 526 torture,

tion and was not As to prejudiced any way. torture, the Commonwealth cannot and need not provide notice of circumstances unknown the Commonwealth. trial, provided shortly Written notice of torture was before prior sentencing hearing, appellant three weeks any prejudice failed to demonstrate due to the lack of notice for in Rule 352. provided as analysis Noncompli- with the of the trial court. agree We subject appro- Rule 352 will the Commonwealth to ance with might depend those sanctions be will priate sanctions. What cases, In exclusion of circumstances of each case. some on the others, In a continuance might appropriate. be evidence to a defendant. other prevent prejudice suffice to might cases, this, from lack of prejudice no has resulted such continuance, the trial notice, by even a denied written court, in the circumstances. We unnecessary found to be in denying discretion court’s exercise its find no error Rule 352 violation. for the requested appellant the relief have that a mistrial should Next, argues investigator, prosecution the chief when granted been witness, referred to primary Commonwealth’s Greenfield, v. Wainwright cites Appellant silence. post-arrest 623, 634, 638, L.Ed.2d 284, 291, 106 S.Ct. 474 U.S. 583, Turner, 579, 454 A.2d 499 Pa. (1986); v. Commonwealth Pa. Easley, 483 (1982); v. Greco, Pa. (1979); and Commonwealth A.2d 1198 (1976), alleged his authority for 826, 827 as 403-04, A.2d 350 was challenged new trial. The to a entitlement to back transported who officer police given who testified Virginia, his arrest West after Pennsylvania follows: Howell, another to make occasion, Trooper have you Did

Q in time? later point area at Virginia to the West trip Yes, I A did. that for? was

Q purpose What

527 back to [sic] decided to wave extradition A Mr. Crews had En- Trooper Link and Pennsylvania. Trooper Myself, him to transport Pennsylvania. to back went down gle Mr. speak Crews? Q you Did at time block, he taken out of the cell brought A When he if Link and Trooper I’m sure into a small room. I they me or not. room with think Engle were him to him. He rights for were. I read the Miranda until talked to me want to talk to me he told he didn’t if I X the area just I asked him out attorney. an then his says waiving it Constitutional in the form where he’s rights given have been to indicate that his Rights, just form, him, it, signed Casey he David then Horn. added.) contends, exchange, appellant This brief

(Emphasis post-arrest to his silence violation improper reference made Turner, v. supra. of Commonwealth Turner, of prohibition reference explained In this court its to an accused’s silence: disposi a strong this Court that there exists

The view of view the exercise of the jurors tion of part lay guilt is well as an admission privilege Amendment Fifth 610, Pa. Singletary, v. 478 established. See Commonwealth Greco, 656, (1978); v. 465 612, 387 A.2d 657 Commonwealth A,2d (1976); 400, 826, v. 404, 828 Pa. 350 Haideman, 765, A.2d Pa. Haideman, we stated: supra,

Commonwealth v. if most recognize naive we failed “We would be privi- Fifth Amendment an assertion laymen view v. badge guilt.” [404 as a United States lege Walker (5th Cir.1968], privi- ... clear that “[t]he F.2d 900 It is be to a against self-incrimination would reduced lege equiva- if could be taken as mockery hollow its exercise pre- or a conclusive guilt lent either to confession of Ed. sumption Higher Slochower Board perjury.” 637, N.Y. U.S. L.Ed. [350 692] S.Ct. [(1956)]. Haideman,

Commonwealth v. 449 Pa. at 296 A.2d at (citations omitted). Id., 582-83, 499 Pa. at at 539. against A.2d The rule reference post-arrest to a defendant’s silence to clearly relates jurors’ inferences from such silence. The. rationale is that jurors expect person an innocent with charged deny a crime to guilt. Thus the context of a defendant’s silence is critical to analysis an prejudicial effect reference thereto. challenged testimony The concerned the to journey officer’s Virginia to. extradite The appellant. West concern was wheth- or not rather than of a investigation er to waive extradition Appellant interrogation, crime. was not under and there was any relating reason for no whatsoever him to make statement short, Mr. Hood In the to the murders of and Miss LaRue. jurors equate context was not one which would invocation Amendment rights guilt. with an admission of implicit Fifth factual vastly involve The cases cited different Greenfield, v. Wainwright swpra, In the de- circumstances. police for sexual just battery, fendant had been arrested him the After read- question wanted to about crime. officers ques- him warnings, they his asked to answer ing Miranda6 do, he to talk to tions, stating wanted which he declined to the response officers’ about his attorney. an Fifth violate the defendant’s Miranda warnings was held to Turner, supra, v. Commonwealth rights. Amendment defendant, self- testifying that he shot victim after defense, he had ever by the whether prosecutor was asked As exculpatory version events. police this told his police, made a statement had never defendant the time throughout his silence would have revealed answer exculpa- to make an expected have been might frame when he his held this silence was Again, reference tory statement. Easley, Similarly, unconstitutional. be done shooting testified that supra, the defendant incident explained he had not but that self-defense to com- prosecutor permitted court and the trial police, Arizona, 86 S.Ct. 16 L.Ed.2d 384 U.S. 6. Miranda v. objection, during closing argument, timely ment over silence, infer clearly implying jury could defendant’s Turner, This, his silence. as in was held guilt protracted from Greco, in- v. supra, to reversible error. Commonwealth be being testimony arresting of the officer that after volved the did not rights informed of constitutional defendant his statements; to police while the wanted any make this occurred he The him the crime for which was convicted. question about testimony impli- carries the “necessarily court stated that such his deny failed cation that the remained silent and to appellant guilt.” an admission of implies involvement. Such Id., Thus, in Pa. at 350 A.2d at 828. each cases, to a while under reference was made defendant’s silence for for he was investigation the crime which interrogation or in jurors might which later convicted under circumstances person deny an innocent to his involvement reasonably expect prejudice in The to such defendants is obvious. the crime. different. entirely situation was Appellant’s committing a not with an accusation of was faced Appellant extradition, famil- procedure not He was faced with crime. citizens, legal in to most one which the desire seek iar to facing Anyone to people. counsel would seem reasonable most explain procedure, to attorney want an might extradition alternatives, any regard without consequences, its his no There could be purpose the ultimate of the extradition. investigation no guilt there was criminal inference because a state- attempt by police to solicit progress, any nor totally was unlike that appellant. implication ment from The if Easley, where defendants were asked supra, Turner police, to the they explained exculpatory ever circumstances time, charged failing, long period thus with over and were involvement; their here deny explain or the reference only during process. one the extradition moment challenged testimony

Any arguable impropriety error, which defined would also have been harmless we have as follows: con- only appellate

An error harmless if the court is that harm- beyond vinced a reasonable doubt the error is less. An error cannot be held harmless the appellate unless court determines the error could not have contributed to the verdict. Whenever is a there possibility reasonable that an might conviction, error have contributed to the Thus, error is not harmless. “for a reviewing court to harmless, conclude an error is it must be convinced beyond a reasonable doubt that the error did not contribute to the verdict.” The burden of establishing that an error is beyond harmless a reasonable doubt rests the Com- with monwealth. Rush, 498, 503-04, Pa. 605 A.2d (1992) (citations omitted; in original). Refer- emphasis

ring Virginia silence when extra- facing West doubt beyond dition was harmless a reasonable and could physical have contributed verdict. evidence arrested, against overwhelming he was —when victims, wearing carrying belongings, of the their clothing was had both possession weapons. Any speculation of murder negative a inference have been from his might that drawn would procedure the extradition be swallowed during silence jurors have up possibility might negative in the that drawn a at In testify failure to his trial. inference from fashion, that neither appellant’s jury was instructed standard the jury charge included inference The permissible. was in every defendant criminal following: entirely up “It is to the right an to He has absolute testify. trial whether or not You must not on to remain silent. founded the Constitution the fact that the defendant any guilt of from draw inference doubt beyond a not are convinced reasonable testify.” did We events not contrib- Virginia to the West did that the reference ute verdict. discovery denial of with argues next that

Appellant Reese, deprived Michael suspect, to erstwhile respect another discovery during pretrial Appellant a learned him of fair trial. testing from Mr. Reese for drawn blood had investigators that LaRue the Hood and investigation the in connection with for addi appellant’s request court denied murders. The trial Reese suspected Mr. why police learn the discovery tional to

531 argument his Appellant a test. bases enough to conduct blood Redmond, Pa.Super. rationale of Commonwealth on the dismissed, (1990), Pa. appeal 577 A.2d Redmond, Court affirmed Superior the A.2d 190 to Commonwealth’s failure ruling court’s the the trial informant would result identity the of a confidential disclose investigator, chief to whom suppression of holding predi- This given information. the informant had 305(B)(1)(a), disclo- mandating the upon cated Pa.R.Crim.P. to the accused any “evidence favorable sure of ” The guilt to or to punishment.... which is material either case, murder involving prosecution facts of the a unusual investigation reopened on an years killing, after the based concededly informant years inactivity, after 17 in which an accused, than the suspect had information other supplied finding of the informant supported identity favorable to accused.” “evidence this The Redmond authority holding carry does court, nor extend to Superior holding does Court’s Appellant information in this case. requested the Redmond much, extension recognizes urges but about who Mr. Reese was rationale include “information him his why suspected enough send blood police that of decline along [appellant].” the lab with We 305(B)(1)(a) interpret require disclo- opportunity to Rule by investigators lead every sure of fruitless followed suspects of other is not “evidence crime. mere existence accused,” expectation presumably favorable to the but is exception. investigative followup than Nor does rather lead, that comparison, presumption blood raise by is suspect’s identity another evidence favorable to accused is or court guilt punishment. which material trial requested disclosure of the information due properly denied benefit appellant’s failure show how disclosure would it defense and how was material. to a argument final is that he was entitled

Appellant’s not requested that intercourse post-mortem instruction rape; he that give claims failure to the instruction warrants

532 Sudler, on Commonwealth v. 295, Relying new trial. 496 Pa. 1376, (1981), 302-03, appellant argues 436 A.2d 1379-80 of evidence of the time of intercourse absence made the re- sequence surrounding events murders mandatory. instruction quested the law charge jury upon The trial court need not facts; must applicability presented has no to the there which and the presented between the evidence relationship be some Commonwealth requested. an instruction is upon law which Tervalon, (1975); Commonwealth 581, v. 463 Pa. 345 A.2d 671 cert, (1984), 589, 483 A.2d 895 v. Pa.Super. 334 Santarelli (1986). denied, 1973, 90 L.Ed.2d U.S. S.Ct. no in the case which tended absolutely There was evidence It occurred after the victim’s death. intercourse prove request refuse the for the trial court to proper was therefore ed instruction. our under Pa.C.S. duty with comply

We now 9711(h)(3)(iii) from the stand sentences of death § to review in similar cases. imposed to sentences point proportionality at 454 A.2d at 961. Zettlemoyer, v. 500 Pa. Commonwealth light imposed sentence have reviewed the We the Administra and monitored compiled sentencing data Pennsylvania Courts. See tive Office There is 428, 443, A.2d 707-08 Frey, 504 Pa. Fur imposed. in the sentence disproportionality no excess or that the any basis for belief ther, provide not the record does or passion, prejudice “product of death was sentence 9711(h)(3)(i). § 42 Pa.C.S. factor.” See arbitrary any other affirmed. must be the sentence Accordingly, affirmed.7 of sentence Judgment in the PAPADAKOS, JJ., participate did LARSEN this case.. or decision consideration to transmit is directed Supreme Court Prothonotary of the 7. The l(i). § 971 42 Pa.C.S. in this case. complete record Governor J., of this McDERMOTT, did in the decision participate not case.

CAPPY, J., opinion. a concurring files CAPPY, Justice, concurring. join majority,

I in the with one opinion the offered myself portion I from that of the exception. must disassociate expert of which the Commonwealth’s witness opinion approved not the offering opinion his as to whether or semen personal “probably” at the crime scene were those samples discovered defendant, (slip opinion). I my objection In order nature of precise to illustrate the opinion dealing the briefly majority will discuss the section of testimony analysis. the on DNA admissibility expert with generally DNA ac- majority testing The concludes that prosecutorial in community proper cepted the scientific that, agree. although I further concludes majority tool. The generally accepted the testing the have been procedures dissension within community, there is considerable scientific Everyone results. community interpretation the the interpretation the scientific evidence agree can exclusion, problem i.e., do not match. The samples which match at samples being occurs when the examined do certain Therefore, referred loci. generally markers to as significant no majority general accep- that because there is the concludes community interpreting tance as to results scientific match, DNA court properly where certain markers the trial testimony utilizing proffered expert excluded the matching Frye loci under statistical evaluation United States, (D.C.Cir.,1923). I agree.1 293 F. 1013 majority’s

It is with final I conclusion that take issue myself. Having that a and disassociate concluded statistical having not analysis agreed upon was inadmissible as been general community, majority goes scientific on to regarding admissibility 1. For more detailed of DNA information Judicature, see, 76 No. Vol 1993 "DNA evidence: how reliable?” analyze testimony of the expert on the relevancy.2 basis of majority concludes that trial court did err permitting expert the that a match testify likely was more than not under the facts circumstances I of this case. cannot accept by the rationale offered the nor can I majority, condone the circumvention of utilized Frye by majority. the Although found majority expert testimony, the the as to the inclusion, of probability Frye, statistical inadmissable under they nevertheless went to find the admissible testimony relevancy, under a standard.

In my Frye requires, precedent view as a condition to the admissability expert testimony, that the basis scientific testimony accepted general from which the stems be in the My community. independent scientific search of the record expert testimony to indicate here nothing reveals that in the communi- generally accepted have scientific would been offered, testimony although important, ty. Equally statistics, is more verbiage nothing rather than couched mind, my a In a statistical likelihood. than casual recitation minimum, means, it 51 not” at that “more than likely there is match. that percent likely lay foun- proper the Commonwealth failed Accordingly, into evidence testimony as admitted regard dation with demonstration, re- no as There was against defendant. more that it was by expert’s opinion, that the Frye, quired match, acceptance general has in the gained than likely not this that condition community. Lacking precedent scientific and, therefore, I disasso- excluded testimony have been should opin- by majority adopted the rationale myself ciate from ion on this point. however, record, demonstrates of the

A further review error, it clearly evidence this although the admission overwhelming evidence light of the harmless error. samples since the semen testimony by expert was that specific 2. sample at defendant’s semen matched the at scene found the crime loci, sperm at the opinion personal his it was out of four three that of the defendant.” probable not "more than scene was crime 523). p. (Majority opinion at I that the admission this am convinced guilt, Story, Pa. new trial. Commonwealth v. requires a 383 A.2d

Thus, majority’s opinion other as join I all facets specifically only result and write address well application majority regarding reached conclusion Frye the facts of this case. A.2d Daniel IACONO (CHESTER APPEAL BOARD COMPENSATION WORKMEN’S Group). and PMA AUTHORITY HOUSING Group. PMA Appeal and of CHESTER HOUSING AUTHORITY Pennsylvania. Supreme Court of Argued April 1994. April

Decided 1994. Creamer, Jr., Bilotti, appellant. J. Shane for Anthony J. Girton, Arthur for Daniel Iacono. G. for Haigh,

Norman R. W.C.A.B. ZAPPALA, NIX, C.J., FLAHERTY, Before MONTEMURO, PAPADAKOS, CAPPY, JJ. CASTILLE

Case Details

Case Name: Commonwealth v. Crews

Court Name: Supreme Court of Pennsylvania

Date Published: Apr 21, 1994

Citation: 640 A.2d 395

Docket Number: 94 M.D. Appeal Docket 1991

Court Abbreviation: Pa.