COMMONWEALTH of Pennsylvania, Appellee, v. Beth Ann MARKMAN, Appellant.
Supreme Court of Pennsylvania.
Decided Feb. 21, 2007.
916 A.2d 586
Argued May 11, 2004. Re-Submitted Nov. 21, 2006.
Based on the foregoing, I conclude that in the circumstances presented, the Policy‘s set-off provision offends public policy and hence, cannot be enforced. Accordingly, I would uphold the Superior Court, and affirm its Order.
Jill Michelle Spector, Esq., National Clearinghouse for the Defense of Battered Women, for National Clearinghouse for the Defense of Battered Women.
Jaime M. Keating, Esq., Amy Zapp, Esq., Harrisburg, for Commonwealth of Pennsylvania.
BEFORE: CAPPY, C.J., and CASTILLE, SAYLOR, EAKIN, BAER and BALDWIN, JJ.
OPINION
Justice SAYLOR.1
This is a direct appeal from a sentence of death imposed by the Cumberland County Court of Common Pleas, following Appellant Beth Ann Markman‘s conviction of the first-degree murder of Leslie White and related charges. We affirm in part, reverse in part, and remand.
I. Background
During the summer of 2000, shortly after graduating from high school, Leslie White, the victim in this case, began working in the photo shop of a Wal-Mart store in Silver
During her first day of employment at Wal-Mart on August 2, 2000, White met Appellant‘s co-defendant, William Housman, who also started working at the store that day. White and Housman struck up a friendship, which eventually became romantic in nature. Unbeknownst to White, however, Housman had been involved with Appellant for some time, and was living with her in a trailer park in Newville, Cumberland County. In fact, Appellant and Housman had cohabited for nearly two years, including a period of time in which they previously had resided in Virginia. Some time in August of 2000, Appellant discovered that Housman was dating White, which led to a series of escalating arguments between Appellant and Housman. Around this time, Appellant‘s friends and co-workers noticed that Appellant began showing dark bruising around her eyes, neck, and arms, which Appellant attributed to fights between herself and Housman.2 Several individuals testified that Appellant also became increasingly temperamental, and expressed her anger toward White by referring to her as a “f—ing bitch” and stating that she would “kick her ass” or “kill her” if she ever got hold of her. At one point, Appellant called White at work, and White appeared frightened immediately afterward.
By the end of August, when Appellant realized that Housman had not terminated his relationship with White, she evicted him from the trailer and changed the lease to reflect
Within a week after reconciling, Appellant and Housman made plans to move back to Virginia where, it was thought, their relationship would improve. On September 21, 2000, they traveled to an area of southern Virginia where Housman used to work, and told friends that they anticipated relocating to that region. However, shortly after returning to Pennsylvania after this brief visit to Virginia, Appellant suspected that Housman was trying to resume relations with White. Whether or not this was true, it is fairly certain that Housman and White were no longer dating each other at this time. Indeed, White had become involved in with a fellow student at HACC. Nevertheless, there was evidence that Housman had not fully accepted this state of affairs, and Appellant caught Housman in several apparent lies concerning his whereabouts and his dealings with White. Appellant thus concluded that Housman was not being forthright concerning his intentions, which led to another series of altercations culminating on October 2, 2000, when Appellant again required Housman to move out of the trailer. That evening, Housman disabled Appellant‘s car by removing wires from the engine; after the police were called to the scene, Housman replaced the wires.
Two days later, on October 4, 2000, at approximately 5:30 p.m., Appellant was seen driving her car, with Housman in the front passenger‘s seat, to a local Sheetz gas station/conven-
When White arrived, Housman admitted her into the living room, and the two began to talk. Appellant remained in the bedroom with the door closed, and White initially did not know she was there. Subsequently, while White and Housman were sitting on the couch conversing, Appellant came out of the bedroom and stood by the front door. Appellant testified that she did this because she was having trouble breathing due to her asthma, and needed fresh air.3 She also stated that, just before coming out of the bedroom, she heard White cry out because Housman had hit her on the hand with a hammer, and her hand appeared swollen. In any event, shortly after coming out of the bedroom and standing by the door, Appellant acted together with Housman to subdue White, binding her hands and feet with speaker wire, and placing a large piece of cloth in her mouth, as well as a tight gag over her mouth and around the back of her neck to secure the cloth. With White bound and gagged, Housman and Appellant stepped outside to smoke a cigarette and discuss the situation. Upon returning to the trailer, Appellant held the victim down, while Housman strangled her with speaker wire and the crook of his arm, killing her. During the struggle, White reached up and scratched Appellant on the neck, leaving dark red marks. According to the medical examiner, White died of asphyxiation caused by Housman‘s strangulating actions together with the
After the killing, Appellant retrieved a canvas tent from a shed near the trailer while Housman waited inside. She and Housman wrapped the body in the tent and placed it in the back of White‘s jeep. They then drove in two cars—with Housman driving White‘s jeep, followed by Appellant in her own Buick sedan—to Housman‘s father‘s home in Franklin County, Virginia. They ultimately disposed of White‘s body by placing it in the trunk of an abandoned car in a remote area of neighboring Floyd County, on land owned by Housman‘s mother; they also discarded White‘s personal effects, except for her camera, which they sold to a pawn shop.
Housman and Appellant remained in southern Virginia for several days, staying alternately with friends of Housman and with Housman‘s father, and continuing to drive White‘s black jeep, which Housman held out as his own. After White‘s parents filed a missing persons report, however, authorities tracked the jeep to Housman‘s father‘s house. Franklin County Police Officer Brian Vaughn went to the house to investigate, and interviewed Housman and Appellant separately in his patrol car concerning the jeep. At this time, nobody except Housman and Appellant knew that White was dead. While in the officer‘s vehicle, Housman indicated that the jeep was borrowed from a friend; he then went back inside his father‘s house, and Appellant came out and sat in the police vehicle to answer questions. She did not contradict Housman‘s claim that he had borrowed the jeep from a friend; in response to the officer‘s questions, she also denied that Housman had ever been abusive toward her.
Following this incident, Housman and Appellant concluded that the jeep was a liability and disposed of it on the same piece of property where they had hidden White‘s body. Notwithstanding these efforts to conceal the evidence, the police soon discovered the jeep, as well as White‘s partially-decomposed body in the abandoned car, still bound and gagged. They arrested Appellant and Housman at a friend‘s house the evening of October 11, 2000, exactly one week after the
After receiving warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966), both defendants waived their rights and agreed to provide statements to the Virginia police. Each separately confessed to having participated in killing Leslie White. The confessions were recorded on audiotape and transcribed. Housman admitted that he killed White by strangling her, but claimed that Appellant had instigated the homicide to eliminate the source of one of their problems so they could start their relationship anew. He maintained that Appellant had directed him to tie White up and strangle her, and that Appellant forced compliance by hitting him with a hammer that she had in her possession, and then spinning it around in her hand in an apparent threat to use it again if he did not obey her orders. He stated that, after the victim was killed, Appellant, a certified nursing assistant, used a stethoscope to verify the absence of a heartbeat before wrapping the victim‘s body in the tent.4 For her part, Appellant also conceded that she had participated in the killing, stating that she initially bound and gagged the victim, and later held her down while Housman strangled her. She insisted, however, that Housman concocted the murder scheme in order to steal White‘s jeep, and that Housman had coerced Appellant into aiding him in this endeavor by threatening to kill her with a hunting knife if she did not obey his orders. Appellant contended, moreover, that Housman also wore down her resistance by threatening and terrorizing her throughout the previous night, holding a knife to her throat and forcing her to remain naked in the bedroom of the trailer. She omitted any mention of a stethoscope, and stated that she only realized the victim had passed away when
Following the denial of Appellant‘s motion to sever her trial from that of Housman, the two were tried together in Cumberland County court from October 22 through November 5, 2001, on one count each of criminal homicide, kidnapping, unlawful restraint, and abuse of a corpse, and two counts of theft by unlawful taking or disposition (pertaining to the jeep and camera), as well as conspiracy as to all of these offenses. Housman elected not to testify during the guilt phase of the trial. During this phase, the Commonwealth played for the jury an audiotape of Housman‘s confession, referenced above. The tape was altered so that references to Appellant were redacted: a different voice from Housman‘s, stating, “the other person,” was dubbed over these references.5 Before the tape was played, Appellant objected that allowing the jury to hear it in an obviously-redacted form would violate her Sixth Amendment confrontation rights. See N.T. 434-35, 442; see also id. at 572, 613, 86 S.Ct. 1602 (continuing objection).6 The trial court overruled the objection and allowed the jury to hear the tape. The court informed the jury that the tape had been altered to include the words “the other person,” that these were not Housman‘s actual words, and that the jury should
Appellant testified in her defense, and asserted that she had been physically abused by Housman during the course of their relationship. She repeated her specific allegations of coercion on the night of the murder, placing them in the context of a broader pattern of longstanding physical abuse by Housman. She also added significant details concerning the crime, including an assertion that Housman had terrorized her for two full days prior to the murder, during which time he had cut her clothes off with a knife, repeatedly raped her, and threatened to “put a .45 in [her] head” or “send [her] home in pieces to [her] daughter” if she did not do as he instructed or tried to escape the trailer, and ordered her to write a letter to White stating that she (Appellant) had moved to Virginia and was no longer involved with Housman. See N.T. 985-86, 990, 1006. She stated as well that, when she and Housman went to the Sheetz convenience store, she was not aware that Housman was planning to call White until he actually called her, see N.T. 999, 1169, and that when they returned to the trailer, she tried to escape twice, but each time Housman prevented her from doing so in a violent manner. See N.T. 1005-06. Appellant stated further that, even after White was bound and gagged, she (Appellant) did not know that Housman actually planned to kill her. See N.T. 1003, 1012, 1016, 1107. In this regard, Appellant testified that when she and Housman returned to the trailer after smoking a cigarette, White‘s gag had slipped down from her mouth and White requested some water. When Appellant went to the kitchen to get her a glass of water, Appellant heard screaming as Housman began to choke White. According to Appellant, at that point Housman ordered her to come back to the living room and pull the gag back up over White‘s mouth. Appellant complied and, after Housman continued to strangle White, it ultimately became apparent that White had died. Appellant maintained that she obeyed Housman during this time and did not attempt to prevent him from choking White because she was afraid that he might kill her as well. See N.T. 1017-18. As for her
Based in part upon the above testimony, Appellant requested an instruction on the defense of duress. The trial court refused this request, and the jury ultimately found both defendants guilty on all charges, including first-degree murder. At the conclusion of the penalty phase, the jury found, as to Appellant, the aggravating circumstance proposed by the Commonwealth—that the killing was committed in perpetration of the felony of kidnapping, see
II. Sufficiency of the Evidence
A. First-degree murder
Although Appellant does not challenge the sufficiency of the evidence supporting her first-degree murder conviction, this Court undertakes such analysis in every case in which the death penalty is imposed. See Commonwealth v. Malloy, 579 Pa. 425, 435, 856 A.2d 767, 773 (2004). Even where, as here, a new trial is ordered, sufficiency review is necessary because a first-degree murder conviction would be precluded on remand if the evidence in the first trial was insufficient to sustain the guilty verdict. See Bullington v. Missouri, 451 U.S. 430, 442, 101 S.Ct. 1852, 1860, 68 L.Ed.2d 101 (1981).
To obtain a first-degree murder conviction, the Commonwealth must demonstrate that a human being was unlawfully killed, the defendant did the killing, and the defendant acted with a specific intent to kill. See
The evidence, most of it undisputed, revealed that White was unlawfully killed and that Appellant participated in the events causing her death, including binding her hands and feet, stuffing a cloth into her mouth, and tying a gag around her neck. Appellant was close enough to White during the killing that White was able to scratch Appellant‘s neck. Immediately after the homicide, Appellant retrieved a tent in which to wrap White‘s body and helped Housman load the body into the back of White‘s jeep. She also fled the jurisdiction, lied to authorities in Virginia concerning the source of the jeep, helped Housman dispose of White‘s body and belongings in a remote area, and left Housman‘s father‘s house—the only place where the police knew to look for her—when the authorities began to suspect that the jeep was stolen. See generally Commonwealth v. Johnson, 576 Pa. 23, 53, 838 A.2d 663, 681 (2003) (noting that flight and concealment can constitute circumstantial proof of consciousness of guilt). Finally, Appellant expressed her desire to beat or kill White prior to the murder, and stated afterward that she had “taken care of” White so that the latter could no longer interfere with Appellant‘s relationship with Housman. These facts are sufficient to sustain a finding that Appellant acted with a specific intent to kill Leslie White. In light of the expert testimony that the cloth rag forced into White‘s throat likely contributed to her
B. Kidnapping
Appellant challenges the sufficiency of the evidence supporting her kidnapping conviction. Again, this claim must be addressed notwithstanding the grant of a new trial because, absent sufficient evidence, a re-trial on this count would be precluded. See Bullington, 451 U.S. at 442, 101 S.Ct. at 1860. Under the Crimes Code,
a person is guilty of kidnapping if he unlawfully removes another person a substantial distance under the circumstances from where he is found, or if he unlawfully confines another person for a substantial period in a place of isolation with any of the following intentions: (1) To hold for ransom or reward, or as a shield or hostage; (2) To facilitate commission of any felony or flight thereafter; (3) To inflict bodily injury on or to terrorize the victim or another; (4) To interfere with the performance by public officials of any governmental or political function.
Appellant does not dispute that the travel distance from Wal-Mart to the trailer (approximately 25 miles, see N.T. 560) represents a “substantial distance” for purposes of Section 2901(a), or that White was induced by deception to make the trip, thus constituting an unlawful removal for purposes of Section 2901(b). Accord State v. Colbert, 221 Kan. 203, 208, 557 P.2d 1235, 1240 (1976) (finding unlawful removal where the victim was induced by deception to drive his car to a spot where he had not previously intended to go). Nor does she contest that the purpose for which White was lured to the trailer included the facilitation of a felony or the terrorization or infliction of bodily injury upon her. Rather, Appellant focuses her argument on the position that, because she did not personally place the deceptive phone call, there was insufficient evidence that she was guilty of unlawful removal.
We note as well that there was evidence of unlawful confinement by Appellant. By her own admission, Appellant bound White‘s hands and feet, placed a cloth rag into her mouth, and gagged her so that she could not cry out. Thus, White was confined in a place of isolation because she was separated from
Nevertheless, Appellant questions whether the period of confinement was substantial, and asserts that the record does not reveal the exact amount of time that White was bound and gagged before she was killed. However, the determination of a substantial period subsumes not only the exact duration of confinement, but also whether the restraint, by its nature, was criminally significant in that it increased the risk of harm to the victim. Accord State v. La France, 117 N.J. 583, 591, 569 A.2d 1308, 1313 (1990). Presently, it is undisputed that White was not immediately killed after being tied up, and that she was left alone inside the trailer while the perpetrators stepped outside to retrieve cigarettes, smoke them, and discuss what to do next. If White had not been confined as she was, she could have escaped or at least cried out for help; also, the confinement period was sufficient to cause an increased risk of harm due to the blockage of oxygen from the wadded-up rag in her throat. Indeed, the medical examiner identified this blockage as contributing to White‘s death at the time she was strangled. Thus, the jury was entitled to conclude that White was confined in a place of isolation for a substantial period. Cf. Hook, 355 Pa.Super. at 14, 512 A.2d at 720 (finding a confinement period of one hour to be substantial).
In light of the overall course of conduct undertaken by Appellant which subsumed activities related to both removal and confinement, we find the evidence sufficient to support a finding of guilt on the kidnapping charge.
Appellant makes several allegations of trial court error relating to both the guilt and penalty phases of trial. In one of these claims, Appellant argues that the court abused its discretion by denying her motion to sever, and erred by allowing the jury to hear a redacted audiotape of Housman‘s confession implicating her in the murder. She maintains that this violated her Sixth Amendment confrontation rights as it was evident to the jury that the tape was redacted because the phrase “the other person,” in a distinct voice, was dubbed over the name “Beth” or “Markman.” Appellant states that this error was compounded when the court affirmatively told the jury that the tape had been altered in this manner. We agree with Appellant that it was error to allow the jury to hear this tape.
In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Supreme Court considered whether Bruton‘s Sixth Amendment confrontation rights were violated by the introduction, at a joint trial, of a non-testifying co-defendant‘s confession that facially incriminated Bruton, and if so, whether this violation could be cured by a contemporaneous jury instruction to consider the confession as against the co-defendant only, and not against Bruton. The Court explained that, notwithstanding the benefit of joint trials and the ordinary rule that the jury is presumed to follow the instructions of the court,
there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect. . . . The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be
tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed.
Id. at 135-36, 88 S.Ct. at 1627-28. See generally Commonwealth v. McCrae, 574 Pa. 594, 612-13, 832 A.2d 1026, 1037-38 (2003); Commonwealth v. Travers, 564 Pa. 362, 366-67, 768 A.2d 845, 847 (2001). Thus, as there was no opportunity for Bruton to cross-examine his co-defendant concerning the assertions in the statement, the Supreme Court found that its introduction violated Bruton‘s confrontation rights, and reversed his conviction. See also Lee v. Illinois, 476 U.S. 530, 545, 106 S.Ct. 2056, 2064, 90 L.Ed.2d 514 (1986) (recognizing that a codefendant‘s confession is “presumptively unreliable as to the passages detailing the defendant‘s conduct or culpability because those passages may well be the product of the codefendant‘s desire to shift or spread blame, curry favor, avenge himself, or divert attention to another“).
Subsequently, in Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 1709, 95 L.Ed.2d 176 (1987), the Court concluded that no Bruton violation occurs where a confession is altered to remove the defendant‘s name and any reference to his existence, and a proper limiting instruction is given. Nevertheless—and critical to this appeal—under Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998), a scenario in which the defendant‘s name is replaced with the word, “deleted,” or the statement is otherwise redacted in such a manner that it clearly refers to the defendant, does not satisfy the strictures of Bruton. See id. at 197, 118 S.Ct. at 1157.
As an initial matter, it is evident that Housman‘s confession in its unredacted form comes within the Bruton rule, as it comprises an attempt by Housman, a non-testifying codefendant, to shift the bulk of the blame to Appellant; as noted, it alleges in substantial detail that Appellant conceived of the plot to kill the victim, directed its execution, and forced Housman to cooperate. Additionally, the manner in which the confession was redacted and presented to the jury falls squarely within the proscriptions enunciated in Gray. In that case, the Supreme Court indicated that “redactions that re-
You will note that the tape has been altered at some point to insert the words, quote, the other person, unquote. It will be obvious to you that these words are not part of the original tape-recorded statement. I am instructing you that these words, quote the other person, unquote, were inserted at my direction based upon the law in Pennsylvania. You are to draw no inference regarding the insertion of these words, and you should listen to the tapes just as if they had not been altered.
N.T. 437. The judge also told the jury, more specifically, that “you may consider the statement of Housman as evidence against Housman. You must not, however, consider the statement as evidence against Markman.” N.T. 568. The Gray Court explained the difficulties inherent in such an approach:
For one thing, a jury will often react similarly to an unredacted confession and a confession redacted in this way, for the jury will often realize that the confession refers specifically to the defendant. . . . Consider a simplified but typical example, a confession that reads “I, Bob Smith, along with Sam Jones, robbed the bank.” To replace the words “Sam Jones” with an obvious blank will not likely fool anyone. A juror somewhat familiar with criminal law would know immediately that the blank . . . refers to defendant Jones. A juror who does not know the law and who therefore wonders to whom the blank might refer need only lift his eyes to Jones, sitting at counsel table, to find what will seem the obvious answer, at least if the juror hears the judge‘s instruction not to consider the confession as evi-
dence against Jones, for that instruction will provide an obvious reason for the blank. . . . For another thing, the obvious deletion may well call the jurors’ attention specially to the removed name. By encouraging the jury to speculate about the reference, the redaction may overemphasize the importance of the confession‘s accusation. . . .
Id. at 193, 118 S.Ct. at 1155-56.
The events here mirror the scenario proscribed by Gray: Appellant‘s name was replaced with a phrase that was an obvious (and indeed explicit) substitution, and the jury was admonished not to consider the statement as evidence against Appellant.9 The redactions by their nature alerted the jury to the fact of alteration, and they did “not likely fool anyone” as to whose name had been removed—particularly as Housman and Appellant were the only two defendants in the courtroom, and, as discussed previously, the tape itself contained two instances in which Housman‘s express references to “Beth” were left intact. See supra note 5. See generally Gray, 523 U.S. at 196, 118 S.Ct. at 1157 (observing that accusations made by a statement redacted in an obvious manner are “more vivid than inferential incrimination, and hence more difficult to thrust out of mind” (quoting Richardson, 481 U.S. at 208, 107 S.Ct. at 1707)). Moreover, the trial court explicitly revealed the fact of the redactions to the jurors. Accordingly, we agree with Appellant that introduction of this statement in its redacted form violated her Bruton confrontation rights for the reasons expressed in Gray.10
Notes
See Gray v. Maryland, 523 U.S. 185, 195-97, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998).
Indeed, at a joint retrial, one must assume a properly redacted statement would be admitted, and there would be no Bruton violation.
Commonwealth v. Lassiter, 554 Pa. 586, 722 A.2d 657, 661-62 (1998), held the aggravating circumstance at
The court stated, “[i]n this case, in each verdict, under the sentencing code, only the following matters, if proven to your satisfaction beyond a reasonable doubt, can be considered aggravating circumstances. That circumstance would be the same in [both appellant‘s and her co-defendant‘s] case. That the defendant committed a killing while in the perpetration of a felony, in this case, kidnapping.” N.T. Sentencing, 11/5/01, at 1442 (emphasis added). “In deciding whether aggravating or mitigating circumstances exist ... you should consider the evidence and the arguments offered by both the Commonwealth and each defendant. This includes the evidence that you heard during the earlier trial, and any statements [at the penalty phase].” Id., at 1444. “When voting on the general findings, you are to regard a particular aggravating circumstance as present only if you all agree that it is present.” Id., at 1446. “Remember, the Commonwealth must prove any aggravating circumstance beyond a reasonable doubt.” Id., at 1447 (emphasis added).
Yeah. And I was feeling pretty sure because I knew the other person, Beth, was in the back, so I wanted to get it done and over with quick. Commonwealth Exh. 83 (redacted audiotape) (bolding reflects different voice). In the corresponding portion of the transcript, the word “Beth” is replaced by a second instance of “the other person.” See Commonwealth Exh. 83C at 21. However, this does not accurately reflect the contents of the tape. In the second non-redaction, Housman again makes an incriminating statement about “Beth,” and neither the tape nor the transcript contains a redaction. See id. at 26.
The Commonwealth does not presently make any attempt to carry its burden in this regard, and we are unconvinced from the record that the error was harmless. There was never any dispute that Housman and Appellant were the only individuals involved in the kidnapping and killing of Leslie White, or that Housman‘s actions were the direct cause of her death. Rather, for purposes of ascertaining Appellant‘s guilt, the central issue as to both the murder and the kidnapping was whether, and to what extent, Appellant acted with an intention to bring about the kidnapping and killing of White. The degree to which the jurors would believe Appellant‘s account of the underlying events, as recited both in her confession and in her trial testimony, would therefore determine whether they would find her guilty of these crimes, including whether they would conclude that she acted with a specific intent to kill. On this topic, Housman‘s confession represented the only proof directly refuting Appellant‘s claim that Housman forced her
We also cannot conclude that the remaining uncontradicted evidence of guilt was so overwhelming, and the error‘s prejudicial effect was so insignificant by comparison, that the error could not have contributed to the verdict. In this regard, because Appellant‘s testimony contradicted Housman‘s confession as to the central issues of Appellant‘s intentions and role in the underlying events, any other, uncontradicted evidence of guilt would have to have come from someone else. Accord Young, 561 Pa. at 87 & n. 16, 748 A.2d at 194 & n. 16 (concluding, where the defendant testified and contradicted much of the Commonwealth‘s evidence, that none of the proofs thus disputed could be used to establish harmless error, as it is not within the province of this Court to determine the comparative credibility of conflicting evidence). This consisted primarily of testimony regarding Appellant‘s demeanor and statements before and after the murder, as well as her having fled the jurisdiction and assisted Housman in hiding evidence. While these proofs comprised circumstantial evidence of Appellant‘s state of mind during the actual kidnapping and homicide, they are of limited value to the present analysis because Appellant specifically denied that she acted voluntarily, see N.T. 1012-18, 1057, 1166, and additionally stated that she did not have any intention of harming White, but rather, was coerced into taking actions against her will, see N.T. 941-42, 967. Particularly in view of the defense claim of coercion, this evidence did not so overwhelmingly prove Appellant‘s guilt that Housman‘s statement could not have been a factor in
A central premise of the dissenting opinion is that Appellant “admitted [she] murdered White,” that is, she “identified herself as the perpetrator of a capital crime.” Dissenting Opinion at 614. As we have detailed above, however, this simply is not the case. Although the dissent discounts Appellant‘s testimony as “self-serving,” see id. at 6, whether this Court believes such testimony to be truthful is of no relevance to the present inquiry, as witness credibility assessments are within the jury‘s exclusive realm. See Young, 561 Pa. at 87 n. 16, 748 A.2d at 194 n. 16. The critical fact here is that the crucial aspects of the Commonwealth‘s case for first-degree murder were plainly contradicted by Appellant‘s testimony, and thus, under the Young line of cases (dating from Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978)), cannot be considered when ascertaining whether the other evidence of guilt is overwhelming. Moreover, the central question for purposes of harmless error is whether the jury might have relied upon Housman‘s confession in finding that Appellant acted with a specific intent to kill, not whether any specific actions on her part were, in some sense, voluntary.12 Finally, the dissent also views Housman‘s confession as only minimally prejudicial, but it does not reconcile its approach with the
IV. Appellant‘s other claims
Although we have determined that Appellant‘s Confrontation Clause claim requires a new trial, we deem it advisable, for the sake of judicial economy, to address two other claims which have been fully briefed and are capable of resolution on the present record, as they are likely to arise on remand. See generally United States v. Adamson, 665 F.2d 649, 656 n. 19 (5th Cir.1982) (“It is common practice for an appellate court to consider and decide issues which are fully presented and litigated and which will likely arise on retrial, even though such decision may not be necessary to support the narrow decision to reverse. The practice serves an important interest in judicial economy.” (citation omitted)). Our analysis regarding the first such issue (duress) constitutes an alternative holding supporting the result reached. See Commonwealth v. Swing, 409 Pa. 241, 245, 186 A.2d 24, 26 (1962) (“Where a decision rests on two or more grounds equally valid, none may be relegated to the inferior status of obiter dictum.“).15
431, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972); Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284 (1969); Commonwealth v. Lee, 541 Pa. 260, 272, 662 A.2d 645, 652 (1995); Commonwealth v. Wharton, 530 Pa. 127, 140, 607 A.2d 710, 717 (1992).
First, Appellant maintains that the trial court erroneously refused her request for a jury instruction on the defense of duress. Duress is a defense to criminal culpability. See Commonwealth v. Santiago, 462 Pa. 216, 227-28, 340 A.2d 440, 446 (1975). It is codified in the Crimes Code as follows:
(a) General Rule.—It is a defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.
(b) Exception.—The defense provided by subsection (a) of this section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to establish culpability for the offense charged.
The Constitution guarantees to state criminal defendants “a meaningful opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636 (1986) (internal quotation marks omitted). Hence, “[w]here a defendant requests a jury instruction on a defense, the trial court may not refuse to instruct the jury regarding the defense if it is supported by evidence in the record,” DeMarco, 570 Pa. at 271, 809 A.2d at 261; it is “for the trier of fact to pass upon that evidence and improper for the trial judge to exclude such consideration by refusing the charge.” Commonwealth v. Lightfoot, 538 Pa. 350, 355, 648 A.2d 761, 764 (1994) (internal quotation marks omitted); see also Commonwealth v. Borgella, 531 Pa. 139, 142, 611 A.2d 699, 700 (1992) (“A defendant is entitled to an
Here, Appellant‘s trial testimony set out at length the basis for her claim of duress, including that Housman repeatedly battered her and placed a knife to her throat or side and threatened her with death if she did not do as he instructed. These assertions have already been adequately set out at length. They were, as explained, corroborated to some degree by Appellant‘s neighbor, Deborah Baker, and were also consistent with the testimony of two other witnesses—one of whom had no connection to Appellant—who observed Appellant‘s distraught condition on October 3, 2000, the day before the homicide and, according to Appellant‘s testimony, the day after the first full night of coercion and terrorization by Housman. See N.T. 1177, 1180-81. We find this evidence sufficient to raise a question of fact as to whether Appellant was subjected to duress under Section 309(a), and thus, to confer upon Appellant a prima facie entitlement to a jury instruction on the issue.18
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor‘s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor‘s situation.
Notably, it is the trier of fact that must determine whether the defendant acted recklessly. See id. at 274, 809 A.2d at 262. Thus, an appellate court will only affirm a trial judge‘s removal of the duress issue from the jury on the basis of the recklessness exception where there can be no reasonable dispute that this exception applies. In Pelzer, for example, the trial court refused to charge the jury on duress, holding that the Section 309(b) exception applied as a matter of law. A plurality of this Court agreed with that determination on the basis that the only evidence of duress at trial came from the defendant‘s own statement to the police, and, according to that information, during the crime the defendant left the scene entirely on multiple occasions and each time chose to
In DeMarco, on the other hand, this Court reversed the defendant‘s conviction where the trial court had, as in Pelzer, refused to instruct the jury on duress based upon the purported applicability of the 309(b) exception. The DeMarco Court determined that there was some basis to conclude that the defendant had acted recklessly, but that there was also evidence tending to negate recklessness. In that matter, DeMarco made statements to the police, and in court, corroborating the allegations of Frank Lawra that a third individual had vandalized Lawra‘s automobiles. After it became evident that these allegations were false, DeMarco was charged with several offenses, including perjury and false swearing. He defended himself by claiming that Lawra had coerced him into corroborating the latter‘s story. In support of this claim, DeMarco offered proof that he was borderline mentally retarded, and that Lawra had shot him with a B.B. gun, choked him, and threatened to deprive him of his social security checks or kill him if he did not comply. On the other hand, there was evidence that DeMarco failed to seek the assistance of law enforcement authorities in dealing with the alleged duress when he was in the presence of police officers. This Court concluded that this latter evidence raised the possibility that DeMarco was reckless in placing himself in a situation where duress was probable, but did not “ma[k]e it completely obvious, as in Pelzer, that that was the case.” Thus, it was deemed a question of fact for the jury to determine whether DeMarco had acted recklessly. See id. at 275-76, 809 A.2d at 263-64.
The present case is more like DeMarco than Pelzer. Appellant‘s testimony and post-arrest statement provided evidence that she was subjected to duress by Housman during
The trial court also justified its conclusion that Appellant acted recklessly as a matter of law on the grounds that Appellant allowed Housman to move back into her trailer several weeks before the murder, although she was aware of
his violent tendencies, see id. at 79-80, and that she failed to escape Housman‘s domination after the victim was killed, see id. at 82-83. We find that, in the circumstances of this case, any connection between the offenses under review and Appellant‘s acts or omissions long before they occurred is too attenuated to provide a basis for removing the duress issue from the jury. Although one might argue that Appellant consciously disregarded a substantial and unjustifiable risk that she would be physically assaulted by Housman in the future, neither party contends that being the victim of domestic violence, in itself, suggests a probability of being coerced into victimizing a third party.19 Moreover, there is no recordAs for Appellant‘s post-offense conduct, the trial court concentrated primarily on Appellant‘s failure to run for help when she left the trailer to retrieve the tent, as well as her failure to drive to a police station and report the crime when following Housman en route to Virginia after the crime was completed. While these omissions may provide circumstantial evidence of recklessness at the time of the kidnapping and murder, we note that
Accordingly, the jury should have been informed of the elements of the defense of duress and its recklessness exception, and allowed to resolve these factual issues—at least with respect to the charges of homicide, kidnapping, and unlawful restraint.20
B. Lassiter instruction
In the penalty phase Appellant requested a jury instruction pursuant to this Court‘s decision in Commonwealthv. Lassiter, 554 Pa. 586, 722 A.2d 657 (1998) (plurality). Specifically, she asked that the trial court inform the jury that the only aggravating circumstance put forward by the Commonwealth—that the homicide had occurred during the perpetration of the felony of kidnapping, see
Appellant correctly claims that the trial court‘s reasoning was in error. The trial court included a charge on accomplice liability in its guilt-phase instructions.22 It also presented a general verdict form to the jury and never requested that the jury indicate whether its finding of guilt was based upon principal or accomplice liability. Further, in the alternative to his arguments concerning principal liability, the prosecutor also argued that the jury should convict Appellant as an accomplice.23 It is possible, therefore, that the jurors convicted Appellant as an accomplice, as they had plainly been authorized and invited to do. Hence, the trial court incorrect-
Nevertheless, this case is different from some others in which the Lassiter issue has surfaced in that the trial court specifically instructed the jurors that the (d)(6) aggravator applied only if “the defendant committed a killing while in the perpetration of a felony.” N.T. 1442. This is materially distinguishable from situations in which trial courts have paraphrased the (d)(6) aggravating circumstance in the passive voice (e.g., by indicating that the aggravator applies where the “killing was committed in the perpetration of a felony“), thus conveying that a defendant‘s actual perpetration of the killing is immaterial. By tracking the language of the statute, the trial court in the present case conveyed the essential information in an understandable form.
In summary, the court erred in refusing to clarify that the (d)(6) aggravating factor does not apply to an accomplice who does not actually perpetrate the killing, upon Appellant‘s reasonable request, on the basis that this was irrelevant. Nevertheless, in view of the (d)(6) instruction actually given, a new penalty proceeding would not presently be required on the Lassiter claim.
V. Appellant‘s other convictions
As discussed, Appellant was also found guilty of theft and abuse of a corpse. See supra note 14. However, she does not presently raise any specific challenge to these convictions.
The only general claim raised by Appellant which, if successful, would undermine the validity of these convictions, is that the trial court‘s jury-unanimity instruction was ambiguous. In the guilt phase, the court charged the jury as follows:
All votes are equal on the jury, ladies and gentlemen. I remind you to put something on the slip, your verdict must be unanimous. And obviously that means each one of you must agree to it before you put it down on a slip.
N.T. 1231. Trial counsel later unsuccessfully requested that the judge inform the jurors in more detail concerning the requirement of unanimity by including a portion of Appellant‘s suggested charge. See id. at 1233.
Appellant argues that the above instruction constituted error, as it failed to clarify that each juror must individually agree that the verdict reached is an appropriate one. She states that her suggested instruction tracked Pennsylvania‘s standard instruction which, in addition to the above, includes the following admonition:
Each of you must decide the case for him or herself, but only after there has been impartial consideration with your fellow jurors. In the course of deliberations, each juror
should not hesitate to re-examine his or her own views and change his or her opinion if convinced it is erroneous. However, no juror should surrender an honest conviction as to the weight or effect of the evidence solely because of the opinion of his or her fellow jurors, or for the mere purpose of returning a verdict.
Pennsylvania Standard Jury Instruction 7.05 (Crim). Appellant maintains that, without the above clarification, the charge left open the possibility that a juror might agree to a verdict simply because the court had directed that any verdict must be unanimous—as opposed to the juror agreeing to the verdict as a result of his or her honest opinion.
A trial court has broad discretion in phrasing its charge, and will only be found to have erred where there is an abuse of discretion or an inaccurate statement of the law. See Commonwealth v. Hall, 549 Pa. 269, 303, 701 A.2d 190, 207 (1997). Where an instruction is alleged to be ambiguous, the standard for review is whether there is a reasonable likelihood that the jury applied it in a manner that violates the Constitution. See Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 482, 116 L.Ed.2d 385 (1991). Here, the trial court plainly stated that each juror must agree to the verdict before it can become a verdict. Thus, Appellant‘s argument that the jury might have misunderstood the meaning of unanimity is highly speculative and, as well, contrary to the judge‘s express statement that all votes carry equal weight. In short, Appellant‘s claim is insufficient to raise a reasonable probability that the jury misapplied the instruction. Accordingly, the trial court‘s unanimity charge did not constitute reversible error.
VI. Conclusion
For the reasons stated, we affirm the judgment of sentence insofar as Appellant was found guilty of theft, abuse of a corpse, and criminal conspiracy to commit those offenses. We vacate the judgment of sentence in all other respects, and remand the matter for further proceedings consistent with this Opinion.
Justice EAKIN files a dissenting opinion.
Justice EAKIN, dissenting.
I am constrained to disagree with the majority on three points.
First, the majority concludes the trial court committed reversible error by allowing the jury to listen to a redacted audiotape of Housman‘s statement to the police, which implicated appellant in the murder. It was apparent the tape was redacted; the phrase “the other person” was dubbed, in a different voice, over each of Housman‘s references to “Beth,” “Markman,” and each feminine pronoun. I agree it was error to allow the jury to hear this tape; as redacted, it violated Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). However, the United States Supreme Court has rejected the notion that the erroneous admission of an incriminating statement by a co-defendant at a joint trial automatically requires reversal of a conviction. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). On several occasions, the Court has deemed violations of confrontation rights to be harmless error. See Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973) (violation of confrontation rights harmless beyond reasonable doubt where improper evidence merely cumulative of overwhelming evidence of guilt); Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972) (Bruton violation harmless beyond reasonable doubt since overwhelming evidence of guilt outweighed comparative insignificance of confession); Harrington, supra (overwhelming evidence of guilt and relatively insignificant prejudicial impact of co-defendant‘s statement rendered Bruton violation harmless). Here, despite the Bruton violation, I find admission of the improperly redacted confession was harmless in light of the overwhelming properly admitted evidence establishing appellant‘s guilt.
At trial, Young denied any involvement in planning or executing the murder, and presented an alibi and other evidence in support of that claim. The Commonwealth presented the statements of Young‘s two non-testifying co-defendants, which alleged Young planned and committed the murder. We concluded the admission of these statements violated the Confrontation Clause, then examined whether the error was harmless. We found it was not:
It is beyond cavil that this case does not present a situation where the erroneously admitted evidence was not prejudicial to [Young]. [The co-defendants‘] statements specifically identified [Young] as [the victim‘s] murderer. It is difficult to imagine any evidence more prejudicial to a defendant than that which identifies [him] as a perpetrator of a capital crime.
Young, at 193 (emphasis added).
In Young, the identity of the killer was not known, and Young denied having any role in either the planning of the murder or the murder itself. His co-defendants’ statements completely and directly contradicted every aspect of Young‘s testimony. In the present case, however, there was no question about the identity of the killers; Housman and appellant both admitted they murdered White. The reasoning from Young that the majority cites is not determinative.
We must remember appellant took the stand and identified herself as the perpetrator of a capital crime; any prejudice to her from the introduction of Housman‘s improperly redacted confession is qualitatively distinct from the prejudice caused
[T]he incriminating statements of a co-defendant will seldom, if ever, be of the “devastating” character referred to in Bruton when the incriminated defendant has admitted his own guilt. The right protected by Bruton—the “constitutional right of cross-examination,” ... has far less practical value to a defendant who has confessed to the crime than to one who has consistently maintained his innocence. Successfully impeaching a co-defendant‘s confession on cross-examination would likely yield small advantage to the defendant whose own admission of guilt stands before the jury unchallenged.
Parker v. Randolph, 442 U.S. 62, 73, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979) (plurality opinion), abrogated by Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987).
We must also be mindful that it was not the admission of the statement itself that was error—it was the ineffectual means of redaction that alone created error. We must assess the harm not of the statement, but of the improper redaction. This redaction produced a tape with obvious deletions and alterations, which the United States Supreme Court has held is the equivalent of naming the defendant.1 Thus it was error, pursuant to Bruton, to admit Housman‘s confession as redacted; it would not have constituted error if the confession had merely been read into evidence, or redacted in a way that did not produce obvious alterations.
This error had little impact since the prejudice caused by admission of the improperly redacted confession is no more than the prejudice that would have resulted from a properly redacted confession.2 Appellant and Housman were the only two people charged with the murder, they were tried together
The majority concludes the admission of Housman‘s improperly redacted confession caused substantial prejudice to appellant since it was the only proof directly contradicting her claim she was forced to participate. Majority Op. at 278-79, 916 A.2d at 603. However, the majority bases its analysis on the prejudicial impact of Housman‘s confession as a whole, rather than focusing on the prejudice caused by the error—i.e., the method of redaction. Had there been appropriate redaction, this statement would have been admissible. Under the circumstances, I find the prejudicial impact of the error was de minimis.
In addition, there was overwhelming evidence of guilt, and the relatively insignificant prejudicial impact of Housman‘s statement rendered the Bruton violation harmless. The evidence showed appellant made threats to third parties that she would kill White. She said she would “kick her ass” if they ever met. She called White at work to harass her. Appellant drove Housman to the Sheetz store to lure White back to the trailer. She waited for White to arrive, knowing White was coming under false pretenses. She hid quietly in the bedroom until she emerged and blocked the front door. She tied White‘s hands and feet together. She shoved a rag into her throat and gagged her. She accompanied Housman outside to smoke a cigarette and plan their next move. She held the victim‘s body while Housman strangled her; when she was arrested, she had scratches on her neck which she admitted were caused by White in the struggle. After White was dead, appellant left the trailer alone and returned with a tent in which to hide the body.
Appellant followed Housman all the way to Virginia, driving a separate vehicle and continuing to forgo the constant oppor-
The circumstances of this case are more akin to those in Commonwealth v. Groff, 356 Pa.Super. 477, 514 A.2d 1382 (1986), wherein the Superior Court found the erroneous admission of a tape-recorded emergency telephone call made to police was harmless error. The court stated:
The undisputed facts ... provide overwhelming evidence of an intentional killing. Murder of the first degree is an “intentional killing,” ... one that is “willful, deliberate and premeditated.” ... The appellant‘s preparation, lying in wait and entering the house with a loaded weapon are events which, even individually considered, are evidence of premeditation and, taken together, are overwhelming proof of appellant‘s intent to take the life of his estranged wife.
The only evidence to support appellant‘s theory of “heat of passion” was his own self-serving testimony that he shot his wife after she started “screaming and hollering.”
Id., at 1385 (citations omitted). Similar to the appellant in Groff, the only evidence to support appellant‘s defense is her own self-serving testimony that she was coerced into participating in the killing. Appellant‘s actions and her failures to act provided the jury with overwhelming proof to the contrary and shows that she intended to take the life of her boyfriend‘s mistress, thereby eliminating the source of the problems in their relationship. Any prejudice caused by the method of redaction of Housman‘s statement was insignificant in comparison, and I would hold the error in admitting it was harmless.
Next, while I agree with the majority‘s determination that duress is available in Pennsylvania as a defense to first degree murder, I disagree with the majority‘s conclusion that the trial
Duress is a statutory defense, set forth at
(a) General rule.----It is a defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.
(b) Exception.----The defense provided by subsection (a) of this section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress.
The exception under
An appellate court will only affirm a trial court‘s removal of the duress issue from the jury on the basis of
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor‘s conduct and the circumstances known to him, its
disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor‘s situation.
Here, appellant claimed Housman cut her and kept her hostage inside the trailer for two days prior to the murder. However, when Debbie Baker, her friend and neighbor, knocked on the door the day before the murder, appellant freely left the trailer to speak with her. The two walked to Baker‘s home and talked on the porch for about two hours. N.T. Trial, 10/30/01, at 859–60. Baker testified appellant told her Housman had been “terrorizing” her inside the trailer, but when Baker urged appellant to stay with her, appellant stated she wanted to return to the trailer; she got up and walked to the trailer and went back inside. Id.; N.T. Trial, 10/31/01, at 990-95.
The next day, appellant drove Housman to the Sheetz store and stood beside him as he placed the deceptive phone call to White. She was in a public place, yet she made no attempt to escape from Housman or leave him behind. Instead, she got back into the car with him and drove him back to the trailer to meet White. When they turned into the trailer park, appellant drove past Sandra Kautz, the park manager; she did not attempt to get Kautz‘s attention or seek help. Ms. Kautz testified she raised her hand to wave to the couple, but neither of them acknowledged her. N.T. Trial, 10/25/01, at 167-68. Appellant parked the car and reentered the trailer with Housman.
When White arrived, appellant hid in the bedroom with the door closed; she did not try to escape through the back door, nor did she yell or make noise to alert White of her presence in the trailer. Appellant remained quietly concealed in the bedroom until she emerged and sat by the front door. She left the trailer with Housman to smoke, but she never cried out to her neighbors or made any attempt to flee. Instead, she stayed at Housman‘s side and reentered the trailer with him to complete the murder. She did not flee when Housman
After White died, appellant left the trailer, once again alone, to get the tent; instead of taking that opportunity to run from Housman or to get help, she returned to the trailer with the tent and helped Housman hide the body and cover up the crime. Housman drove the Jeep to Virginia with White‘s body in the trunk, and appellant followed him for the entire five-hour drive in her own vehicle; not once did she attempt to lose Housman or call the police. When asked at trial why she never tried to escape on the way to Virginia, appellant tellingly replied, it “never crossed my mind.” N.T. Trial, 10/31/01, at 1021. When she was being questioned by the officer who was investigating the missing persons report, appellant again forwent an opportunity to confess the crime and escape Housman‘s control. I would hold the above evidence is sufficient to establish, without question, appellant acted recklessly at the very least.
The only direct evidence that appellant acted under duress was her own testimony. To corroborate this testimony, appellant presented the testimony of Debbie Baker and two other witnesses who testified they saw appellant sitting on the porch with Baker the day before the murder, and that it was apparent appellant had been crying.
On appeal, this Court must view the evidence in the light most favorable to the verdict winner. Commonwealth v. Watkins, 577 Pa. 194, 843 A.2d 1203, 1211 (2003). The majority fails to abide by this principle, and places an inordinate amount of weight on the testimony of Debbie Baker, appellant‘s lifelong friend and neighbor. In accordance with our standard and scope of review, Baker‘s testimony should be granted little credit on appeal since the Commonwealth directly challenged Baker‘s credibility and veracity at trial. See N.T. Trial, 11/1/01, at 107-09, 120-21. The testimony from the other two witnesses who testified they saw appellant crying on Baker‘s front porch is of little relevance to the issue of duress, and the same is true of the evidence that Housman had disabled appellant‘s vehicle. See Majority Op. at 283-86, 287,
When viewed in the light most favorable to the Commonwealth as verdict winner, the evidence leaves no question that, even if Housman threatened her, appellant acted recklessly and repeatedly placed herself in situations where it was probable she would be subjected to duress. I would hold that as a matter of law, the defense of duress was not available to appellant pursuant to
Finally, I disagree with the majority‘s determination that the trial court erred in refusing to provide the jury with a Lassiter instruction. In that case, we held the subsection (6) aggravator is inapplicable “to accomplices such as [Lassiter],” i.e., defendants who are not the causal agent directly responsible for performing the murder. Id. However, appellant is not an “accomplice such as Lassiter” since she and Housman were both directly responsible for performing the murder. A closer reading of Lassiter shows our holding did not turn on Lassiter‘s status as an accomplice, but was instead premised on the fact that the Commonwealth‘s theory of the case was that Carter, not Lassiter, shot the victim. We held the subsection (6) aggravator was thus inapplicable to Lassiter since she was not one who “committed” a killing. Thus, the critical inquiry is not whether the jury‘s verdict was based on accomplice or principal liability, but rather, whether the defendant “committed” the murder.
Here, the jury did not indicate whether its verdict was based on accomplice or principal liability, but when viewed in the light most favorable to the Commonwealth as verdict winner, the evidence clearly establishes appellant is not a mere non-committing accomplice “such as Lassiter;”3 the Com-
However, our holding did not address an accomplice who does commit the killing. Lassiter noted the distinction between “one who commits a killing” and “an accomplice to murder,” but it did not hold those two designations are mutually exclusive.
The basis for the jury‘s conviction of first degree murder is irrelevant to the Commonwealth‘s burden of proof at the guilt phase. Whether principal or accomplice, the Commonwealth had to prove the actual commission of the killing, not merely accomplice liability. The court clearly instructed the jury that it was the Commonwealth‘s burden to prove the aggravating circumstance beyond a reasonable doubt, which includes a finding that appellant committed the killing.4 Where the Commonwealth proves at the penalty phase that the defendant committed a killing by performing an act that directly caused the victim‘s death, the defendant is not immune from application of the subsection (6) aggravating circumstance, regardless
For the foregoing reasons, I respectfully dissent.
916 A.2d 619
Karen PRIDGEN, Individually and as Personal Representative of the Estate of Lendon N. Pridgen, Deceased; and as Personal Representative of the Estate of Anthony W. Cipparone, Deceased and Denise Diggen, Individually and as Personal Representative of the Estate of Daniel Diggen, Deceased, and Debra Johnson, Individually, and on Behalf of Tyler Johnson, As Parent and Natural Guardian of Tyler Johnson, a Minor, v. PARKER HANNIFIN CORPORATION and Basco Flying Service, Inc. and Textron Lycoming Reciprocating Engine Division and Textron, Inc. and Avco Corporation. Appeal of Textron Lycoming Reciprocating Engine Division, Textron, Inc. and Avco Corporation.
Supreme Court of Pennsylvania.
Submitted Dec. 11, 2006.
Decided Feb. 21, 2007.
By its terms,
We acknowledge that, under some circumstances, placing one‘s self into a certain cooperative relationship with other violent individuals may constitute recklessness, even where no specific crime is in view. For example, the court in People v. Anderson, 28 Cal.4th 767, 122 Cal.Rptr.2d 587, 50 P.3d 368, 374 (2002), suggested that the duress defense may be unavailable to a person who joins a street gang or prison gang and is then coerced to commit a crime. See also Williams v. State, 101 Md.App. 408, 646 A.2d 1101, 1110 (1994) (finding that, because of defendant‘s voluntary involvement with a drug ring, he
This holding is based upon the evidence presented during Appellant‘s first trial. Upon retrial, the court will, of course, have to assess the proof adduced, in light of the principles discussed above, to determine whether or not to grant any defense request to instruct the jury on duress at that proceeding.
In Lassiter six Justices joined the Court‘s central holding that the General Assembly did not intend the (d)(6) aggravator to apply to accomplices, although the remainder of the lead opinion only garnered the support of a plurality of justices.
Specifically, the court informed the jurors that they could find Appellant guilty of a crime without finding that she personally engaged in the conduct required for the commission of the crime, so long as they were satisfied that, with the intent of promoting or facilitating the crime, she solicited, commanded, requested, encouraged or agreed with the other person in planning or committing it. See N.T. 1209-10.
See N.T. Vol. IV, at 93, 101 (reflecting the prosecutor‘s argument to the jurors that: “I want you to consider accomplice liability.... [T]he law says, if you slightly help another person do an act, you are as guilty as they are.“); id. (“So you note it in like Ms. Markman‘s statement that ... it was not me, I didn‘t kill her. Oh, that gets me off cause I am not the one that physically did it ... You are aiding and abetting in that particular act ... You are in. And you are in for all of it at that point.“); id. at 117 (“And, yeah, you can be an arm‘s length away while you are holding that girl down while he finishes her off. And that makes you an accomplice.“); id. at 127 (reflecting additional argument by the district attorney concerning accomplice liability).
Although Spotz was a plurality as to some issues, a majority of the Justices agreed that the trial court‘s failure to provide a Lassiter charge was inconsistent with the fact that the defendant might have been found guilty as an accomplice.