COMMONWEALTH of Pennsylvania, Appellee v. Lachan Taryn RUSSELL, Appellant.
Superior Court of Pennsylvania.
Dec. 12, 2007.
941 A.2d 1082
Argued April 25, 2007.
¶ 16 This decision is limited to the issue of standing, and nothing herein is intended to address the merits of Grable‘s petition.
¶ 17 Order reversed and remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.
Paul R. Scholle, Pittsburgh, for appellee.
BEFORE: McCAFFERY, DANIELS and POPOVICH, JJ.
OPINION BY POPOVICH, J.:
¶ 1 Appellant Lachan Taryn Russell appeals the judgment of sentence entered on May 8, 2006, in the Court of Common Pleas of Allegheny County, following her convictions for arson endangering persons1 and related offenses, and cruelty to animals. Upon review, we affirm in part, reverse Appellant‘s judgment of sentence with respect to her cruelty to animals conviction, and discharge Appellant as to her cruelty to animals conviction.
¶ 2 The relevant facts of this case were set forth fully in the trial court‘s Pa.R.A.P. 1925(a) oрinion, filed September 11, 2006, as follows:
Detective J.R. Smith, of the City of Pittsburgh Police Department, testified that he and his partner, Detective Timothy Rush, were assigned to the “cold case” homicide squad in 2004. They were assigned to investigate seven old unsolved homicide cases, including [the present] case, which involved the death of two young children in a house fire in the early morning hours of July 11, 1990. After reviewing the old files from 1990, the detectives contacted [Appellant] and interviewed her on February 14, 2005. After initially giving the detectives a statement similar to the one that she had given in 1990, wherein she denied any involvement in setting the fire, she said that she wanted to tell [them] what really happened. [Appellant] indicated that [co-defendant Tequilla Fields] wanted to kill her grandmother‘s dog. [Fields] wanted to burn the dog. On the night of the incident, [Fields] gave [Appellant] a liquid to put in her purse. They went to the home of [Fields’ grandmother], Minnie Bivins. They put [Fiеlds‘] two young children to bed and told Ms. Bivins that they were leaving to get cigarettes. As they left the residence, [Fields] doused the dog, [which] was tied up on the front porch, with the liquid that was in [Appellant‘s] purse. [Fields] threw a match on the
dog[,] and it immediately became a fireball. [Appellant] dropped her purse and ran. The dog tried to follow them, but [it was] tethered on the porch. Very quickly, the entire house was engulfed in flames. [Fields and Appellant] went back up to the house and [Fields‘] grandmother was already outside. They attempted to rescue the children, but were unable to do so[, and the children died]. [Fields’ brother, Andre,] jumped out a third story window. Once the emergency and fire vehicles arrived, [Fields and Appellant] met and they made a “street pact” never to tell anyone how the fire started.
Trial court opinion, 9/11/2006, at 2-3 (citations omitted).
¶ 3 On February 15, 2005, after Appellant spoke with Detectives Smith and Rush, she was arrested. Upon being taken into сustody, Appellant was interrogated by the police regarding her involvement in the fire. While being interrogated, Appellant made several admissions regarding her involvement in the fire. Based on her admissions, Appellant was charged with the following offenses: criminal homicide;2 arson endangering persons (2 counts); arson endangering property;3 causing a catastrophe;4 cruelty to animals;5 and criminal conspiracy.6 The case proceeded through pretrial pleadings, and Appellant filed an omnibus pretrial motion that sought the following relief: (1) dismissal of the charges on the basis of the statute of limitations; (2) suppression of Appellant‘s statement made while in the custody of the police; (3) preclude admission at trial of Appellant‘s prior juvenile bad acts. Ultimately, the trial court denied all forms of relief requested in the omnibus pretrial motion.
¶ 4 Appellant was tried before a jury, and, on December 21, 2005, she was found guilty of one count of arson endangering persons, arson endangering property, causing a catastrophe, and cruelty to animals. The jury acquitted Appellant of criminal homicide, the second count of arson endangering persons, and criminal conspiracy. Following her conviction, Appellant made an oral motion to set aside her convictions based on the statute of limitations. The trial court denied this motion. On May 8, 2006, at sentencing, Appellant made a request for extraordinary relief to set aside her convictions based on the statute of limitations. The trial court denied Appellant‘s request and sentenced Appellant to an aggregate term of 18 to 60 months of incarceration.
¶ 5 Appellant filed a timely notice of appeal to this Court, and the trial court ordered her to file a concise statement of matters complained of on appeal. Appellant complied and filed the concise statement in a timely fashion. Thereafter, the trial court authored an opinion that addressed the issues presented in Appellant‘s concise statement.
¶ 6 Appellant presents the following issues for our review:
- Whether the trial court erred in denying [Appellant‘s] post-verdict motion to set aside the jury‘s guilty verdicts because the statute of limitations had run on those particular crimes?
- Whether the trial court erred in denying [Appellant‘s] pretrial omnibus motion to suppress Appellant‘s statement given during a custodial interrogation?
- Whether the trial court erred in admitting evidence of [Appellant‘s] prior bad acts committed while [she was] a juvenile?
- Whether the trial court erred in precluding [Appellant‘s] expert witness from testifying regarding the undue influence and psychological pressure an adult could exert on the fifteen year-old [Appellant]?
- Whether the trial court erred in denying [Appellant‘s] rеquest for a jury instruction regarding corruption of minors?
Appellant‘s brief, at 4 (bracketed language supplied).
¶ 7 Appellant asserts first that the trial court erred in denying her post-verdict motion to set aside the verdicts of guilty entered against her because the statute of limitations had run on those non-homicide crimes. This issue presents this Court with a pure question of law, and, as such, we exercise plenary review. See Commonwealth v. Johnson, 874 A.2d 66, 70 (Pa.Super.2005), appeal denied, 587 Pa. 720, 899 A.2d 1122 (2006). The essence of Appellant‘s argument is as follows: (1) in order to toll the statute of limitations, the Commonwealth was obligated to state in the criminal information the exception to the statute of limitations it relied upon in charging Appellant beyond the time limits set forth in the statute of limitations; and (2) the exception to the statute of limitations relied upon by the Commonwealth in
¶ 8 Historically, the purpose of statutes of limitations in Anglo-American jurisprudence has been to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of the alleged criminal act in order to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time as well as to minimize the danger of official punishment because of acts committed in the far-distant past. See Commonwealth v. Cardonick, 448 Pa. 322, 332, 292 A.2d 402, 407-8 (1972) (citation omitted). In Pennsylvania, the statute of limitations is not a constitutional right but, instead, is an act of legislative grace, whereby the government surrenders its ability to prosecute an individual after the passage of a stated period of time. See Commonwealth v. Johnson, 520 Pa. 165, 170, 553 A.2d 897, 900 (1989); see also Commonwealth v. Wilcox, 56 Pa.Super. 244, 250 (1914). However, the Pennsylvania General Assembly chose to place no limitation of time on murder prosecutions due to its policy decision that punishment of the most serious crime should outweigh the difficulties otherwise incurred in the prosecution of “stale” charges. See, e.g., Commonwealth v. Scher, 569 Pa. 284, 325, 803 A.2d 1204, 1229 (2002) (plurality).
¶ 9 The General Assembly‘s “murder exception” to the statute of limitations is codified at
A prosecution for the following offenses may be commenced at any time:
(1) Murder.
(2) Voluntary manslaughter.
(3) Conspiracy to commit murder or solicitation to commit murder if a murder results from the conspiracy or solicitation.
(4) Any felony alleged to have been perpetrated in сonnection with a murder of the first or second degree, as set forth in
18 Pa.C.S. § 2502(a) or (b) and (d) (relating to murder).
(emphasis supplied). In the present case, the Commonwealth charged Appellant with second-degree murder and, consequently, relied upon the exception set forth at
¶ 11 Appellant argues next that
¶ 12 Required as we are to construe words in statutes according to their common and approved usage, see
¶ 14 First, we observe that any criminal charge constitutes an “allegation” until proven at the conclusion of trial. It is often the case that a number of allegations arising from the same nucleus of operative fact are made by the Commonwealth against a defendant, and, also, it is often the case that these allegations are presented in separate charging documents. This is especially true where further charges become evident throughout the course of the Commonwealth‘s investigation of the event giving rise to the charges. The record reveals that the non-homicide felonies alleged by the Commonwealth against Appellant in the present case, i.e., arson endangering persons, arson endangering property, conspiracy (arson), and causing a catastrophe, were alleged by the Commonwealth to have arisen from the same operative facts as the charge of second-degree murder. Further, the homicide charges (including second-degree murder) were tried jointly with the non-homicide felony charges. Accordingly, it is clear that the non-homicide felonies charged in this case were “alleged to have been perpetrated in connection with” the second-degree murder charges already charged against Appellant. See
¶ 15 Moreover, contrary to Appellant‘s argument, it is irrelevant for purposes of our analysis that the jury acquitted her of second-degree murder. This is because the purpose of the statute of limitations is to limit an individual‘s exposure to criminal prosecution of charges made “stale” by the passage of time. See Cardonick, at 332, 292 A.2d at 407-8 (emphasis added). Indeed, our review of
¶ 16 Next, Appellant asserts that the trial court erred in denying her pretrial omnibus motion to suppress the statement she gave during a custodial interrogation. Our review of this issue is governed by the following standard:
Our standard of review in addressing a challenge to a trial court‘s denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Since the prosecution prevailed in the suppression court, we may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the trial court, we are bound by those facts and may reverse only if thе legal conclusions drawn therefrom are in error.
Commonwealth v. Minnich, 874 A.2d 1234, 1236 (Pa.Super.2005) (citation omitted).
¶ 17 Appellant argues that her statement should be suppressed because she asserted her right to remain silent and asserted her right to have her attorney present while she was questioned. See, e.g., Edwards v. Arizona, 451 U.S. 477, 481-82, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (Fifth and Fourteenth Amendment to U.S. Constitution require questioning to cease where putative defendant asserts right to remain silent; questioning must also cease if putative defendant asserts right to counsel, and questioning may resume only when counsel is present) (citation omitted). We disagree with Appellant‘s argument.
¶ 18 In reality, Appellant‘s argument regarding her assertion of her right to counsel rests upon our review of the trial court‘s credibility assessments at the suppression hearing. Appellant testified at the suppression hearing that she told the police that she was represented by counsel and that she wanted to talk to her lawyer after her аrrest. The arresting and interrogating detectives, on the other hand, each testified that Appellant did not invoke her right to counsel prior to or during questioning. Given that Appellant‘s testimony and the detective‘s testimony contradict, our standard of review precludes this Court from considering Appellant‘s present assertions of fact. See Minnich, 874 A.2d at 1236 (where prosecution prevailed at suppression hearing, Superior Court may consider only evidence of prosecution and so much of evidence presented by appellant as remains uncontradicted when read in context of the record as a whole). Further, our reading of the record indicates that the trial court‘s factual findings are supported by the record, and, as such, we cannot now overturn them. Id., 874 A.2d at 1236.
¶ 19 Appellant‘s argument regarding her assertion of her right to remain silent is also without merit. The record indicates that Appellant told Detective Rush that she was angry with him for arresting her and that she was not going to talk to him. Approximately two hours later, Detective Rush inquired whether Appellant changed her mind and wanted to speak with him, and he requested Detective Dale Canofari to speak with Appellant. In turn, Detective Canofari spoke with Appellant, who then made incriminating statements to Detective Canofari.
¶ 20 Subsequent police questioning after the invocation of a defendant‘s right to remain silent is not a per se violation of that right. Rather, the police may attempt to question a defendant a second time after the defendant‘s initial invocation of her right to remain silent in order to determine if the defendant wishes to speak further to the police voluntarily, where the police “scrupulously honor” the defendant‘s initial invocation of the right to remain silent. See Commonwealth v. Mignogna, 401 Pa.Super. 188, 585 A.2d 1, 5-6 (1990) (citation omitted). The question of whether the police have “scrupu-
¶ 21 The record demonstrates unequivocally that the interrogating detectives advised Appellant of her Miranda rights, that Detective Rush ceased interrogating Appellant when she told him that she did not wish to speak with him, and that the second interrogation took place approximately two hours later with Detective Canofari acting as the interrogator. Seе Mignogna, 585 A.2d at 6. Likewise, the record indicates that Detective Canofari spoke with Appellant regarding her general background information and that, only after she agreed to speak with him about the fire, did he question her regarding her activities on the night of the fire. We are satisfied that the actions of Detectives Rush and Canofari did not violate Appellant‘s right to remain silent. Id., 585 A.2d at 6.
¶ 22 Although the second interrogation did not occur in a different location than the first interrogation, this factor cannot be considered dispositive because there were no other facts demonstrating that the police acted coercively in order to force Appellant into abandoning her right to remain silent. Cf. Mignogna, 585 A.2d at 6 (focus of inquiry should be determination of whether the official purpose of resuming questioning was to entice the arrestee to abandon her right to remain silent or simply to find out whether she had a change of mind). Likewise, Appellant‘s initial assertion of her right to remain silent was qualified, i.e., she indicated to Detective Rush that she did not wish to speak with him because she was angry with him for arresting her. Here, in accordance with Appellant‘s stated preference, another detective spoke with her and did so in a neutral fashion after reiterating her Miranda rights. Consequently, it is clear that the actions of the detectives were not undertaken to entice Appellant into abandoning her right to remain silent but were instead undertaken to determine whether she changed her mind about speaking to them. Id., 585 A.2d at 6. Accordingly, we are satisfied that Appellant‘s voluntary incriminating statements were not obtained in violation of her right to remain silent. Id., 585 A.2d at 6. Therefore, Appellant‘s issue fails.
¶ 23 Appellant‘s third and fourth issues challenge the trial court‘s admission of prior bad acts evidence and its preclusion of certain testimony from her еxpert witness. Consequently, we will consider these issues jointly. Questions regarding the admission of evidence are left to the sound discretion of the trial court, and we, as an appellate court, will not disturb the trial court‘s rulings regarding the admissibility of evidence absent an abuse of that discretion. Commonwealth v. Whitaker, 878 A.2d 914, 923 (Pa.Super.2005).
¶ 24 Appellant contends that the trial court abused its discretion by permitting the Commonwealth to introduce evidence that, as a juvenile, she was involved in an incident in which an accelerant was used to start a fire in a juvenile detention facility. At trial, the Commonwealth sought to introduce the evidence of Appellant‘s involvement with an accelerant fire as a juvenile to demonstrate that she knew the liquid given to her by Fields was an accelerant from its smell and that it could be
¶ 25 Generally, evidence of prior bad acts is not admissible for the sole purpose of demonstrating a criminal defendant‘s propensity to commit crimes. See Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1283 (Pa.Super.2004). However, “prior bad acts” evidence may be admissible in certain circumstances where it is relevant for some other legitimate purpose and not utilized solely to blacken the defendant‘s character. Id., 856 A.2d at 1283. It is well-established that reference to prior criminal activity of the accused may be introduced where the evidence is relevant to some purpose other than demonstrating defendant‘s general criminal propensity, such as to demonstrate the following: (1) motive; (2) opportunity; (3) intent; (4) preparation; (5) plan; (6) knowledge; (7) identity; or (8) absencе of mistake or accident. See Pa. R.E. 404(b)(2). When utilized to demonstrate these factual questions in a criminal case, “prior bad acts” evidence is admissible only when its probative value outweighs its prejudicial effect. See Pa.R.E. 404(b)(3).
¶ 26 We are satisfied that the trial court did not abuse its discretion by admitting the evidence of Appellant‘s juvenile involvement with an accelerant fire. First, it is clear that the evidence of Appellant‘s knowledge of the nature of the liquid given to her was crucial for the Commonwealth to establish Appellant‘s intent to assist Fields in setting the dog on fire and thereby to prove Appellant‘s liability as an accomplice and co-conspirator. See Melendez-Rodriguez, 856 A.2d at 1283. Consequently, its probative value far outweighed its prejudicial effect. See Commonwealth v. Fisher, 452 Pa.Super. 564, 682 A.2d 811, 816-17 (1996). Moreover, after the evidence was admitted for this limited purpose, the trial court issued a cautionary instruction to the jury that explained to the jury how it should consider the evidence in arriving at its verdict. We presume that the jury followed this instruction and that it was sufficient to cure any possible prejudice resulting to Appellant by the admission of this evidence. See Melendez-Rodriguez, 856 A.2d at 1287. Accordingly, Appellant‘s argument fails.
¶ 27 Appellant‘s second evidentiary argument fares no better than her first. Appellant sought to introduce the testimony and report of Dr. Paul M. Bernstein, a psychologist, to demonstrate that she was subject to the corrupting influence of Fields, her elder co-defendant. This type of defense could be characterized only as a “diminished capacity” defense. See Commonwealth v. Sasse, 921 A.2d 1229, 1236-37 (Pa.Super.2007) (discussing “diminished capacity” defense). The “diminished capacity” defense is available only as a defense to first-degree murder and not to second-degree murder, which was the offense charged against Appellant. See Commonwealth v. Swartz, 335 Pa.Super. 457, 484 A.2d 793, 796 (1984). Likewise, it is not available as a defense for other “specific intent” non-homicide offenses. Id., 484 A.2d at 796. Accordingly, Dr. Bernstein‘s report and testimony were not relevant to the issues being tried before the trial court, and, as such, the trial court did not abuse its discretion by precluding the jury from considering Dr. Bernstein‘s report or testimony. Id., 484 A.2d at 796.7
¶ 29 In conclusion, we affirm Aрpellant‘s judgment of sentence for arson endangering persons and related offenses, we reverse her judgment of sentence for cruelty to animals, and we discharge Appellant as to her cruelty to animals conviction because the conviction violates the statute of limitations.8
¶ 30 Judgment of sentence affirmed in part, reversed in part. Jurisdiction relinquished.
¶ 31 DANIELS, J. files a Dissenting Opinion.
DISSENTING OPINION BY DANIELS, J.:
¶ 1 Here, Appellant was charged with two counts of criminal homicide (
¶ 3 Appellant has maintained, all along, that the statute of limitations barred her prosecution for the non-homicide related offenses. Her omnibus pre-trial motion to dismiss all charges was denied, as was her post-trial motion to set aside the guilty verdicts on the non-homicide charges. This appeal addresses the issue of the trial court‘s failure to set aside the jury‘s guilty verdicts—on the ground that the applicable statute of limitations as to each bars these convictions.
¶ 4 Nevertheless, the majority has affirmed Appellant‘s convictions for one count each of three felonies: arson endangering persons pursuant to
¶ 6 The majority relies upon Commonwealth v. Cardonick, 448 Pa. 322, 292 A.2d 402 (1972), for the proposition that the commencement of prosecution, rather than judicial conclusion of the same, is the key point in determining whether the statute of limitations may be ignored with regard to the felonies “alleged” to have been perpetrated in connection with a murder of the first or second degree. However, it should be noted at the outset that Cardonick did not deal with first or second degree murder at all, but rather with allegations of forgery and attempted tax evasion. Additionally, the question in Cardonick was whether an initial set of indictments, although subsequently quashed, tolled the statute of limitations such that a second set of indictments, which would otherwise have been time-barred, were not violative of the statute of limitations. These two aspects of Cardonick alone make it inapposite to the factual context in the case at Bar. Finally, we note that in Cardonick, the Supreme Court of Pennsylvania not only expressed the view that statutes of limitations are to be liberally construed in favor of defendants and against the Commonwealth, but ultimately reversed this Court‘s orders affirming the judgments of sentence and found in favor of the defendants in that case. Cardonick, 448 Pa. at 330, 292 A.2d at 407.
¶ 7 Courts in other jurisdictions have addressed this very issue, and I find their decisions and reasoning to be most compelling. In People v. Nunez, 319 Ill.App.3d 652, 253 Ill.Dec. 516, 745 N.E.2d 639 (Ill.App. 1 Dist.2001), defendant was charged with two counts each of first degree murder and felony murder predicated upon an underlying felony of aggravated battery. Following a bench trial, defendant was found guilty of only the underlying felony of aggravated battery. He appealed based upon his claim that the prosecution for aggravated battery was time barred. The Appellate Court of Illinois addressed, at length, the issue of whether or not defendant had waived his right to raise thе defense of the statute of limitations as to the aggravated battery charge, but once it decided that he had not in fact waived that right, it reversed his conviction by stating:
We are mindful that the murder statute has no statute of limitations; however, ... [w]ithout such waiver, defendant was improperly subjected to criminal liability when the trial court entered a finding of guilty on the lesser included offense of aggravated battery ... Defendant was acquitted on the charges of murder and felony murder; therefore, double jeopardy prohibits retrial on these charges. Further, defendant‘s conviction of the lesser included offense of aggravated battery violates the statute of limitations.
Nunez, 253 Ill.Dec. 516, 745 N.E.2d at 645, 646, 647 (Emphasis Added).
¶ 8 Similarly, the Supreme Court of New Jersey addressed this issue in State v. Short, 131 N.J. 47, 618 A.2d 316 (N.J. 1993). In that case, the defendant was indicted for murder and the jury was instructed on the murder charge, as well as on the lesser included manslaughter offenses (which, at that time, was subject to a five-year period of limitations). The Supreme Court of New Jersey upheld the trial court‘s decision to allow the defendant to “preserve his right under the applicable statute of limitations not to be convicted
[I]n New Jersey, the statute of limitations in a criminal statute is tantamount to an absolute bar to the prosecution of the offense ... the statutory bar would apply when manslaughter is sought to be charged as a lesser included or alternative offense to a greater or still more serious crime.
...
[W]e are unable to conclude that the Legislature intended to weaken the strength of the bar of the statute of limitations in criminal causes generally or, more specifically, to do so with respect to un-indicted lesser included offenses.
Short, 618 A.2d at 320, 321 (Emphasis Added).
¶ 9 Here, as noted above, Appellant never waived her right to assert the defense of the statute of limitations. She raised it in her omnibus pre-trial motion to dismiss all charges against her, which was denied by the trial court prior to the commencement of trial. She reasserted such defense once again in her post-trial motion to set aside the jury‘s guilty verdicts on the non-homicide related charges of which she was found guilty by the jury. As the Illinois and New Jersey cases referenced above, as well as others17, illustrate, the defense of the statute of limitations is a significant one that may not be “blithely ignored” by courts. State v. Short, 618 A.2d at 320. Here, both the majority opinion and the opinion of the trial court “blithely ignore” the jury‘s verdict, which acquitted Appellant of the criminal homicide charges and the “reckless endangerment of another person” arson charge referеnced at
¶ 10 The jury‘s verdict of not guilty on the criminal homicide charges triggered Appellant‘s right to re-assert the defense of the statute of limitations with regard to the underlying (non-homicide) felony charges. In the words of this Court, the statute of limitations became a “material element” of judicial inquiry following the jury‘s not guilty verdicts as to the homicide charges in this case. Commonwealth v. Munchinski, 401 Pa.Super. 300, 585 A.2d 471, 483 (1990). The statute of limitations for causing a catastrophe is two years; arson and conspiracy charges must be prosecuted within five years.19 Thus, the time within which Appellant could have been prosecuted for these crimes, but for the Commonwealth‘s decision to prosecute her for felony-murder in connection therewith, would have expired in July, 1992 and July, 1995, respectively. Thereafter, in this writer‘s view, any prosecution on these non-homicide charges was time barred. It would be manifestly unfair and a distortion of the law to hold otherwise.
¶ 11 From the standpoint of interpreting
¶ 12 My reading of Section 5551(4) focuses on the statute‘s use of “alleged” in only one instance—to refer to the non-murder felony or felonies at issue. Interestingly, the statute does not also use “alleged” to refer to the murder at issue. If, instead, the statute were to say that prosecution could be commenced at any time for “any felony alleged to have been perpetrated in connection with an alleged murder of the first or second degree” (Emphasis Added), then its words would appropriately mirror the facts here. However, such is not the case. As it now reads, the statute is clearly ambiguous without the use of an additional “alleged“. As such, this ambiguous statutory language should thus be construed in favor of the defendant and against the Commonwealth until such time as the legislature may choose to clarify the language of the statute.
¶ 13 Put another way, the language of Section 5551(4) pre-supposes that the substantive crime of first or second degree murder will be proven beyond a reasonable doubt, in order to support the conviction of any felony that has been “alleged” to have been perpetrated in connection with the murder of the first or second degree. Absent such a conviction of first or second degree murder, the “felony alleged” should rise or fall on the basis of its own substantive statute of limitations. For, absent that allegation in the first instance, a stale or time-barred felony prosecution would not withstand the jurisdictional challenge of the statute of limitations. The prosecution would then enjoy an unlimited period of time within which to achieve a conviction of such “alleged felonies“, even if the murder charge itself could not be proven beyond a reasonable doubt.
¶ 14 Finally, the jury acquitted Appellant on the form of arson endangering persons as embodied in
¶ 15 Consequently, there is no rhyme or reason in permitting a conviction for an “alleged felony” to stand, beyond its own period of limitation, if the murder in the first or second degree itself is not proven beyond a reasonable doubt to the satisfaction of the fact finder. For, to reason otherwise would permit a prosecutor to selectively allege that felonies “[had] been committed in connection with a murder of the first or second degree,” without any reasonable belief that the murder itself could be proven, in order to support a conviction of “any felony alleged to have been perpetrated” in connection with a charge of first or second degree murder, even if it were clear that the murder charge itself could not be proven beyond a rеasonable doubt.
¶ 16 Such would set a very dangerous precedent, in my view. Nor do I believe that the Pennsylvania Legislature intended to create such a “Catch-22“, absent the Commonwealth‘s ability to prove a defendant guilty beyond a reasonable doubt of first or second degree murder as a predicate to obfuscating such defendant‘s right to raise the jurisdictional defense of the statute of limitations as to those felonies that would, in fact, be time barred.
¶ 17 Thus, I respectfully and most vociferously dissent.