J-A20044-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
EDWARD YALE, :
:
Appellee : No. 178 EDA 2014
Appeal from the Order entered on January 8, 2014
in the Court of Common Pleas of Monroe County,
Criminal Division, No. CP-45-CR-0001540-2013
BEFORE: FORD ELLIOTT, P.J.E., MUNDY and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 23, 2014
The Commonwealth of Pennsylvania appeals from the Order granting
Edward Yale’s (“Yale”) Motion In Limine precluding the introduction of
statements and writings of the victim, Joan Yale (“Joan”), and potentially
limiting the photographs of the crime scene. We affirm in part and reverse
in part.
On March 22, 2001, Joan died in the residence she shared with her
husband, Yale. Yale called the police and told them that Joan had fallen
down the steps. The police observed that Joan had received deep
lacerations, bruising, and scrapes to her face. Yale told the police that only
he and Joan were present in the residence at the time of her death.
In April 2013, a Monroe County Investigating Grand Jury
recommended that criminal charges be filed against Yale. Yale was
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subsequently charged with criminal homicide and tampering with physical
evidence.1 On September 24, 2013, Yale filed an Omnibus Pre-trial Motion.
As part of the Motion,2 Yale included a Motion In Limine seeking to prohibit
the Commonwealth from introducing statements made by Joan to others
about her relationship with Yale and a written statement obtained from
Joan’s purse that detailed problems in her relationship with Yale. On
November 8, 2013, the Commonwealth filed a Motion In Limine requesting
the introduction of photographs of the crime scene. The trial court held a
hearing on the pre-trial Motions. Subsequently, the trial court granted Yale’s
Motion In Limine, preventing the introduction of Joan’s letter and various
out-of-court statements. However, the trial court also found that where the
witnesses were present and heard Joan and Yale’s arguments and any other
statements made by Yale, such testimony was admissible. The trial court
also denied as moot the Commonwealth’s Motion, as the parties had reached
a stipulation as to the admissibility of the photographs. However, the trial
court indicated that it would disallow any inflammatory or cumulative
photographs.
The Commonwealth filed a timely Notice of Appeal and a Statement in
1
See 18 Pa.C.S.A. §§ 2501(a); 4910(1).
2
Yale raised various other claims in his Omnibus Pre-trial Motion that are
not relevant to this appeal. The trial court denied in part and granted in part
Yale’s remaining claims in his Omnibus Pre-Trial Motion.
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compliance with Pennsylvania Rule of Appellate Procedure 311(D).3
Thereafter, the Commonwealth filed a court-ordered Pennsylvania Rule of
Appellate Procedure 1925(b) Concise Statement. The trial court issued an
Opinion.
On appeal, the Commonwealth raises the following questions for our
review:
1. Did the lower court abuse its discretion when it precluded
from evidence [Joan’s] expressions of fear of [Yale], her
intention to end their relationship, [and] expressions
manifesting the deterioration of the relationship, where that
evidence shows the presence of ill-will, a possible motive for
the killing, an escalation of discord, and rebuts the defense of
accident?
2. Did the lower court commit error in disregarding a stipulation
of counsel concerning the introduction of photographs of
[Joan] and [the] crime scene in a homicide trial by deciding
that it may still sua sponte preclude photographs if it
determines that they are inflammatory or cumulative?
Brief for the Commonwealth at 11.
In its first claim, the Commonwealth contends that the trial court
should have denied Yale’s Motion In Limine as the statements at issue
demonstrate the course of events leading to Joan’s death. Id. at 14, 28.
The Commonwealth points out that the statements were relevant to its
theory of the case because Yale denied he killed Joan, claimed that Joan died
3
Rule 311(D) states that “[i]n a criminal case, under the circumstances
provided by law, the Commonwealth may take an appeal as of right from an
order that does not end the entire case where the Commonwealth certifies in
the notice of appeal that the order will terminate or substantially handicap
the prosecution.” Pa.R.A.P. 311(D).
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by an accident and denied the existence of marital discord between the
parties. Id. at 14, 25. The Commonwealth argues that while the
statements constitute hearsay, they are admissible under the state of mind
exception to the hearsay rule at Pennsylvania Rule of Evidence 803(3). Id.
at 15-23, 25-28.4 The Commonwealth specifically argues that the
statements regarding (1) Joan’s refusal of Yale’s demands to have his name
put on the deed of the home and on certain certificates of deposit (“CD”)
demonstrated proof of motive; (2) several statements made by Joan
evidenced her fear of Yale; and (3) and multiple statements by Joan showing
the escalation of marital problems and her desire to live apart from Yale
were admissible under Rule 803(3). Id. at 15-23, 25-28; see also id. at 15
4
The Commonwealth asserts that Joan’s refusal to put Yale’s name on the
deed of the home or other documents could be admitted under the present
sense exception to the hearsay rule at Pa.R.E. 803(1). See Brief for the
Commonwealth at 24 (wherein the Commonwealth cites to specific
statements made by Joan to her daughter-in-law, Yvette Mary Litts
(“Yvette”), and her son, Ronald Litts (“Ronald”)). However, the
Commonwealth does not provide any pertinent analysis or cite to any
relevant case law to support its assertion. See Pa.R.A.P. 2119(a) (stating
that argument must be supported by pertinent analysis and citation to
relevant law). Thus, we conclude that this assertion is waived on appeal.
Furthermore, even if the assertion was not waived, the Commonwealth is
not entitled to relief. Indeed, the statements that the Commonwealth seeks
to admit under the present sense impression exception were statements
about past events, without any indication of how much time had elapsed
between the statements and the occurrence, and did not exemplify any
impressions that Joan may have had at the time of the occurrence in
question. See Pa.R.E. 803(1) (stating that a present sense impression is a
statement describing an event made while the declarant was perceiving the
event or immediately thereafter); see also Commonwealth v. Stephens,
74 A.3d 1034, 1037 (Pa. Super. 2013) (stating that little time or no time
must exist between the occurrence and the statement, which operates to
negate the likelihood of a deliberate or conscious misrepresentation).
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(arguing that the statements “allow the Commonwealth to point to a
possible motive for the killing, thus, ruling out accident and at the same time
helping to establish intent.”). The Commonwealth claims that the
statements at issue are not being offered for the truth of the matter
asserted, but rather to demonstrate Yale’s motive to do Joan harm and rebut
the defense of accident by evidencing Joan’s intent to terminate the
relationship and her failure to acquiesce to Yale’s demands. Id. at 28. The
Commonwealth cites to numerous cases to support its argument, but
specifically argues that the trial court’s reliance upon Commonwealth v.
Thornton, 431 A.2d 248 (Pa. 1981), was misplaced, and that the trial court
should have relied upon Commonwealth v. Sneeringer, 668 A.2d 1167
(Pa. Super. 1995), in admitting the evidence. See Brief for the
Commonwealth at 14, 27-28.
Our standard of review is as follows:
When ruling on a trial court’s decision to grant or deny a motion
in limine, we apply an evidentiary abuse of discretion standard of
review. The admission of evidence is committed to the sound
discretion of the trial court, and a trial court’s ruling regarding
the admission of evidence will not be disturbed on appeal unless
that ruling reflects manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support to be clearly
erroneous.
Commonwealth v. Moser, 999 A.2d 602, 605 (Pa. Super. 2010) (citation
omitted).
Hearsay “is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
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matter asserted.” Pa.R.E. 801(c). Hearsay “is not admissible except as
provided by other rules prescribed by the Pennsylvania Supreme Court, or
by statute.” Pa.R.E. 802. Relevantly, the Rules of Evidence provide a “state
of mind” exception to the hearsay rule, which states the following:
(3) Then–Existing Mental, Emotional, or Physical
Condition. A statement of the declarant’s then-existing state of
mind (such as motive, intent or plan) or emotional, sensory, or
physical condition (such as mental feeling, pain, or bodily
health), but not including a statement of memory or belief to
prove the fact remembered or believed unless it relates to the
validity or terms of the declarant’s will.
Pa.R.E. 803(3).5
Pursuant to the state of mind hearsay exception, where a
declarant’s out-of-court statements demonstrate her state of
mind, are made in a natural manner, and are material and
relevant, they are admissible pursuant to the exception. Out-of-
court declarations that fall within the state of mind hearsay
exception are still subject to general evidentiary rules governing
competency and relevancy. Accordingly, whatever purpose the
statement is offered for, be it to show the declarant’s intention,
familiarity, or sanity, that purpose must be a “factor in issue,”
that is, relevant. Evidence is relevant if it logically tends to
establish a material fact in the case, if it tends to make a fact at
issue more or less probable, or if it supports a reasonable
inference or presumption regarding the existence of a material
fact.
Commonwealth v. Laich, 777 A.2d 1057, 1060-61 (Pa. 2001) (citations
omitted); see also Commonwealth v. Moore, 937 A.2d 1062, 1070 (Pa.
2007) (stating that state of mind evidence is relevant where an issue of self-
5
This version of the Rule took effect on March 18, 2013. “The rule changes
result in no substantive change and are intended to conform the
Pennsylvania rules, which reference the federal rules of evidence, with the
stylistic changes made to the federal rules[.]” Schmalz v. Manufacturers
& Traders Trust Co., 67 A.3d 800, 804 n.4 (Pa. Super. 2013).
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defense, suicide or accidental death is raised by the defendant);
Commonwealth v. Luster, 71 A.3d 1029, 1041 (Pa. Super. 2013) (en
banc) (stating that out-of-court statements by homicide victims are
generally admissible under the state of mind exception “when the
statements are relevant for some other purpose, such as proof of motive or
malice.”).
This Court recently recognized and addressed the conflict between the
decisions in Thornton and Sneeringer as follows:
In Thornton, the [appellant], charged with homicide, admitted
that he shot and killed the victim but claimed self-defense and
asserted that he had been provoked by the victim. Thornton,
431 A.2d at 249. The night before the killing, the police arrested
the victim and found that he was in possession of a gun. When
asked why he was carrying a gun, the victim responded that he
was carrying it for protection because “the Thornton brothers
were after him.” Id. at 251. Over the defendant’s hearsay
objection, the trial court permitted the officer’s testimony. Our
Supreme Court ultimately held that the trial court erroneously
admitted the victim’s statement under the “state of mind”
exception:
The Commonwealth argues that [the victim’s] declaration
that he wanted protection because “the Thornton brothers
were after him” was admissible to establish fear on the part
of [the victim] and thus comes within the “state of mind”
exception to the rule against hearsay. It is true that the
declaration perhaps tends to establish that the victim … was
fearful of the Thorntons. However, the victim’s state of
mind was not a matter in issue in the case. It was
appellant’s state of mind, not that of the victim, which was
material to establish the degree of guilt, if any, on the
charge of criminal homicide.
Only when the declaration is considered for the truth of the
matter asserted, that appellant and his brother “were after”
the victim, does the declaration become relevant, that is,
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both material to and probative of appellant’s intent to kill.
However, when considered for its substantive truth, the
declaration, although relevant, is incompetent and hence
inadmissible because it is hearsay not within any exception.
Thus appellant’s objection to admission of the declaration
should have been sustained and the testimony excluded.
Id. (internal citation omitted).
However, in [Sneeringer,] this Court held that a lower court did
not err when it admitted hearsay testimony concerning a victim’s
statement that she intended to end her relationship with the
defendant accused of killing her. Applying the “state of mind”
exception, this Court reasoned as follows:
The fact that the victim intended to end her relationship
with appellant made it more probable that she did end the
relationship, than if she had no such intention. Moreover, if
the victim did end her relationship with appellant, then such
a factor is probative of appellant’s motive. The mere fact
that the victim expressed an intent to end her relationship
with appellant does not establish that she did in fact do so.
It does, however, allow the jury to infer appellant’s motive
from such a revelation, and is properly considered in
resolving the question of whether appellant killed the victim.
Sneeringer, 668 A.2d at 1171–72.
In Levanduski, an en banc panel of this Court recognized an
apparent conflict between our Supreme Court’s ruling in
Thornton and the panel decision of this Court in Sneeringer in
their application of the “state of mind” exception. The “state of
mind” exception at issue in Levanduski involved a letter,
written by the victim, [Mr.] Sandt, describing several letters he
found in which the appellant (the victim’s common law wife) had
written and received from a man ([Mr.] Fransen) that he
suspected of being his wife’s lover. [Mr.] Sandt’s letter
described that in one of the appellant’s letters, she discussed
getting “rid of [Sandt] so [the appellant and her lover] could be
together.” Levanduski, 907 A.2d at 9. Furthermore,
[i]n his letter, Mr. Sandt wrote about the relationship
between [a]ppellant and Mr. Fransen and referred to:
[a]ppellant’s allegations of spousal abuse; [a]ppellant’s
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desire to further her relationship with Mr. Fransen; Mr.
Sandt’s own demand for his share of the marital property;
and[] the possible nexus between [a]ppellant and Mr.
Fransen, and Mr. Sandt’s missing .22 caliber revolver.
Id. at 18.
… [T]he Levanduski Court did not reject the Sneeringer
approach outright, but instead distinguished itself on the facts
and, consequently, applied the general rule of Thornton. In
fact, the Levanduski Court noted an approach similar to that
applied in Sneeringer had been applied by our Supreme Court
in Commonwealth v. Stallworth, 566 Pa. 349, 781 A.2d 110,
118 (2001).[6] However, the Levanduski [C]ourt refused to
apply the Sneeringer standard because:
The letter in the instant case does not generate the same
probative value as the victims’ statements in the cited cases
[(Sneeringer and Stallworth)]. Here, Mr. Sandt’s letter is
mostly his commentary on the relationship between the
co[-]defendants. In fact, the trial court admitted the letter
as evidence of the relationship between [a]ppellant and Mr.
Fransen. On the other hand, the letter conveys a very
mixed message regarding the state of the relationship
between [a]ppellant and Mr. Sandt, vacillating between
possible separation and promises of reconciliation.
Significantly, the letter does not contain any threats made
6
In Stallworth, the Pennsylvania Supreme Court addressed the
admissibility of out-of-court statements in a situation where the defendant
and the decedent were in a domestic relationship, and the deceased victim
had, prior to her death, filed a protection from abuse (“PFA”) petition against
the defendant. Stallworth, 781 A.2d at 117. The Court affirmed the
decision of the trial court to admit statements contained in the petition on
the basis that the challenged statements were not hearsay because they
were not being offered to prove the truth of their content. Id. at 118. The
Supreme Court specifically held that, while the victim’s statements contained
in the PFA petition could be offered as evidence of the victim’s state of mind
regarding the relationship and “the malice and/or ill-will she perceived,” the
statements could not be admitted as substantive evidence that the appellant
committed the acts described in the petition. Id. In so concluding, the
Court noted that “an out-of court statement by a murder victim may be
admitted to establish the motive of the defendant when those statements
are not offered to prove the truth of the matter asserted.” Id.
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on Mr. Sandt’s life, by either [a]ppellant or Mr. Fransen. At
most, the letter represents pure conjecture well-seasoned
with romantic hyperbole.
Levanduski, 907 A.2d at 20.
***
To the extent Sneeringer is still viable, Levanduski suggests a
case-by-case approach whereby Thornton stands as the general
rule under which a limited exception may exist when the
inference generated by admission of the hearsay statement is
strong and highly probative.
Commonwealth v. Green, 76 A.3d 575, 579-81 (Pa. Super. 2013)
(footnote added).
In Green, the trial court admitted statements by a shooting victim to
two witnesses under the state of mind exception to the hearsay rule. Id. at
579. According to the testimony of the witnesses, the victim stated that she
“needed to get away” from the appellant, that she was afraid of the
appellant, and that she did not want to “go with him” anymore. Id. This
Court ruled as follows:
Considering the statements as evidence of [a]ppellant’s motive,
it appears impossible to demonstrate such an inference without
accepting the statements for the truth of the matter asserted.
To be relevant as to [a]ppellant’s motive, we would have to
accept that the [v]ictim was fearful of [a]ppellant and that she
was attempting to end their relationship. To accept those
conclusions as the basis for [a]ppellant’s motive is to accept the
literal “truth” of the hearsay statements. If the [v]ictim was not,
in fact, fearful of [a]ppellant and in the process of ending their
relationship, then there was nothing about the hearsay
statements that provided evidence of motive. Put more
succinctly, it is only when the admitted hearsay statements are
taken as truthful that they provide competent evidence of
motive. Thornton rejected the admission of such statements
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under the “state of mind” exception to the hearsay rule. Either
these statements were relevant but inadmissible as hearsay
without an applicable exception, or they were not hearsay, in
which case they were irrelevant.
Id. at 581. Thus, this Court concluded that the trial court abused its
discretion in admitting the hearsay statements under the “state of mind”
exception. Id. at 582.
However, we note that in reaching its decision, the Green Court did
not consider the other decisions of this Court and the Supreme Court that
address the state of mind exception. In Commonwealth v. Collins,
703 A.2d 418 (Pa. 1997), the trial court permitted out-of-court statements
made by the homicide victim that she intended to meet with the defendant
and that she was concerned that the defendant would harm her if she
hindered his illegal activities. Collins, 703 A.2d at 425. The Supreme Court
held that the statements were properly admitted as they provided
circumstantial evidence that the victim did meet with the defendant and
permitted the jury to conclude that the defendant had the opportunity to kill
the victim. Id.
In Commonwealth v. Chandler, 721 A.2d 1040 (Pa. 1998), the trial
court admitted into evidence “eyewitness observations of [the victim’s]
family and co-workers, which were not hearsay, and ... statements [the
victim] made concerning her negative feelings about [the defendant] and
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her relationship with him.”7 Chandler, 721 A.2d at 1045. Our Supreme
Court concluded that the victim’s “statements were admissible under the
‘state of mind’ exception to the hearsay rule because [the victim’s] opinion
of [the defendant] and her marriage to him went to the presence of ill[-]will,
malice, or motive for the killing.” Id.
Additionally, in Commonwealth v. Fletcher, 750 A.2d 261 (Pa.
2000), abrogated on other grounds by Commonwealth v. Freeman, 827
A.2d 385, 400 (Pa. 2003), the Supreme Court addressed, in the context of
an ineffectiveness of counsel claim, a homicide victim’s out-of-court
statement that he had smoked drugs belonging to the defendant. Fletcher,
750 A.2d at 275-76. The Supreme Court held that the victim’s statement
established his state of mind regarding his relationship with defendant and
was thus admissible under the state of mind hearsay exception to establish
the presence of ill-will, malice, or motive for the killing. Id. at 276.
In Commonwealth v. Puksar, 740 A.2d 219 (Pa. 1999), the disputed
evidence involved two conversations that had taken place between the
defendant and his brother, who was one of the deceased victims of the
homicides. Puksar, 740 A.2d at 224. In each instance, a witness
overheard the conversations, one of which was a dispute over model trains 8
7
The Supreme Court does not set forth the specific statements made by the
victim with regard to her negative feelings toward the defendant.
8
Scattered boxes of model trains were found around the victim. Puksar,
740 A.2d at 223.
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and the other consisted of the parties yelling at each other about an
unidentified matter. Id. The Supreme Court held that testimony was
admissible as non-hearsay testimony because the truth of the content of the
conversations was not at issue. Id. at 225. The Supreme Court further held
that the conversations, which were apparently heated arguments, evinced
“ill-will between the brothers” regardless of the truth of what was said by
either speaker. Id.
In Luster, supra, statements by a murder victim to her friends that
she was afraid of appellant, that appellant “was going to do something real
bad to her,” and that appellant was “trying to kill” her were introduced at
trial. Luster, 71 A.3d at 1041. This Court, sitting en banc, recognized that
a victim’s state of mind is only admissible where the victim’s state of mind is
a factor at issue in the case. Id. This Court concluded that the statements
were admissible under the state of mind exception to the hearsay rule
because the appellant had denied responsibility of the murder and thus, the
statements evidenced appellant’s ill-will and malice toward the victim. Id.
at 1042; see also Commonwealth v. Kunkle, 79 A.3d 1173, 1185 (Pa.
Super. 2013) (concluding that the admission of hearsay statements by the
decedent that he was scared of appellant and that appellant would be to
blame if decedent died was proper under Pa.R.E. 803(3) and Luster, as the
statements reflected appellant’s ill-will and malice toward decedent).
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However, not all of the recent Pennsylvania Court decisions favor the
admissibility of these out-of-court statements. In Commonwealth v.
Laich, 777 A.2d 1057 (Pa. 2001), the defendant was prosecuted for the
homicides of his former girlfriend and her paramour. Id. at 1059. The
defendant admitted to the killings, but sought to refute the Commonwealth’s
claim of murder in the first degree and instead sought a verdict of voluntary
manslaughter. Id. at 1060. The trial court permitted the Commonwealth to
introduce testimony from a witness regarding the victim’s statement to her
that the defendant had threatened that “if he couldn’t have her, [and] if he
ever caught her with another man, that he would kill them both.” Id. The
Laich Court held that the trial court erred in admitting this evidence, as the
state of the victim’s relationship with the defendant was irrelevant to his
degree of guilt. Id. at 1062. The Court pointed out that defendant admitted
to the murders, but argued that he had only done so with provocation. Id.
In light of this defense, it was the defendant’s state of mind at the time of
the killings that was relevant as to whether he committed the crimes with
premeditation or whether, as he claims, he was acting with a “sudden and
intense passion resulting from serious provocation.” Id. Accordingly, the
trial court erred in allowing the out-of-court statements because such
testimony was not relevant to the case. Id.
In Moore, a capital case, the Commonwealth sought to introduce a
homicide victim’s statements to his father, sister, and friend regarding the
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ongoing bullying by appellant “under the state of mind exception to the
hearsay rule in order to establish the presence of ill[-]will, malice, or motive
for the murder.” Moore, 937 A.2d at 1070. The appellant argued that the
testimony was inadmissible under the state of mind exception. Id. The
appellant specifically argued that the statements were irrelevant to any issue
in the case as the Commonwealth had to prove that the killing was willful,
deliberate, and pre-meditated. Id. The appellant claimed that it was his
state of mind, rather than the victim’s, that was relevant. Id. Further, the
appellant did not present a defense of self-defense or accident, which would
implicate the victim’s state of mind, but instead sought to establish
reasonable doubt as to the identity of the shooter. Id. The Supreme Court
reiterated that while the statements could be admissible as circumstantial
evidence of the victim’s fear of appellant, they could not be offered for the
truth of the matters contained therein. Id. at 1072. The Supreme Court
held that because the Commonwealth utilized the truth of the statements as
substantive evidence at trial, the trial court erred in admitting the hearsay
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statements. Id. at 1072-73.9
While we acknowledge apparent conflicting decisions applying the
state of mind exception,10 the case law confirms that an out-of court
statement by a homicide victim is admissible under the state of mind
exception of the hearsay rule as long as it is relevant and probative of some
9
We note that the Moore Court also stated that it did not expressly overrule
the Fletcher decision, but that “the existing and subsequent Stallworth
and Laich decisions already curtail an expansive reading of Fletcher’s
reasoning.” Moore, 937 A.2d at 1073 n.7; see also Commonwealth v.
Fletcher, 986 A.2d 759, 784 (Pa. 2009) (stating that the Supreme Court
“has placed limits on the scope of the ‘state of mind’ exception since
Fletcher [] was decided, and held that a victim’s state of mind cannot be
introduced as substantive evidence that a defendant acted in conformity
therewith[.]”). The Moore Court noted that “Fletcher’s reasoning is
explicitly directed to the use of victim state of mind evidence to establish the
victim’s state of mind.” Moore, 937 A.2d at 1073 n.7.
10
This case may provide the Supreme Court of Pennsylvania, which has not
recently addressed the admissibility of out-of-court statements by a
homicide victim based upon the state of mind exception, with the
opportunity to further clarify this exception, as it is a pre-trial appeal and
involves numerous statements.
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material issue in the case.11 Laich, 777 A.2d at 1060-61; accord
Levanduski, 907 A.2d at 15-16; see also Moore, 937 A.2d at 1070. A
declarant’s state of mind is relevant if it is an element of a charge, claim or
defense such as self-defense, accident or suicide, and the statement is
probative on the question of the victim’s state of mind. Moore, 937 A.2d at
11
The Commonwealth also cites to Commonwealth v. Ulatoski, 371 A.2d
186 (Pa. 1977), for the following:
[E]vidence concerning the previous relations between a
defendant and a homicide victim is relevant and admissible for
the purpose of proving ill[-]will, motive or malice. Evidence of
prior occurrences in which the accused threatened, assaulted, or
quarrelled with the decedent may be admissible for this purpose.
This principle applies when the decedent was the spouse of the
accused. Thus, evidence concerning the nature of the marital
relationship is admissible for the purpose of proving ill[-]will,
motive or malice. This includes, in particular, evidence that the
accused physically abused his or her spouse.
Id. at 190. However, the Ulatoski Court further stated that “[t]estimony
concerning the marital relationship between a defendant and decedent, like
any other evidence, is subject to the general evidentiary rules governing
competency and relevancy.” Id. at 191. “Hence, Ulatoski did not create
an exception to the hearsay rule; nor did it contemplate that testimony
regarding marital relationships in cases such as this would be subject to a
relaxed standard of admissibility.” Commonwealth v. Myers, 609 A.2d
162, 165 (Pa. 1992). Thus, despite the holding in Ulatoski, we must
determine whether the out-of-court statements in this case are admissible
under the state of mind exception to the hearsay rule.
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1070.12 A declarant’s out-of-court statement that he intends to perform a
particular act in the future may also be relevant and admissible under this
exception to establish that the declarant acted in conformity with his/her
expressed intention. Collins, 703 A.2d at 425; Sneeringer, 668 A.2d at
1171-72. Moreover, state of mind evidence is admissible when it explains
the victim’s state of mind regarding the relationship and the malice and/or
ill-will that the victim perceived. Stallworth, 781 A.2d at 118; Kunkle, 79
A.3d at 1185; Luster, 71 A.3d at 1041-42.13 Furthermore, eyewitness
observations of arguments between the victim and defendant are admissible.
See Puksar, 740 A.2d at 224; Chandler, 721 A.2d at 1045. Significantly,
12
We note that the Moore decision seems to contradict the Thornton
decision in that Moore allows for the admission of state of mind hearsay
testimony where the defendant argues self-defense. Compare Moore, 937
A.2d at 1070 (stating that state of mind evidence is relevant when
defendant argues self-defense), with Thornton, 431 A.2d at 251 (stating
that where appellant argued self-defense, it was the appellant’s state of
mind, not the victim’s, which was material to establish the degree of guilt on
the charge of criminal homicide). However, Moore did not overrule the
Thornton ruling, and Green, while not citing to Moore, confirms the
continued viability of the Thornton decision.
13
The Green decision seems to contradict the Luster decision with regard
to the victims’ statements of being afraid of the respective appellants.
However, as Green does not cite to Luster or overturn that precedent, we
conclude that the Green decision in this respect is a case-specific holding
and not applicable in this case. We further note that in Luster, the victim’s
statements that appellant “was going to do something real bad to her,” and
that appellant was “trying to kill her” appear to be expressing the victim’s
belief. Luster, 71 A.3d at 1041; see also Kunkle, 79 A.3d at 1185
(wherein the decedent’s out-of-court statement that appellant would be to
blame if he died was deemed admissible). Rule 803(3) plainly states that a
declarant’s then-existing state of mind does not include a statement of belief
to prove a fact believed unless it relates to the validity or terms of a will.
Pa.R.E. 803(3).
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to be admissible under this exception, the statement must reflect the
declarant’s state of mind or emotional, sensory, or physical condition that
existed at the time of the statement. Pa.R.E. 803(3); see also
Schmalz, 67 A.3d at 804.
Out-of-court statements that look backward, or describe a declarant’s
past memory or belief about another’s conduct, are inadmissible under this
exception. See Pa.R.E. 803(3); see also Schmalz, 67 A.3d at 804 (stating
that “a statement relating to past events based on memory or belief is not
permissible to establish the truth of those events, absent relation to the
execution, revocation, identification, or terms of the declarant’s will.”). The
declarant must not have had an opportunity to reflect on his/her then-
existing state of mind as to a past fact. See Schmalz, 67 A.3d at
804 (stating that the “statement must be instinctive, rather than
deliberate[.]”) (citation and quotation marks omitted). Thus, the admission
of the out-of-court statement must be limited to a declaration showing the
declarant’s then-existing state of mind and not the factual occurrence
engendering that state of mind. See Pa.R.E. 803(3).14 Furthermore, it is
also clear that the out-of-court statements by a victim cannot be used as
14
For example, if a victim stated that she was afraid of the defendant
because he had struck her, the entire statement would be inadmissible
under Pa.R.E. 803(3) because the statements are perceptions or beliefs a
victim has of events. Thus, the statement of a declarant’s state of mind
would only be admissible as to her statement that she was afraid under
Pa.R.E. 803(3). The reasons why she was afraid cannot be characterized as
declarations of her state of mind.
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substantive evidence, as this would contravene the rule against hearsay.
Moore, 937 A.2d at 1072; Stallworth, 781 A.2d at 118. Finally, even if the
out-of-court statement is relevant, the courts must still balance the
relevance and the prejudicial effect of the admission of the statement. See
Commonwealth v. Barnes, 871 A.2d 812, 818 (Pa. Super. 2005) (stating
that in determining whether evidence should be admitted, the trial court
must weigh the relevance against the prejudicial impact of the admission of
the evidence, and that the court may conclude that relevant evidence is
inadmissible on account of its prejudicial impact).
Here, the Commonwealth asserts that because Yale will utilize a
defense of accidental death, and denies the existence of marital discord
between the parties, Joan’s out-of-court statements are admissible to
demonstrate Yale’s motive in killing Joan. See Brief for the Commonwealth
at 14, 15, 25; see also Trial Court Opinion, 2/6/14, at 1 (stating that “it is
almost certain that an accidental fall will be the crux of the defense[.]”).
However, “the general fact that the defense argues ‘accident’ does not open
the gates of hearsay through the state[-]of[-]mind exception. The
Commonwealth must still show why the decedent’s state of mind is
relevant.” Trial Court Opinion, 2/6/14, at 3. Indeed, the out-of-court
statement must be probative on the question of the victim’s “then-existing”
state of mind and must not include “a statement of memory or belief to
prove the fact remembered or believed.” Pa.R.E. 803(3); Moore, 937 A.2d
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at 1070. Accordingly, because Yale is likely to use a defense of accident, we
must review the out-of-court statements at issue, and determine whether
they are probative of Joan’s state of mind and admissible under Rule
803(3).15 See Moore, 937 A.2d at 1070.
First, the Commonwealth asserts that Yvette, Joan’s daughter-in-law,
will testify as to Joan’s statements that Yale called her names and threw
things around the house when he became upset; that she and Yale argued
over putting Yale’s name on Joan’s house; that Yale was mentally abusing
Joan by calling her names; that Yale was “acting up again;” that her
marriage was one of convenience and not of love; that Yale wanted her to
put his name on a CD; that Joan gave Ronald two safety deposit boxes with
financial information and told Ronald to go through the boxes “if anything
happened to her;” that Joan called to talk to her son and sounded
depressed; and that Yale called the day before Joan’s death about having
Joan’s son call him. See Interview (Yvette), 3/23/01, at 1-6 (unnumbered);
see also Brief for the Commonwealth, Exhibit C. Yvette would also testify
to her belief that Joan was considering a divorce. See Interview (Yvette),
15
We note that the Commonwealth has attached an exhibit to its brief that
details the various out-of-court statements it seeks to admit at trial. See
Brief for the Commonwealth, Exhibit C. We address only these specific
statements in this Memorandum. The complete statements in question are
found in reports generated by the Pennsylvania State Police of interviews of
the relevant witnesses, which the Commonwealth attached to its Brief in
Opposition to Yale’s Motion In Limine.
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3/23/01, at 3-4 (unnumbered); see also Brief for the Commonwealth,
Exhibit C.
These statements are inadmissible under the state of mind exception.
Indeed, many of the statements involve past events, and do not include
Joan’s then-existing state of mind. See Pa.R.E. 803(3). Further, Yvette’s
beliefs about Joan’s thoughts and Yale’s statements16 are not admissible
under Rule 803(3) to demonstrate Joan’s then-existing state of mind.
Finally, with regard to the safety deposit boxes full of financial information, it
is unclear from Yvette’s statements whether she personally observed the
delivery of the boxes or heard Joan’s statements. Thus, Yvette’s
statements, as presented, are not admissible.
Yvette would also testify that Joan called her on March 20, 2001,
stating that she was upset because Yale would not allow her to use the cars
or give her money. See Interview (Yvette), 3/23/01, at 2 (unnumbered);
see also Brief for the Commonwealth, Exhibit C. Yvette’s testimony that
Joan was upset evidenced Joan’s state of mind at that time and is therefore
admissible. See Schmalz, 67 A.3d at 805 (stating that testimony as to out-
of-court statements that declarant was upset was admissible under the state
of mind exception to the hearsay rule). However, the statements regarding
16
The trial court ruled that to the extent the witnesses heard Yale’s
statements, “those may be received as admissions.” Trial Court Opinion,
1/8/14, at 20. The trial court must weigh the relevance against the
prejudicial impact of the admission of the evidence. See Barnes, 871 A.2d
at 818.
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the reasons why Joan was upset are not admissible, as they relate to Joan’s
memory of past events. See id. (stating that courts cannot utilize the
reasons why the declarant was upset as they involved her memory or belief
as to past events); see also Pa.R.E. 803(3). Thus, with regard to Yvette’s
testimony concerning Joan’s state of mind, Yvette could only testify to Joan’s
statement that she was upset.
Next, Ronald would testify that Joan told him that Yale was mentally
abusive; that Joan went to East Stroudsburg Savings Association to change
the name on a CD; that he received calls from Yale and Joan on March 19,
2001; that Joan calculated how much it cost for Yale to live in her house and
that Joan stated that Yale became angry when informed of this calculation;
that Joan stated that Yale was mean and nasty; that Joan found out that she
could have money from her father’s social security; that Joan and Yale could
not agree on her will that would allow Yale to get 50% of the house; that
Joan asked Ronald whether Yale was going to leave after Yale had called
Ronald; that Ronald thought that Yale and Joan fought over every little thing
and the fighting was escalating; and in response to Ronald’s statement
regarding her safety, Joan stated that it was “in the back of her mind, but
she thought that she could get to the phone and call 911 if he did anything.”
See Interview (Ronald), 3/22/01, at 1-5 (unnumbered); see also Brief for
the Commonwealth, Exhibit C.
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The statements regarding Joan’s recitation of past events are
inadmissible under the state of mind exception, as they do not evidence
Joan’s then-existing state of mind. Further, Ronald’s opinion as to Joan and
Yale’s arguments are not admissible under Rule 803(3) to evidence Joan’s
then-existing state of mind.17 With regard to Joan’s response to Ronald’s
statement about her safety, the response does not demonstrate any plan,
motive, design, mental feeling, pain, or bodily health being experienced by
Joan. Moreover, Joan’s general statement relates to some unknown future
conduct by Yale and we cannot infer Joan’s then-existing state of mind, such
as fear. Thus, the trial court properly found that the above statements were
inadmissible under Rule 803(3).
Ronald would also testify about a message left by Joan on March 22,
2001, the day of her death. According to the Commonwealth, Ronald would
state that Joan declared her intent to stay at Ronald’s home. See Brief for
the Commonwealth at 20; accord Trial Court Opinion, 2/6/14, at 5 (wherein
the trial court states that based upon the Commonwealth’s description of the
statement, it would be admissible). However, our review of Ronald’s
17
We note that the Commonwealth also seeks to introduce statements made
by Yale to Ronald, including that that Yale called him to go to Joan’s house
because Yale and Joan were arguing, and that Yale stated that something
had to be done. Interview (Ronald), 3/22/01, at 2 (unnumbered); see also
Brief for the Commonwealth, Exhibit C. As noted above, the trial court ruled
that Yale’s statements, that were heard by the witnesses, are admissible.
Trial Court Opinion, 1/8/14, at 20; see also Barnes, 871 A.2d at 818.
Furthermore, any arguments observed by the witnesses were also
admissible. See Trial Court Opinion, 1/8/14, at 20; see also Puksar, 740
A.2d at 224; Chandler, 721 A.2d at 1045.
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interview with the police, detailing this particular statement, discloses that
Ronald stated that “his mother said in the message that she wanted to stop
by at some point in the day.” Interview (Ronald), 3/22/01, at 1
(unnumbered); see also Brief for the Commonwealth, Exhibit C. The
statement, as constructed by the Commonwealth, would be relevant and
admissible to demonstrate that Joan intended to leave her home and live
with Ronald. See Sneeringer, 668 A.2d at 1171–72. However, the
statement, as recited by Ronald in the police interview, would be
inadmissible as Joan’s decision to stop by Ronald’s house was not relevant or
probative of Joan’s state of mind or of Yale’s motive. Because the
Commonwealth fails to cite to the record to support its interpretation of
Joan’s message to Ronald, and in light of the plain language of Ronald’s
statements in the police interview, we conclude that the statement is
inadmissible. Additionally, the other messages left by Joan on March 22,
2001, are not relevant and do not state Joan’s then-existing state of mind
under Rule 803(3).
Finally, Ronald would testify that on March 21, 2001, Joan gave him
nine envelopes of financial information “in case something happened to her;”
that on March 20, 2001, Joan gave him two lockboxes containing paper and
money; and that Joan wanted to get the boxes out of the house “in case
something happened to her.” Interview (Ronald), 3/22/01, at 1
(unnumbered); see also Brief for the Commonwealth, Exhibit C. Ronald
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would also testify that on March 19, 2001, Joan called him and was crying
and upset because Yale cut her monthly allowance and could not get things
for her grandchildren. See Interview (Ronald), 3/22/01, at 2
(unnumbered); see also Brief for the Commonwealth, Exhibit C.
Ronald’s statements that Joan gave him the envelopes and lockboxes
of financial information are admissible, as he observed this interaction.
Further, Joan’s statement that she provided this information “in case
something happened to her” is also admissible, as it demonstrates her then-
existing intent as to the reason for providing the financial information to
Ronald. Moreover, Joan’s statement that she was upset is admissible;
however, the statements as to her reasons for being upset are inadmissible.
See Schmalz, 67 A.3d at 805. Thus, Ronald could testify regarding these
statements, and the trial court improperly found this testimony to be
inadmissible at trial.
Next, the Commonwealth sought to introduce testimony of Joan’s
other son, Randall Litts (“Randall”), who would testify that Joan and Yale
argued over ownership of the house for four years; that Yale called Randall a
Nazi and a vulture and that Joan told Randall not to get upset; that Joan’s
main concern was that Randall not be upset over the phone call; and that
Yale sounded calm when he called to inform Randall about Joan’s fall. See
Interview (Randall), 3/22/01, at 1-4 (unnumbered); see also Brief for the
Commonwealth, Exhibit C.
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These statements are inadmissible under the state of mind exception.
Indeed, these statements involve Randall’s observations about the length of
the fight over the home, Yale’s statements, and Joan’s statements regarding
Randall’s feelings. Thus, to the extent the Commonwealth seeks to admit
these statements as evidencing Joan’s state of mind, we agree with the trial
court’s ruling that the statements are inadmissible.18
The Commonwealth also sought to introduce the testimony of Lorraine
Litts (“Lorraine”), Randall’s wife and Joan’s daughter-in-law. Lorraine would
testify that Joan brought envelopes of financial information to her home in
case something happened; that Joan was nervous when bringing the
financial information to her home; that Joan told Lorraine that she assured
Yale that she was not filing for divorce yet; and that Lorraine told Joan not
to be afraid of calling 911, and Joan replied she would call 911 if needed.
See Interview (Lorraine), 3/22/01, at 1-4 (unnumbered); see also Brief for
the Commonwealth, Exhibit C.
As noted above, Joan’s action of bringing financial information and her
statement is admissible. However, Lorraine’s belief that Joan was nervous
does not implicate Joan’s state of mind. Moreover, Joan’s statements to
Lorraine regarding past events, i.e., whether she would file a divorce
complaint, are inadmissible under the state of mind exception. Further,
18
Again, as noted above, the trial court allowed the admission of Yale’s
statements to the witnesses and any arguments that the witnesses had
observed. Trial Court Opinion, 1/8/14, at 20; see also Barnes, 871 A.2d at
818.
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Joan’s statements in reply to calling 911 does not evidence any plan, motive,
design, mental feeling, pain, or bodily health being experienced by Joan.
Thus, Lorraine could only testify to Joan’s action of bringing financial
information to her home and Joan’s statement in connection with the action.
The Commonwealth also sought to introduce the testimony of Harold
Myers (“Myers”), Joan’s brother. Myers would testify that Joan was scared
to death of Yale; that Joan was scared of Yale doing physical harm to her;
and that Joan was concerned about keeping her home for her children. See
Interview (Myers), 6/6/12, at 1 (unnumbered); see also Brief for the
Commonwealth, Exhibit C.
While Myers’s statements indicated Joan was scared, there is no
indication in the record to show that she actually made such statements.
Thus, we conclude that these statements are inadmissible. Further, Joan’s
statement as to the ownership of the home relates to past events and does
not signal her state of mind. Thus, these statements were properly found to
be inadmissible.
The Commonwealth also seeks to introduce notes, written by Joan,
that were found in her purse. The notes set forth various statements,
purportedly made by Yale, including telling Joan to “move it now elephant,
fat pig;” telling Joan that he was going to commit her to the “crazy house;”
calling Joan’s grandchildren names; telling Joan that she would not be
allowed to give anything to her grandchildren; and screaming at Joan.
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None of these statements are admissible under the state of mind
exception, as they do not demonstrate Joan’s then-existing state of mind.
Indeed, the statements are merely recollections of past events and a
commentary of Joan and Yale’s marital strife. See Levanduski, 907 A.2d at
20. Thus, the trial court properly ruled the letter to be inadmissible.
Next, the Commonwealth seeks to admit the testimony of Joan’s
neighbor, Agnes Diehl (“Diehl”). Diehl would testify Joan would come to her
house and declare that Yale treated her poorly; that Yale called her names;
and that Yale wanted his name on the deed of the house. See Interview
(Diehl), 7/3/13, at 1-2 (unnumbered); see also Brief for the
Commonwealth, Exhibit C. Diehl stated that Joan appeared to be suffering
from significant mental stress. See Interview (Diehl), 7/3/13, at 1
(unnumbered); see also Brief for the Commonwealth, Exhibit C. Diehl
would also testify that she would hear Yale screaming at Joan and that
Ronald would subsequently come to Joan’s house. See Interview (Diehl),
7/3/13, at 1 (unnumbered); see also Brief for the Commonwealth, Exhibit
C.
With regard to Joan’s statements to Diehl detailing Yale’s prior
behavior, these statements are inadmissible under the state of mind
exception. Further, Diehl’s observations about Joan’s mental health are not
admissible to demonstrate Joan was actually feeling mental stress under the
exception. Indeed, there is no indication that Joan made any statement with
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regard to her mental stress. However, as noted above, the trial court
already found any arguments between Joan and Yale, which were heard by
the witnesses, to be admissible. See Trial Court Opinion, 1/8/14, at 20; see
also Barnes, 871 A.2d at 818. Thus, Diehl’s statements that she heard
screaming is admissible. See id.; see also Puksar, 740 A.2d at 224;
Chandler, 721 A.2d at 1045.
Finally, the Commonwealth seeks to admit the testimony of Robert
Vandercar (“Vandercar”), a former neighbor of Joan. According to the
Commonwealth, Vandercar would testify regarding Joan’s statements that
she was afraid that Yale would kill her “within a year of the murder.”
Commonwealth Brief in Opposition of Yale’s Motion In Limine, 2/26/14, at 15
n.7. However, aside from this mention in the Commonwealth’s Brief in
Opposition to Yale’s Motion In Limine, there is no indication that Vandercar
would testify to these facts or that Joan made these statements to
Vandercar. Thus, this statement is inadmissible.
Based upon the foregoing, we conclude that Joan’s act of bringing
financial documents and her statements in connection with this act, are
admissible at trial. Statements evidencing Joan’s then-existing state of
mind, i.e., she was upset, are admissible at trial under the state of mind
exception of the hearsay rule. Further, any arguments between Yale and
Joan, actually heard by the witnesses, are also admissible. See Trial Court
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Opinion, 1/8/14, at 20; see also Barnes, 871 A.2d at 818. The remaining
statements proposed by the Commonwealth are inadmissible.
In its second claim, the Commonwealth contends that the trial court
improperly reserved the right to disallow cumulative or inflammatory
photographs of victim and the crime scene, where the parties had stipulated
as to the admissibility of the photographs. Brief for the Commonwealth at
29-31. The Commonwealth argues that since neither party was challenging
the admissibility of the photographs, the trial court has no discretion in
deciding admissibility. Id. at 30-31.19
Here, the trial court acknowledges that the parties entered into a
stipulation over the admissibility of photographs of Joan’s body and the
crime scene. See Trial Court Opinion, 2/6/14, at 5; Trial Court Opinion,
1/8/14, at 21. However, the trial court further stated that despite the
stipulation, it could, in its discretion, exclude cumulative or inflammatory
photographs. See Trial Court Opinion, 2/6/14, at 5-6; Trial Court Opinion,
1/8/14, at 21. The trial court relied on our Supreme Court’s decision in
Commonwealth v. Murray, 83 A.3d 137, 156 (Pa. 2013), for the
proposition that when the Commonwealth proffers photographs of a
homicide victim for admission into evidence, the trial court must determine
whether the photographs are inflammatory and if so, whether the prejudicial
19
We note that Yale did not set forth an argument related to this claim in his
brief on appeal.
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impact outweighs the probative value of the photographs. Trial Court
Opinion, 2/6/14, at 6.
In Murray, the appellant argued that the trial court utilized an
improper standard of review in admitting photographs of the homicide
victim. Murray, 83 A.3d at 155. The Supreme Court set forth a two-part
analysis to be applied by a trial court where the Commonwealth proffers
photographs of a homicide victim for admission into evidence:
First a [trial] court must determine whether the photograph is
inflammatory. If not, it may be admitted if it has relevance and
can assist the jury’s understanding of the facts. If the
photograph is inflammatory, the trial court must decide whether
or not the photographs are of such essential evidentiary value
that their need clearly outweighs the likelihood of inflaming the
minds and passions of the jurors.
Id. at 156 (citation omitted). The Supreme Court concluded that the trial
court did not err in its process of admitting the photographs. Id.
Unlike Murray, in this case, Yale stipulated to the admissibility of the
photographs. It is well-settled that “[a] valid stipulation must be enforced
according to its terms.” Commonwealth v. Rizzuto, 777 A.2d 1069,
1088 (Pa. 2001), abrogated on other grounds by Freeman, 827 A.2d at
400. “Parties may by stipulation resolve questions of fact or limit the issues,
and, if the stipulations do not affect the jurisdiction of the court or the due
order of the business and convenience of the court they become the law of
the case.” Rizzuto, 777 A.2d at 1088; see also Commonwealth v.
Mathis, 463 A.2d 1167, 1171 (Pa. Super. 1983).
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Thus, because Yale and the Commonwealth stipulated to the admission
of the photographs of the victim and the scene of the death, and the
stipulation is not being challenged, the trial court must enforce the
stipulation as the law of the case. Accordingly, the trial court does not have
any discretion in omitting cumulative or inflammatory photographs.
Order affirmed in part and reversed in part. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2014
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