Commonwealth v. Murphy, K., Aplt.

[J-25-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 699 CAP
:
Appellee : Appeal from the Judgment of Sentence
: entered on 5/9/13 in the Court of
: Common Pleas of Westmoreland
v. : County, Criminal Division at No. CP-65-
: CR-0001991-2010
KEVIN MURPHY, :
:
Appellant : ARGUED: October 6, 2015
: RESUBMITTED: January 20, 2016

OPINION

MR. CHIEF JUSTICE SAYLOR DECIDED: March 29, 2016

This is a capital direct appeal.

On April 23, 2009, in Loyalhanna Township, Westmoreland County, Appellant

shot and killed his mother, Doris Murphy, his sister, Kris Murphy, and his aunt, Edith

Tietge. He was charged with multiple counts of murder, and the Commonwealth

tendered notice of its intention to pursue the death penalty. In a trial before a jury in

2013, Appellant was convicted of the first-degree murder of each of the victims; the

jurors returned a death verdict in the ensuing penalty proceedings.1 Appellant pursued

post-sentence relief in the trial court, which was denied, and this direct appeal followed.

1
It appears that the jury considered the imposition of the death penalty relative to the
victims on a unitary basis. In imposing sentence, the trial court attached the death
verdict to the killing of Doris Murphy and imposed life sentences based on the
(continued>)
 I. Evidentiary Matters
Three of the five challenges to the judgment of sentence presently raised by

Appellant center on the adequacy of the Commonwealth’s evidence of his guilt. Initially,

there is no question that most of the elements of first-degree murder are established

relative to the obviously intentional and malicious killings of Appellant’s family members.

See generally Commonwealth v. Maisonet, 612 Pa. 539, 546, 31 A.3d 689, 693 (2011)

(explaining that, to obtain a first-degree murder conviction, the Commonwealth must

prove that: a human being was unlawfully killed; the defendant was the killer; and the

defendant acted with malice and a specific intent to kill (citing, inter alia, 18 Pa.C.S.

§§2501, 2502(a))).2 Appellant claims, however, that the Commonwealth failed to

demonstrate, adequately, his identity as the killer.

At trial, the Commonwealth proceeded on the theory that Appellant’s motive for

murdering his family members was to eliminate difficulties deriving from their

disapproval of Appellant’s romantic relationship with a married woman, Susan McGuire,

whom Appellant wished to bring to live at his residence. See, e.g., N.T., Apr. 24, 2013,

at 473-74, 501-03; N.T., Apr. 26, 2013, at 835-838. By way of some elemental

background, it is undisputed that Appellant, his mother (Doris), and his sister (Kris) lived

together, and that Kris was an employee at Appellant’s business, Ferguson Glass,

where Doris and Appellant’s aunt (Edith) volunteered. Of further significance to the

(>continued)
convictions for the other two murders. No issues are presently raised concerning this
approach.

2
At trial, the Commonwealth presented undisputed testimony from a pathologist
confirming both the cause and manner of the deaths, in which each of the three victims
was shot in the head. See N.T., Apr. 29, 2013, at 979-1015.

[J-25-2016] - 2
case, the business premises was adjacent to a farm owned by Appellant’s uncle, Roy

Martin, where Appellant assisted with the farm work.

The prosecution presented testimony from John Krivascy, a friend of Appellant’s,

who explained that, a few months prior to the killings, Appellant called seeking advice

about acquiring a gun, explaining that he wished to shoot groundhogs. See N.T., Apr.

25, 2013, at 534.

Commonwealth witness Charles Modrey, who was Appellant’s neighbor, testified

that shortly before the day of the murders, Appellant had related that he had a “girlfriend

that was coming” to his residence, but that Doris and Kris disapproved. Id. at 548.

Furthermore, according to Mr. Modrey’s account, Appellant proceeded to inquire

whether the witness knew anyone who could help “get rid of his problem.” Id. at 550.

Evidence was adduced to the effect that, in the days immediately before the

killing, a .22 caliber pistol owned by Appellant was brought to the Ferguson Glass

business premises, although no firearm had otherwise ever been kept there. See N.T.,

Apr. 23, 2013, at 281-85.3 Witnesses testified that, subsequently, Appellant gave varied

accounts to explain why the weapon was present. See, e.g., N.T., Apr. 24, 2013, at 470

(reflecting testimony from an investigating officer that Appellant had indicated that the

handgun was present for protection); id. at 472 (reflecting another officer’s testimony

that Appellant had said that the pistol was taken to the premises so that he could shoot

a raccoon that had been trapped on the farm premises).4

3
Appellant’s sister, Kris, physically carried the firearm into the building. See id.

4
In terms of the account of the raccoon, the evidence showed that such an animal
recently had been caught in a trap on the farm premises. On cross-examination in the
defense case, however, Appellant’s uncle explained that he had killed it with a rifle that
he owned and maintained on the farm premises. See N.T., Apr. 30, 2013, at 1283-84.

[J-25-2016] - 3
 The Commonwealth showed that, during the morning of April 23, 2009, Appellant

told an employee that he was “shooting at birds and got a gun burn on his hand.” N.T.,

Apr. 24, 2013, at 325-326, 332-333.

The prosecution further established that, on that day, Susan McGuire was served

with divorce papers and that she and Appellant communicated. See id. at 474; N.T.,

Apr. 29, 2013, at 1053-1054; accord N.T., May 2, 2013, at 1658 (reflecting Appellant’s

testimony during the defense case that Susan McGuire had called in the afternoon on

April 23, 2009, and said that she had been served with divorce papers).

The Commonwealth also presented evidence that, that afternoon, Appellant took

measures to keep other individuals away from the Ferguson Glass business premises.

For example, a hunter who normally parked at the entranceway to the Martin farm

(which, again, was adjacent to the glass business) related to the jury that Appellant had

authorized him to drive across a portion of the Martin farm over which the hunter

normally walked. See N.T., Apr. 24, 2013, at 373-374. Around four o’clock in the

afternoon, Appellant called a driver who was on his way to deliver glass to inquire as to

his anticipated arrival time. See id. at 359.5

Upon returning from an animal auction in the early evening, Mr. Martin

discovered the victims’ bodies in the Ferguson Glass shop and summoned Appellant

from the farm. See id. at 407. When ambulance personnel arrived, Appellant, in his

words, was “worked up,” and he was taken to the hospital. Id. at 408.6

5
Mr. Martin also testified, during cross-examination in the defense case, that Appellant
had told him to stay at an animal auction that afternoon until a cow that Mr. Martin had
brought was sold. See N.T., Apr. 30, 2013, at 1237. He also acknowledged that he
may have told police previously that Appellant had said to stay until the auction
concluded. See id. at 1293-94.

6
The Commonwealth presented evidence that Appellant was feigning a panic attack to
gain time to collect his thoughts. See N.T., Apr. 26, 2013, at 856.

[J-25-2016] - 4
 Law enforcement officers testified that, in their interviews with Appellant at the

hospital, he repeatedly indicated that an employee was present when he purportedly

had shot at a bird. See N.T., Apr. 24, 2013, at 412, 427, 460. When confronted with

the employee’s denial of this assertion, Appellant merely said “well, I thought he was.”

Id. at 427. An investigating officer testified that Appellant told him that the pistol had

been on the premises for several weeks, see id. at 410, when, in fact, it had been

brought to the premises only a few days before. The officer related that Appellant said

that, after shooting the handgun at a bird, he placed the firearm in a Tupperware

container on a shelf in a storage room and that no one else knew that the weapon had

been left in such location. See id. at 412, 518.

The lead investigator examined Appellant’s finger but did not see any burn. See

id. at 459-60. Appellant gave inconsistent accounts about where he put empty shell

casings after having shot at a bird. Compare id. at 505 (reflecting testimony of one

investigator that Appellant told her that he threw the shells in a dumpster), with N.T.,

Apr. 25, 2013, at 564-567 (reflecting another officer’s attestation that Appellant said that

he threw the shell casings over a steep hillside). Further, evidence was adduced to the

effect that police were unable to locate shells in either place. See N.T., Apr. 29, 2013,

at 1031-1032.

In the ongoing police investigation, no sign of forced entry into the Ferguson

Glass premises was found; moreover, Doris Murphy’s purse, containing several

hundred dollars, remained on a countertop. See N.T., Apr. 23, 2013, at 138, 167, 233.

Investigators discovered the pistol used in the killings in a catch-basin to a belt sander.

See id. at 260.

A forensic DNA supervisor testified that Appellant’s DNA was present on the

handgun. N.T., Apr. 25, 2013, at 681-682. Another analyst confirmed the presence of

[J-25-2016] - 5
gunshot residue on Appellant’s hand deriving from a test taken soon after the killings.

See N.T., Apr. 26, 2013, at 768.

The Commonwealth also presented testimony of Appellant’s confession, after his

arrest, to a fellow prisoner at Westmoreland County Prison, John Meighan. According

to Meighan, Appellant admitted that he planned and executed the three murders per the

request of Susan McGuire. See id. at 850-855. Meighan testified that Appellant had

also confided to him that Susan McGuire had advised Appellant to fire the handgun

earlier in the day while being observed by an employee. See id. at 853.7

Appellant testified in his own defense, denying any participation in the killings.

On cross-examination, however, he admitted to various omissions and lies in his

statements to police investigators. See, e.g., N.T., May 1, 2013, at 1597-1603, 1610,

1618-1619. He also presented testimony from an emergency medical technician to the

effect that his blood pressure and heart rate were elevated when he was taken to the

hospital, and he was flushed and sweating profusely. See id. at 1378. An inmate from

Westmoreland County prison gave testimony suggesting that Meighan had learned

details concerning Appellant’s circumstances from news media. See id. at 1403-1405.

A firearms examiner attested that it was possible to be burned by the type of handgun

involved in the killings. See id. at 1477. Roy Martin also offered his account of the

events on April 23, 2009, with particular emphasis on an explanation for why he

remained at the auction until it concluded, while denying on cross-examination that

Appellant told him to do so. See N.T., Apr. 30, 2013, at 1168-1173, 1293-1294. Mr.

Martin further indicated that his family had encountered difficulties in the past with Mr.

7
Presumably, the intent was to account for any physical evidence of Appellant’s contact
with the weapon that day. Accord N.T., Apr. 26, 2015, at 854 (reflecting Meighan’s
testimony that the purpose was to use the employee “as an alibi that he was handling
the gun that morning”).

[J-25-2016] - 6
Modrey. See N.T., Apr. 30, 2013, at 1144. Finally, the defense presented several

character witnesses.

In the first of his three claims centered on the adequacy of the Commonwealth’s

evidence, Appellant contends that the verdicts were against the weight of the evidence.

He indicates that there was very little physical evidence presented by the prosecution,

some of which, from his perspective, was equally consistent with his innocence. See,

e.g., Brief for Appellant at 86 (“While DNA evidence and gun residue analysis indicated

[Appellant] fired, handled, or was in close proximity to the revolver when discharged, it

is hardly surprising for a gun owner to handle his gun.”). In terms of the physical

evidence, Appellant also highlights the presence of DNA from an unknown individual on

the murder weapon.

Appellant suggests that the Commonwealth’s case rested primarily on the

testimony of Charles Modrey and John Meighan. As to Mr. Modrey, Appellant observes

that the witness had not related to police his account of Appellant’s desire to eliminate a

problem until a year after the murders and that the witness was known to have had

difficulties with Appellant and his family. See N.T., Apr. 25, 2013, at 553. Appellant

also describes the content of the conversation related by Mr. Modrey as “innocuous”

and postulates that the witness may have been confused. Brief for Appellant at 88.

Regarding Meighan, Appellant attacks his testimony as “self-serving and

contrived.” Id. at 89. After enumerating Meighan’s crimen falsi convictions, Appellant

pronounces that such witness’s testimony was and is entitled to “no weight.” Id. It is

Appellant’s position that this Court should contrast such evidence “with the heavy

evidence of [Appellant] getting along with and being protective of his family; being highly

emotional at the scene and being given Valium to calm down; and the 911 audio of

[J-25-2016] - 7
[Appellant] acting hysterically in the background.” Id. In light of this summary, Appellant

asserts that “[t]he great weight of the evidence supports [Appellant’s] non-guilt.” Id.

The Commonwealth responds with emphasis on the prevailing review standard,

which relegates weight-of-the evidence considerations to the finder of fact, in the first

instance, and then to the discretion of the trial court which had the opportunity to hear

and see the evidence presented. See, e.g., Commonwealth v. Widmer, 560 Pa. 308,

319-20, 744 A.2d 745, 753 (2000). The Commonwealth explains that, to grant a new

trial based on weight-of-the-evidence concerns, it must appear that “the evidence was

so one-sided or so weighted in favor of acquittal that a guilty verdict shocks one’s sense

of justice.” In re J.B., ___ Pa. ___, ___, 106 A.3d 76, 95 (2014) (quoting

Commonwealth v. Lyons, 622 Pa. 91, 116, 79 A.3d 1053, 1067 (2013)).

In addressing the trial proofs, the Commonwealth highlights the motive evidence

concerning Appellant’s desire to live with Susan McGuire at his residence and the

victims’ disapproval of the relationship; the conveyance of Appellant’s pistol to the

Ferguson Glass premises in close proximity to the murders for reasons Appellant was

unable to explain consistently; the fact that this weapon then was used to perpetrate the

killings; Appellant’s exclusive knowledge of the location of the firearm prior to the

murders; Mr. Modrey’s testimony that Appellant wished to solicit assistance in

eliminating his problem with his relatives; and Meighan’s depiction of Appellant’s

jailhouse confessions. In the totality, and considered in light of the defense case, the

Commonwealth maintains that there simply is nothing relative to the guilty verdicts that

shocks the conscience.

Upon our review, we agree with the Commonwealth’s position. As previously

explained, disturbance of a jury verdict on weight-of-the-evidence grounds would be

appropriate only in an exceptional case where the evidence weighs very heavily against

[J-25-2016] - 8
the conviction. Here, however, per the trial court’s review of the record, and ours, we

do not find that the jury lost its way or embarked upon a manifest miscarriage of justice

by convicting Appellant on the three counts of first-degree murder. In terms of

Meighan’s testimony, the jurors were made aware of the witness’s entanglements in the

criminal justice system, including his crimen falsi convictions, see N.T., Apr. 26, 2013, at

879-80, he was subject to extensive cross-examination, see id. at 884-943, and

Appellant’s counsel took pains to cast suspicion upon the testimony in his closing

remarks, see, e.g., N.T., May 3, 2013, at 1720-1721. Furthermore, the jurors were

entitled to treat Appellant’s admitted omissions and lies in his statements to police as

evidence of his consciousness of guilt. See Commonwealth v. Williams, 532 Pa. 265,

275, 615 A.2d 716, 721 (1992). Moreover, the Commonwealth presented a collage of

other evidence supporting a finding of Appellant’s guilt, and, thus, the matter was

properly for the jury. Accordingly, the trial court did not abuse its discretion in denying

relief on Appellant’s weight-of-the-evidence claim.

The remaining challenges to the adequacy of the Commonwealth evidence fall

within the category of evidentiary sufficiency. Again, the establishment of most of the

elements of first-degree murder is manifest and undisputed, and the sole controversy is

over proof of identity. As such, our analysis of evidentiary sufficiency overlaps

materially with the weight-of-the evidence review set forth above. Viewed in its totality,

we find, the Commonwealth presented sufficient evidence to enable a reasonable jury

to find all elements of the crimes of first-degree murder beyond a reasonable doubt.

See Commonwealth v. Reed, 605 Pa. 431, 436, 990 A.2d 1158, 1161 (2010) (setting

forth the prevailing review standard governing sufficiency claims).

[J-25-2016] - 9
 Appellant advances one additional sufficiency argument, grounded upon the

aspirational goal in the capital arena to a heightened standard of reliability in fact-finding

procedures, given the severity of the penalty of death. See Ford v. Wainwright, 477

U.S. 399, 411, 106 S. Ct. 2595, 2602 (1986) (“In capital proceedings >, this Court has

demanded that fact-finding procedures aspire to a heightened standard of

reliability.”). In particular, Appellant contends that, because a majority of the evidence

presented by the Commonwealth at trial was circumstantial, the need for “heightened

reliability” in capital cases precludes the imposition of a death sentence here and

instead necessitates that we vacate and remand for entry of a sentence of life in prison

without parole.

Appellant has not developed his argument adequately for this Court to

contemplate granting the requested relief. Appellant does not deny that the jury applied

the applicable standard of proof, namely proof beyond a reasonable doubt, in both the

guilt and penalty phases of his trial. He likewise cites to no authority preventing or

limiting the use of circumstantial evidence in any phase of capital proceedings, or

otherwise requiring more or greater proof than that required to satisfy the “beyond a

reasonable doubt” standard when circumstantial evidence is presented in any

phase. As such, he provides us with no basis to vacate the judgment of sentence.

II. Suppression

Appellant claims that the suppression court erred in denying his pretrial motion to

exclude from evidence his statements to police made while at the hospital and, later, at

a police station, given that he was under the influence of a powerful medication and

labored under emotional distress. He asserts that he suffered a panic attack after

encountering the bodies of his family members, as evidenced by the fact that an

emergency medical technician found him to be flushed and perspiring profusely and

[J-25-2016] - 10
recorded his elevated heartbeat and blood pressure readings. Additionally, Appellant

relies on testimony from a psychiatrist, Christine Martone, M.D., that he presented at a

suppression hearing. In this regard, Dr. Martone testified that the effect of Appellant’s

panic attack, coupled with an administration of five milligrams of Valium while being

transported to the hospital, deprived Appellant of the ability, subsequently, to knowingly,

voluntarily, and intelligently make statements or give consent. See N.T., Apr. 30, 2013,

at 13.

Appellant also highlights that law enforcement officers failed to consult with

medical personnel before interviewing him. Further, he points to anecdotal

observations during the interviews that he tended to look down or away, to speak only

when prompted, and to appear emotionless as supportive of the psychiatrist’s opinion.

As an overview, Appellant relates that he:

was in the embarrassing position of wearing a hospital gown,
not having access to his house, and having no transportation
to get home, he was subjected to multiple interviews by
several troopers over a 10-hour period, was confronted with
another’s statement which contradicted his statement in one
respect, and was in the presence of at least one officer
shortly after 9:00 p.m. on April 23, 2009 until he arrived
home after 7:00 a.m. on April 24, 2009.
Brief for Appellant at 85. In the totality, he complains of “coercive conduct and

deliberate ignorance of [Appellant’s] medical condition.” Id.

Appellant’s reliance on Dr. Martone’s opinion at this stage of the proceedings,

however, is in derogation of the applicable standard on appellate review pertaining to

denial of a suppression motion, pursuant to which we consider only so much of the

defense evidence as remains uncontradicted. See, e.g., Commonwealth v. Johnson,

615 Pa. 354, 374, 42 A.3d 1017, 1028 (2012).

[J-25-2016] - 11
 At the suppression hearing, each of several interviewing officers testified to

Appellant’s calmness, cooperativeness, alertness, coherency, and ability to render

extensive oral and written accounts throughout the process. See, e.g., N.T., Aug. 15,

2011, at 46-50. Each of the investigators testified to his or her experience with

individuals under the influence of controlled substances and to his or her observation

that Appellant did not appear to be so affected. See, e.g., id. at 82. They also

confirmed the regularity of the interview processes, including the fact that Appellant was

treated in a professional fashion and not subjected to coercive measures (other than

encountering mere expressions of disbelief relative to a few of his responses). Such

testimony was credited by the suppression court, see Opinion and Order dated Oct. 7,

2012, in Commonwealth v. Murphy, No. 1991 C 2010, slip op. at 16-20 (C.P.

Westmoreland), and presents an adequate basis for denial of a suppression motion

premised on a claim that statements and consents were not knowing, voluntary, and

intelligent. Accord Commonwealth v. O’Bryant, 479 Pa. 534, 540, 388 A.2d 1059, 1062

(1978). Furthermore, the suppression court was not obliged to believe the forensic

psychiatric opinion presented by Appellant.

Based on the above, we conclude that the suppression court did not abuse its

discretion or otherwise err in denying Appellant’s motion to exclude evidence of his

statements.

III. Penalty

In Appellant’s final argument, he asserts that, because the aggravating

circumstances found by the jury in the penalty proceedings overlapped,8 the jury

impermissibly “double-count[ed]” the aggravation. Brief for Appellant at 72.

8
The aggravators in question are set forth in Sections 9711(d)(10) and (11) of the
Sentencing Code. Compare 42 Pa.C.S. §§9711(d)(10) (designating as an aggravating
(continued>)
[J-25-2016] - 12
 As a preliminary observation, we note, however, that “counting” of aggravators is

relevant only for purposes of the initial eligibility process, in which eligibility for the death

penalty is established upon the finding of any single aggravator. See 42 Pa.C.S.

§9711(c)(iv). The remaining assessment, if mitigation also is found, entails a weighing -

- not a counting -- process. See, e.g., Commonwealth v. Reyes, 600 Pa. 45, 53-54, 963

A.2d 436, 441-42 (2009). Notably, the jury at Appellant’s trial was so instructed,

consistent with the governing law. See N.T., May 7, 2013, at 238.

In any event, as the Commonwealth observes, Appellant did not lodge a relevant

objection at trial and, therefore, any residual concerns about this issue must await post-

conviction review. See Pa.R.A.P. 302(a).

IV. Statutory Review

At this stage, we are required to affirm Appellant’s capital judgment of sentence

unless we find it to have been the product of passion, prejudice, or any other arbitrary

factor, or that the Commonwealth’s evidence does not support at least one aggravating

factor. See 42 Pa.C.S. §9711(h)(3). After reviewing the record, we are persuaded that

the sentence imposed upon Appellant was not the product of passion, prejudice, or any

other arbitrary factor, but rather, resulted from the evidence that Appellant deliberately

and maliciously killed the victims, as well as the jurors’ appropriate service of their

function in capital litigation per the governing statutory scheme. Finally, the evidence

plainly established both aggravating circumstances found by the jury, given the multiple

killings involved. See supra note 8.

(>continued)
circumstance conviction of an offense for which a sentence of life imprisonment or
death was imposable), with id. §9711(d)(11) (specifying that conviction of another
murder before or at the time of the offense in issue constitutes an aggravating
circumstance).

[J-25-2016] - 13
 The judgment of sentence is affirmed, and the Prothonotary is directed to

transmit the record to the Governor in accordance with Section 9711(i) of the

Sentencing Code, 42 Pa.C.S. §9711(i).

Justices Baer, Todd, Donohue and Dougherty join the opinion.

Justice Wecht did not participate in the consideration or decision of this case.

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