[J-58-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 709 CAP
:
Appellee : Appeal from the Judgment of Sentence
: imposed on October 9, 2014 in the
: Court of Common Pleas, York County,
v. : Criminal Division at No. CP-67-CR-
: 0006857.
:
TIMOTHY MATTHEW JACOBY, : SUBMITTED: May 10, 2016
:
Appellant :
OPINION
JUSTICE WECHT1 DECIDED: September 28, 2017
On October 9, 2014, Timothy Matthew Jacoby was sentenced to death after a
jury convicted him of first-degree murder, burglary, tampering with physical evidence,
and robbery.2 In this automatic direct appeal, we affirm the convictions and the death
sentence.
I. Background
On March 31, 2010, at 2:52 p.m., the York County 911 call center received a call
that originated from Monica Schmeyer’s residence on Trone Road in York,
Pennsylvania. When the police arrived, they found Monica Schmeyer dead on her living
room floor. Blood droplets and stains surrounded her body. The telephone was off the
1
This case was reassigned to this author.
2
18 Pa.C.S. §§ 2502(a), 3502(a), 4910(1), and 3701(a)(1)(i), respectively.
hook; there was blood on the 9 and the 1. There was also a .32 caliber Speer branded
shell casing on the floor near Monica Schmeyer’s body.
Jacoby eventually became a suspect in the murder. The following is a summary
of the evidence that the Commonwealth presented to prove that Jacoby killed Monica
Schmeyer.
In 2010, Jacoby was a member of an informal group of individuals that gathered
at a Hooters restaurant located on Route 30 in York County, Pennsylvania. The group
called themselves the “Orange Shorts Society” (“OSS”), a moniker derived from the
uniforms worn by Hooters’ waitresses. The members of the OSS included Jacoby,
Sarah Powell (Jacoby’s fiancée at the time), Dr. Jon Schmeyer, and Pete Lobianco.
At some of these informal meetings, Dr. Schmeyer talked about his divorce from,
and the current state of affairs with, his ex-wife, Monica Schmeyer. Dr. Schmeyer told
the group that he paid Monica $1,700 in alimony each month, in cash. Monica was
known to have a habit of keeping her cash in white envelopes secreted in various
places around her home. Dr. Schmeyer also mentioned that their daughter, Elsa
Schmeyer, would be travelling to Japan in March of 2010.
There was an OSS meeting scheduled for March 31, 2010. On that date, at
approximately 2:00 p.m., Dr. Schmeyer met with Sarah Powell to discuss certain
financial matters related to foreign currency. During the meeting, Dr. Schmeyer sent a
text message to Jacoby, but received no return message. At 3:00 p.m., Dr. Schmeyer
and Powell proceeded to the Hooters for the scheduled OSS meeting. Jacoby never
showed for this meeting, even though members of the club—including his fiancée—
expected him to attend. Powell tried unsuccessfully to call Jacoby. Powell eventually
left the restaurant to return to their shared home. Jacoby was not there either. Jacoby
[J-58-2016] - 2
finally returned home at approximately 6:00 p.m. He told Powell that he had been at
work.
Around the same time that the OSS members were gathering, in a different part
of town, William Kagarise exited his house on Snyder Mill Road, and walked toward his
barn to feed his animals. As Kagarise walked to the barn, he looked up and saw a
white male walking on Snyder Mill Road with his head down. The male was walking
toward Trone Road, which is where Monica Schmeyer lived. Approximately twenty to
thirty minutes later, Kagarise saw the same white male walking on Snyder Mill Road,
but this time away from Trone Road. The man was carrying a white envelope in one
hand, which Kagarise did not observe when he first saw the man.
Kagarise described the man as approximately five feet, ten inches tall, with short
hair. Kagarise noted that the man was walking fast, and with a purpose, an unusual
behavior for someone at that time of the day in that part of town. Kagarise had never
seen the man before that day.
Anthony Crawford also lived on Snyder Mill Road. On the date in question,
Crawford saw a silver van parked along Snyder Mill Road at approximately 4:30 or 5:00
p.m. He also saw a white male walking toward the van. Police later investigated the
area and found two sets of tire tracks in the grassy area where Crawford saw the van.
Using surveillance video from a local bank located minutes from Trone Road, the police
were able to determine that the same van had passed the bank headed in the general
direction of Monica Schmeyer’s residence at about 2:38 p.m., and passed in the
opposite direction at approximately 2:59 pm. The police observed the same van head
again towards Trone Road at 3:56 p.m., and then return from that direction at 4:57 p.m.
The van belonged to a company called Armstrong World Industries. In 2010,
both Stanley Knight and Jacoby worked for the company. Knight identified the van from
[J-58-2016] - 3
the surveillance videos. He explained that the van had been customized so that work-
related materials could fit into it. Knight was able to observe some of the
customizations to the van in the video, and positively identify the van. Knight also
indicated that both he and Jacoby had used the van in the past, and that Jacoby had
access to the van on the date in question.
When an employee at Armstrong World Industries used the van, he or she was
required to sign out the van on a calendar that was posted in the lot where the van was
parked. However, the March 2010 page was missing, which Knight found to be highly
unusual. Nonetheless, Jacoby later submitted an expense report on March 31, 2010,
which indicated that he used the van at some time between March 26 and March 31.
Knight also noted that Armstrong World Industries did not do business in the area
surrounding Monica Schmeyer’s residence.
Dr. Samuel Land autopsied Monica Schmeyer, and concluded that she died from
a single gunshot wound above her left ear. Dr. Land found a bullet and a fragment
inside of Monica Schmeyer’s skull. The doctor also observed bruising and lacerations
to her brow, face, and chin. Dr. Land determined that these injuries were not consistent
with a single post-death fall to the floor, but instead resulted from repeated strikes to the
head by her assailant, possibly with a firearm.
When the police processed the crime scene, officers found blood on the bottom
of Monica Schmeyer’s sock and droplets of blood on her pants and bedding. The police
believed that this blood evidence suggested that there was a struggle before she was
killed. Thus, Dr. Land took scrapings from underneath Monica Schmeyer’s fingernails
and submitted them to the police for DNA testing.
[J-58-2016] - 4
The scrapings were submitted to NMS Labs for Y-STR DNA.3 A sample from
Monica Schmeyer’s left hand produced a full Y-STR profile from a single contributor.
Further testing revealed that Jacoby and all of his male relatives could not be excluded
as the source of the sample. Notably, by all accounts, Monica Schmeyer had never met
Jacoby before her death. Thus, the presence of a Y-STR profile that could not exclude
Jacoby under her fingernails provided police with compelling evidence that Jacoby was
her murderer.
Corporal David Krumbine, an expert in firearm and tool mark examinations,
inspected the .32 caliber Speer branded cartridge that was found near Monica
Schmeyer’s body. Cpl. Krumbine determined that the cartridge could have been fired
from a Kel-Tec manufactured firearm. The expert also concluded that the bullet and
fragment retrieved from Monica Schmeyer’s skull were consistent with the Speer
cartridge.
Cpl. Krumbine’s conclusion that the cartridge could have been fired from a Kel-
Tec firearm was important to the police’s effort to identify the killer, because Jacoby was
the registered owner of a Kel-Tec P32 semiautomatic handgun. However, this
particular weapon was never found, and no one could link the cartridge to the weapon
registered to Jacoby.
The police were still investigating the murder approximately fifteen months later
when they requested and obtained a search warrant for Jacoby’s residence. On July 6,
2011, the police executed the warrant and found a second-generation Kel-Tec barrel.
The top of that barrel had been ground down to resemble the shape of a first-generation
3
As set forth in more detail infra, Y-STR DNA analysis is a form of DNA testing
that focuses upon the Y-chromosome and can be used to exclude a male suspect and
his male relatives from being a DNA match to a particular sample.
[J-58-2016] - 5
barrel, which is necessary for the second-generation barrel to fit onto a first-generation
Kel-Tec firearm. Internet purchase records demonstrated that Jacoby had purchased a
second-generation barrel, but this purchase occurred after Monica Schmeyer had been
murdered. Nonetheless, as noted earlier, Jacoby was the registered owner of a first-
generation Kel-Tec firearm, and the barrel that he purchased was not compatible with
the weapon he owned without first being ground down to the correct size.
Following the search of Jacoby’s residence, the police requested and received a
second search warrant for Jacoby’s parents’ farm and home.4 In part, the police sought
the warrant because Jacoby’s fiancée, Sara Powell, told police officers that Jacoby had
moved his .32 caliber Kel-Tec weapon, which he usually kept under the pillow on his
bed, to his parents’ house. The warrant was executed later the next day.
At Jacoby’s parents’ house, the police found an empty box for a Kel-Tec P32
first-generation semiautomatic handgun, as well as documentation supporting the
purchase and registration. Jacoby’s signature was affixed to the documentation. The
police also found live .32 caliber Speer ammunition, and a first-generation Kel-Tec
barrel. The police also found a “Desert Eagle” .50 caliber handgun.5
The police also searched an area of Jacoby’s parents’ farm that was used as a
shooting range. The police examined this area because Jacoby’s brother had informed
officers that he had seen Jacoby using the range to fire a .32 caliber weapon. There,
the police found four .32 caliber Speer spent cartridge casings.
4
Jacoby challenges the affidavits of probable cause offered in support of both of
these warrants in this direct appeal. We discuss the particulars of those affidavits in our
analyses of Jacoby’s challenges below.
5
This weapon formed the basis of a persons not to possess firearm charge
against Jacoby. However, the Commonwealth later withdrew this charge.
[J-58-2016] - 6
Cpl. Krumbine examined the four casings, and compared them to the casing
found next to Monica Schmeyer’s body. He concluded that the casings all had been
fired from the same, but unknown, firearm. He also ascertained that all of these
cartridges contained the same Speer headstamp as the unspent ammunition found in
Jacoby’s parents’ house.
Cpl. Krumbine then fired some test shots using the first-generation Kel-Tec barrel
found at Jacoby’s parents’ residence. He noted that the bore of the barrel contained
extensive scratch marks that were intentionally made, and not the result of normal
cleaning. When fired, the weapon left marks on the bullets that were consistent with
marks left on the bullet removed from Monica Schmeyer’s skull, though Cpl. Krumbine
could not conclude definitively that they were fired from the same gun because the
damage to the bore rendered such an exacting analysis impossible.
On October 9, 2012, the Commonwealth filed an information formally charging
Jacoby with the murder. On June 24, 2013, Jacoby filed a suppression motion seeking
to suppress the evidence obtained as a result of the search warrants executed on his
home and on his parents’ home and property. Jacoby further challenged a separate
search warrant used by the police to secure a DNA sample from him for comparison to
the genetic material found under Monica Schmeyer’s fingernails. Jacoby also
requested a Frye6 hearing, relative to the Commonwealth’s Y-STR DNA analysis.
Following a July 2, 2014 hearing, the trial court denied the motions.
On September 29, 2014, Jacoby proceeded to a jury trial. On October 8, 2014,
the jury found Jacoby guilty of first-degree murder, burglary, tampering with physical
evidence, and robbery. At the conclusion of the penalty phase, the jury recommended a
6
See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
[J-58-2016] - 7
death sentence. On October 9, 2014, the trial court formally sentenced Jacoby to
death.
On October 20, 2014, Jacoby filed a timely post-sentence motion,7 which the trial
court denied on March 17, 2015. On July 23, 2015, Jacoby filed a petition seeking
permission to file an appeal nunc pro tunc with the trial court, along with a
contemporaneous nunc pro tunc notice of appeal. The trial court granted the
permission on the same day.8
II. Issues
Presently, Jacoby raises the following seven issues, which we have restated and
reordered for ease of discussion and disposition:
I. Whether the evidence presented, viewed in the light most favorable
to the Commonwealth, was insufficient to prove beyond a
reasonable doubt [Jacoby] guilty of first[-]degree murder, burglary[,]
and robbery?
II. Whether the trial court erred in denying [Jacoby’s] request for a
new trial where the first[-]degree murder, burglary[,] and robbery
verdicts were contrary to the weight of the evidence and doshock
one’s sense of justice?
III. Whether the warrant seeking to search [Jacoby’s] residence at
1719 West Princess Street, York[,] Pennsylvania[,] lacked probable
cause[:]
1. Whether there was insufficient information contained
within the search warrant to establish probable cause
that [Jacoby] was a suspect in the homicide?
2. Whether the search warrant lack[ed] probable cause
because it [did] not specifically set forth facts and
circumstances to support the belief that the murder
7
The tenth day after sentencing fell on Sunday, October 19, 2014. Thus, Jacoby’s
motion, filed the next day, was timely. See generally 1 Pa.C.S. § 1908.
8
Both Jacoby and the trial court complied with Pa.R.A.P. 1925.
[J-58-2016] - 8
weapon [would have been] found in [Jacoby’s]
residence.
3. Whether the information in the affidavit of probable
cause [was] stale.
IV. Whether the warrant seeking to search [Jacoby’s] parents’
residence at 2440 Meeting House Road, Spring Grove,
Pennsylvania[,] lacked probable cause?
V. Whether the warrant to search [Jacoby] for a DNA sample lacked
probable cause?
VI. Whether the trial court erred in denying [Jacoby’s] request for a
Frye hearing and admitted the Y[-]STR DNA evidence, where such
evidence is unreliable?
VII. Whether the evidence presented during the penalty phase, viewed
in the light most favorable to the Commonwealth, was insufficient to
support a sentence of death?
Brief for Jacoby at 5-6 (some material omitted; capitalization modified).
III. Sufficiency of Trial Evidence
Jacoby first challenges the sufficiency of the evidence proffered by the
Commonwealth to prove him guilty of first-degree murder, burglary, and robbery. In
reviewing sufficiency of evidence claims, “we determine ‘whether the evidence admitted
at trial, and all the reasonable inferences derived therefrom viewed in favor of the
Commonwealth as verdict winner, supports the jury’s findings of all the elements of the
offense beyond a reasonable doubt.’” Commonwealth v. Cash, 137 A.3d 1262, 1269
(Pa. 2016) (quoting Commonwealth v. Smith, 985 A.2d 886, 894-95 (Pa. 2009)). A
sufficiency challenge is a pure question of law. Thus, our standard of review is de novo
and our scope of review is plenary. Commonwealth v. Sanchez, 82 A.3d 943, 967 (Pa.
2013).
We begin with Jacoby’s challenge to his first-degree murder conviction. Jacoby
argues that the Commonwealth failed to prove, beyond a reasonable doubt, that he
killed Monica Schmeyer. Brief for Jacoby at 48. Essentially, Jacoby claims that neither
[J-58-2016] - 9
the Commonwealth’s ballistics evidence nor its DNA evidence was sufficient to prove
identity, either alone or when combined. Jacoby maintains that the remaining evidence
consisted of nothing more than the creation of a timeline that was “so inconclusive that
a jury could not draw a probability of fact from it.” Id. at 51. The Commonwealth
counters that various pieces of evidence permitted the jury to infer that Jacoby was the
killer, even if the jury disregarded entirely its timeline evidence. See generally Brief for
the Commonwealth at 66-67.
To sustain a conviction for first-degree murder, the Commonwealth must
establish beyond a reasonable doubt that: (1) a human being was unlawfully killed; (2)
the defendant was responsible for the killing; and (3) the defendant acted with malice
and the specific intent to kill. Sanchez, 82 A.3d at 967 (citation omitted). As noted
above, Jacoby challenges generally the Commonwealth’s proof identifying him as the
killer, and not whether the Commonwealth established the other elements of murder.
Regardless of his specific argument, “[i]n all cases where a death sentence has been
imposed, this Court is required to conduct an independent review of the sufficiency of
the evidence supporting a first-degree murder conviction.” Commonwealth v. Perez, 93
A.3d 829, 840 (Pa. 2014) (internal quotation marks and citation omitted). Thus, we will
review briefly the evidence in support of the other elements of first-degree murder.
At trial, the Commonwealth called Dr. Land, who testified that Monica Schmeyer
died from a gunshot wound to her head, with the point of entry being just above her left
ear. Dr. Land also noted that she had bruises around both of her eyes, her right cheek,
and left chin, as well as various skin tears around her mouth. In our view, this is
sufficient evidence to show that the victim was killed unlawfully by someone with a
specific intent to kill. See Commonwealth v. Mattison, 82 A.3d 386, 392 (Pa. 2013)
(noting that “[s]pecific intent to kill can be established through circumstantial evidence,
[J-58-2016] - 10
such as the use of a deadly weapon on a vital part of the victim’s body”) (citing
Commonwealth v. Rega, 933 A.2d 997, 1009 (Pa. 2007)).
We now focus upon Jacoby’s specific identity challenge. The Commonwealth
produced several witnesses at trial to establish Jacoby’s identity as the murderer. Dr.
Schmeyer testified that he met Jacoby and the other members of the OSS club at the
local Hooters restaurant. Dr. Schmeyer also testified that he had been paying alimony
to Monica Schmeyer in the amount of $1,700 per month in twenty-dollar bills. Dr.
Schmeyer’s younger daughter, Elsa, was living with Monica Schmeyer at the time.
However, Elsa was in Japan on the actual date of the murder. Dr. Schmeyer explained
at trial that he may have spoken about the alimony and Elsa’s trip at the OSS meetings.
Pete Lobianco, another member of the OSS, indicated at trial that he learned both of the
alimony arrangement and Elsa’s trip at OSS meetings, at which Jacoby usually was
present. Both Dr. Schmeyer and Lobianco testified that Jacoby was not at the March
31, 2010 OSS meeting, which corresponded generally with the time that Monica
Schmeyer was killed.
In addition, William Kagarise testified that he saw a white male matching
Jacoby’s description walking with his head down in the direction of Trone Road on the
day of the murder. Kagarise saw the same person walking in the opposite direction
twenty to thirty minutes later, carrying a white envelope that he did not have the first
time that Kagarise saw him. Kagarise testified that he waved at the person and greeted
him. The man only nodded, kept his head down, and passed by. Officer Jerry Knouse
testified at trial that, when he was inside Monica Schmeyer’s home after the murder, he
observed several white envelopes containing various amounts of money.
Anthony Crawford testified that he observed a silver van pull onto the grass on
Snyder Mill Road between 4:30 and 5:00 p.m. on the day in question, and saw a white
[J-58-2016] - 11
male walking in the direction of the van. Police located two sets of tire tracks on the
grass in this location. Additionally, the bank’s surveillance video showed a silver cargo
van driving in the direction of Trone Road at about 2:38 p.m., and driving away at about
2:59 p.m. The same van appeared on the video at approximately 3:56 p.m. heading
toward Trone Road, and heading away from that direction at 4:57 p.m. Stanley Knight,
Jacoby’s co-worker, identified the van in the surveillance video and explained that
Jacoby had access to the van. When the police inspected the calendar that was used
as a sign-out sheet for the van, they found that the March page had been removed from
the calendar. No one could explain why that page was missing. However, Jacoby
submitted an expense report for reimbursement for gas for the van during March 26 and
March 31, 2010.
Cpl. Krumbine testified as an expert in firearms and tool mark examinations. He
explained to the jury that the .32 caliber shell casing that was found at the murder scene
was consistent with the unspent ammunition that was found in a bedroom in Jacoby’s
parents’ home. Moreover, the casing was discharged from the same firearm that was
used to fire the same size ammunition at the shooting range at Jacoby’s parents’ house.
The search warrant executed on Jacoby’s parents’ house revealed an empty box for a
.32 caliber Kel-Tec weapon and documentation proving that Jacoby purchased the
weapon. These two items were found in the same bedroom where the unspent .32
caliber ammunition was found.
As noted earlier, the police obtained scrapings from underneath Monica
Schmeyer’s fingernails for DNA testing. Y-STR DNA testing revealed a DNA profile
from under the nails that did not belong to Monica Schmeyer. Testing further
determined that Jacoby, as well as all males in his paternal lineage, could not be
excluded as the contributor of the sample.
[J-58-2016] - 12
As the ultimate finder of fact, the jury was free to believe some, all, or none of the
Commonwealth’s evidence. The jury also was free to resolve any inconsistencies or
discrepancies in the testimony in either party’s favor. See generally Commonwealth v.
Ramathal, 33 A.3d 602, 607 (Pa. 2011) (explaining that “[t]he Commonwealth may
sustain its burden of proof by means of wholly circumstantial evidence, and the jury,
which passes upon the weight and credibility of each witness’s testimony, is free to
believe all, part, or none of the evidence”). Here, the evidence supported the jury’s
determination that Jacoby drove his employer’s van to the area of the victim’s
residence, parked a distance away, walked to the residence, committed the murder,
returned to the vehicle, and drove away. The testimony regarding the customized van
belonging to Jacoby’s employer, combined with the testimony concerning the shell
casing, and Jacoby’s knowledge that Monica Schmeyer would be alone and usually
kept cash on hand was more than sufficient, when viewed in the light most favorable to
the Commonwealth, to prove that Jacoby was the person who committed the murder.
The evidence supports the first-degree murder conviction, and Jacoby is not entitled to
relief on this claim.
Jacoby next claims that the Commonwealth presented insufficient evidence to
sustain his burglary conviction. Specifically, Jacoby asserts that the Commonwealth
failed to prove that it was Jacoby who had entered the residence and did so with intent
to commit a crime therein. Brief for Jacoby at 52. To sustain a burglary conviction, “the
Commonwealth is required to prove beyond a reasonable doubt that the offender
entered the premises with the contemporaneous intent of committing a crime therein, at
a time when he or she was not licensed or privileged to enter.” Sanchez, 82 A.3d at
973.
[J-58-2016] - 13
Regarding his claim that the Commonwealth failed to prove that he was the
actor, Jacoby incorporates by reference in his brief his identity argument in his
challenge to his first-degree murder conviction. We reject the same argument for the
reasons set forth in our preceding analysis.
Jacoby next contends that the Commonwealth did not prove that he entered the
residence with the intent to commit a crime once inside. Jacoby relies upon two
Superior Court opinions in support of this argument: Commonwealth v. Willetts, 419
A.2d 1280 (Pa. Super. 1980), and Commonwealth v. Crowson, 405 A.2d 1295 (Pa.
Super. 1979) (per curiam). Neither case affords him any form of relief.
In Willetts, Willetts was convicted of attempted burglary and theft by unlawful
taking. The theft conviction stemmed from Willetts being accused of stealing a van
belonging to a business. The Commonwealth presented eyewitness testimony that
Willetts was seen climbing in and out of, and kicking the van in question, that the van
was stolen, and that a search of Willetts’ person incident to his arrest yielded a map and
a business card that was taken from the stolen van. Nevertheless, the Superior Court
concluded that there was insufficient evidence of theft because “[t]here was no
testimony placing [Willetts] in the vicinity of the service station from which the van was
stolen, nor did anyone see [Willetts] operate the van . . . [and Willetts’] activity around
the van did not evidence [] dominion and control over the vehicle.” Willetts, 419 A.2d at
1282.
Likewise, in Crowson, the Superior Court reversed Crowson’s burglary
conviction. Specifically, the panel concluded that “there [was] no evidence that
[Crowson] entered the [victim’s] residence surreptitiously or by force. In fact, there is no
evidence at all regarding the manner of entry by [Crowson] . . . [or] about the
circumstances regarding [the] entry.” Crowson, 405 A.2d at 1296. The Superior Court
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rejected the Commonwealth’s position that “specific intent to commit a crime can be
inferred solely from the commission of a crime within the entered structure.” Id. at 1296-
97. Therefore, the intermediate court concluded that the Commonwealth had failed to
provide sufficient evidence that Crowson’s entry into the residence in question was
done with the specific intent to commit a crime. Id. at 1297.
In this case, as noted above, the Commonwealth provided evidence that Jacoby
was inside Monica Schmeyer’s home, and was in possession of a .32 caliber firearm.
The Commonwealth also established that Jacoby was seen by William Kagarise walking
from the direction of the home with a white envelope in his hand. The police noted that
Monica Schmeyer kept envelopes containing cash inside her home. The
Commonwealth’s evidence also established that Jacoby learned of this practice, and
that Elsa Schmeyer would not be in the home on the day that he committed the murder.
The evidence warranted the jury to infer that Jacoby, at a minimum, entered the home
with the intent to commit at least a theft. Unlike Willetts, the Commonwealth produced
evidence that placed Jacoby near the crime scene around the time of the 911 call.
Furthermore, unlike Crowson, the Commonwealth introduced evidence that Jacoby and
Monica Schmeyer did not know each other prior to the murder. From this information,
the jury was free to conclude that Jacoby was not licensed or privileged to enter, and
that he gained entry with the intent to commit a crime. Hence, the jury was provided
with circumstantial evidence by which to evaluate the circumstances of the entry, a
factor absent in Crowson. The evidence was sufficient to sustain the burglary
conviction.
Next, Jacoby challenges his robbery conviction, contending that the
Commonwealth’s evidence was insufficient to prove that he committed a theft for
purposes of the offense. See Brief for Jacoby at 54. To convict a person of robbery, as
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is relevant to this case, the Commonwealth must prove that the person inflicted serious
bodily injury upon another person in the course of committing a theft. 18 Pa.C.S. §
3701(a)(1)(i).
The Commonwealth demonstrated, through circumstantial evidence, that Jacoby
was aware that Dr. Schmeyer paid alimony to Monica Schmeyer in cash, and that she
would be home alone on the date in question. The evidence also established that
Monica Schmeyer secreted her money in white envelopes that she placed around her
house. Various witnesses established that Jacoby was seen going to and away from
her residence on the date and at the time of the murder. More importantly, William
Kagarise saw Jacoby coming from the residence carrying a white envelope identical to
those in which Monica Schmeyer kept her money. Undoubtedly, the jury could infer
from this evidence that Jacoby stole cash from Monica Schmeyer in the course of
assaulting and killing her. Jacoby’s argument to the contrary fails.
IV. Weight of the Evidence
Next, Jacoby alleges that the verdict was against the weight of the evidence,
asserting, inter alia, that the “physical evidence presented by the Commonwealth
disputes the Commonwealth’s own theory of the case.” Brief for Jacoby at 57. Jacoby
highlights minor inconsistencies between the surveillance video and the testimony of
various Commonwealth witnesses. Jacoby notes that the Commonwealth’s surveillance
video shows the van driving to and from the direction of Trone Road within a span of
only twenty-one minutes. He further points out that a detective at trial testified that it
takes approximately four minutes to drive from the location of the surveillance video to
Snyder Mill Road. A detective also approximated that it would take nine minutes to walk
from Snyder Mill Road to Monica Schmeyer’s residence. Thus, Jacoby contends, the
Commonwealth’s own witnesses established that it would have taken him at least
[J-58-2016] - 16
twenty-six minutes to complete the drive and walk to the residence, and back. This
calculation does not even include any time spent inside the residence. Finally, Jacoby
identifies other inconsistencies in the timeline testimony, such as the conflict between
William Kagarise’s statement that Jacoby walked back from the Trone Road area
between 3:00 and 3:15 p.m. and Anthony Crawford’s assertion that he saw Jacoby
coming from that area at approximately 5:00 p.m., and with the surveillance video
showing the van leaving that area at 2:50 p.m.
The Commonwealth counters Jacoby’s argument, maintaining that the evidence
pertaining to the location of the van and the eyewitness testimony was introduced for
the purpose of establishing Jacoby’s presence in the area of Monica Schmeyer’s home
at the time of the murder. Moreover, the “evidence shows that [Jacoby] had the
opportunity to commit the home-invasion robbery that culminated in Monica Schmeyer’s
murder.” Brief for the Commonwealth at 77. Although there were facial inconsistencies,
the Commonwealth argues that the jury was free to use the evidence for these two
purposes.
“A motion for a new trial based on a claim that the verdict is against the weight of
the evidence is addressed to the discretion of the trial court.” Commonwealth v. Clay,
64 A.3d 1049, 1054-55 (Pa. 2013). “A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same facts would have
arrived at a different conclusion.” Id. at 1055. When a trial court considers a motion for
a new trial based upon a weight of the evidence claim, the trial court may award relief
only “when the jury’s verdict is so contrary to the evidence as to shock one’s sense of
justice and the award of a new trial is imperative so that right may be given another
opportunity to prevail.” Id. The inquiry is not the same for an appellate court. Rather,
when an appellate court reviews a weight claim, the court is reviewing the exercise of
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discretion by the trial court, not the underlying question of whether the verdict was
against the weight of the evidence. Id. at 1054. The appellate court reviews a weight
claim using an abuse of discretion standard. Id. at 1057.
At trial, the jury was the ultimate fact-finder and the sole arbiter of the credibility
of each of the witnesses. “Issues of witness credibility include questions of inconsistent
testimony and improper motive.” Commonwealth v. Sanchez, 36 A.3d 24, 27 (Pa.
2011) (citation omitted). A jury is entitled to resolve any inconsistences in the
Commonwealth’s evidence in the manner that it sees fit. See Commonwealth v. Rivera,
983 A.2d 1211, 1220 (Pa. 2009) (stating that “the trier of fact, in passing upon the
credibility of witnesses, is free to believe all, part, or none of the evidence”) (citation
omitted).
As noted, inconsistencies in eyewitness testimony are not sufficient to warrant a
new trial on grounds that the verdict was against the weight of the evidence. Clay, 64
A.3d at 1055. Although Jacoby has highlighted various inconsistencies in the
Commonwealth’s evidence, the jury was permitted to reject Anthony Crawford’s
testimony that Jacoby passed by at a much later time than other evidence suggested,
and to resolve any minor inconsistencies between Kagarise’s testimony and the
surveillance video in the Commonwealth’s favor. Assessing all of the evidence
according to the governing principles cited above, we simply cannot conclude that the
trial court abused its discretion when it concluded that the jury’s verdict did not shock its
sense of justice. Consequently, Jacoby’s weight challenge necessarily fails.
V. Search Warrant Executed on Jacoby’s Residence
Jacoby raises several challenges to the search warrants issued in this case. In
his first challenge in this regard, Jacoby challenges the warrant that was executed on
his home on July 6, 2011. Jacoby presents three challenges to this warrant. First, he
[J-58-2016] - 18
asserts that the warrant lacked probable cause supporting the contention that he was
the actor in the murder. Second, he maintains that the warrant lacked probable cause
to establish that the murder weapon would be found inside his residence. Finally,
Jacoby argues that the information contained in the affidavit of probable cause was
stale. We find merit to some of Jacoby’s arguments, but hold that any error was
harmless.
We review the denial of a motion to suppress by examining whether the trial
court’s factual findings are supported by the record. In doing so, we consider all of the
Commonwealth’s evidence, as the succeeding party, as well as any defense evidence
that went uncontradicted. Commonwealth v. Martin, 101 A.3d 706, 719 (Pa. 2014)
(citation omitted). We are bound by any factual findings that are supported by the
record. Id. However, we owe no deference to any legal conclusions drawn by the trial
court. To the contrary, we review those conclusions de novo. Commonwealth v.
Briggs, 12 A.3d 291, 320-21 (Pa. 2011).
All three of Jacoby’s contentions pertain to the alleged inadequacy (and
staleness) of probable cause offered in support of the warrant. The Fourth Amendment
to the United States Constitution commands that “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched,
and the persons or things to be seized.” U.S. CONST. amend IV. Similarly, Article I,
Section 8 of the Pennsylvania Constitution provides that “[t]he people shall be secure in
their persons, houses, papers and possessions from unreasonable searches and
seizures, and no warrant to search any place or to seize any person or things shall
[J-58-2016] - 19
issue without describing them as nearly as may be, nor without probable cause,
supported by oath or affirmation subscribed to by the affiant.” PA. CONST. art. I, § 8.
A search warrant may issue only upon a demonstration of probable cause by an
affiant. See generally Commonwealth v. Gary, 91 A.3d 102, 107 (Pa. 2014). The
existence of probable cause is measured by examining the totality of the circumstances.
Illinois v. Gates, 462 U.S. 213, 238 (1983). “Probable cause exists where the facts and
circumstances within the affiant’s knowledge and of which he [or she] has reasonably
trustworthy information are sufficient in and of themselves to warrant a [person] of
reasonable caution in the belief that a search should be conducted.” Commonwealth v.
Johnson, 42 A.3d 1017, 1031 (Pa. 2012) (internal quotation marks and citation omitted).
A magisterial district judge, when deciding whether to issue a search warrant, must
“make a practical, common-sense decision whether, given all of the circumstances set
forth in the affidavit . . . including the veracity and basis of knowledge of persons
supplying hearsay information, there is a fair probability that contraband or evidence of
a crime will be found in a particular place.” Id. (citation omitted). Conversely, “[a] court
reviewing a search warrant determines only if a substantial basis existed for the
magistrate to find probable cause.” Id. (citation omitted). We also note that there is a
strict particularity requirement in Article I, Section 8 of the Pennsylvania Constitution
that “a warrant must describe the items as specifically as is reasonably possible.”
Commonwealth v. Grossman, 555 A.2d 896, 899 (Pa. 1989); see also Pa.R.Crim.P.
205(2) (requiring all search warrants to “identify specifically the property to be seized”);
id. at 205(3) (requiring all search warrants to “name or describe with particularity the
person or place to be searched”).
The murder in this case occurred on March 31, 2010. The warrant to search
Jacoby’s house did not issue until approximately fifteen months later, on July 6, 2011.
[J-58-2016] - 20
Detective Lisa Layden applied for the warrant, and was the affiant on the affidavit of
probable cause. The affidavit contained the following information.
Det. Layden noted that a .32 caliber shell casing was found at the scene of the
murder. She further indicated that the casing most likely came from a .32 caliber
firearm, possibly one manufactured by Kel-Tec. Search Warrant S51, Affidavit of
Probable Cause, 7/6/2011, at 7. The detective explained that Jacoby was the
registered owner of a Kel-Tec .32 caliber semiautomatic pistol. Id.
Det. Layden also averred that Officer Bryn Lindenmuth interviewed Monica
Schmeyer’s neighbors in the days following the murder. One witness, William Kagarise,
provided Officer Lindenmuth with a description of a man that he saw walking toward,
and later away from, Monica Schmeyer’s home around the time of the killing. Id. at 3.
Det. Layden noted that Anthony Crawford provided Officer Lindenmuth with a similar
physical description of a man that he observed on the same day. Id. Crawford also told
Officer Lindenmuth that he saw a silver van parked in the grass on the side of the road
near his home. Id.
Det. Layden interviewed a woman named Olivia Becker. Becker was Dr.
Schmeyer’s girlfriend. She described a man who was a member of the OSS with Dr.
Schmeyer. Id. at 6. The detective noted that the description was similar to those
provided by Kagarise and Crawford. Id. Moreover, the descriptions matched Jacoby.
Id. at 7.
Det. Layden then explained that she interviewed Bob Sandkuhler and James
Baker of Armstrong World Industries. Both men confirmed that Jacoby worked for that
company. Id. They both informed Det. Layden that Jacoby had signed the company’s
silver van out for use on the day of the murder. The detective explained in the affidavit
that the van owned by Armstrong World Industries was consistent with the description of
[J-58-2016] - 21
the silver van provided by Anthony Crawford. Det. Layden met again with Crawford,
who identified the van owned by Armstrong World Industries as the van he saw near his
house on the day of the murder. Id.
Finally, Det. Layden’s affidavit described Jacoby’s firearm as follows:
The weapon referred to in this search warrant application is a unique item.
The current registered owner (Jacoby) is a convicted felon according to a
criminal history check through PA State Police. Due to this past history, it
is reasonable to believe Jacoby would retain this item, as he is barred
from legally obtaining another hand-gun.
It is reasonable to believe that evidence relevant and material to this
criminal investigation may be found within the residence, property and/or
vehicles owned, rented, or accessible to Jacoby or Sara Powell.
Id. at 8.
We are mindful that, “[i]n dealing with probable cause, however, as the very
name implies, we deal with probabilities. These are not technical; they are the factual
and practical considerations of everyday life on which reasonable and prudent men, not
legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175 (1949). Thus,
viewing the information contained in Det. Layden’s affidavit accordingly, we reject
Jacoby’s arguments that the affidavit lacked probable cause to believe that he was the
actor in the murder. The affidavit, on its face, provided sufficient probable cause to
indicate that Jacoby was the man seen walking to and from the direction of Monica
Schmeyer’s residence on the day in question, and that he used a van belonging to his
employer to drive to and from the general area. There also was probable cause to
believe that Jacoby owned a .32 caliber weapon, the same type of weapon used in the
murder. Thus, the statement of probable cause was sufficient in this regard. However,
his arguments pertaining to whether probable cause existed to believe that the weapon
would be found in his home and that the information contained in the affidavit on this
[J-58-2016] - 22
point was stale are not as easily rejected. To the contrary, we find merit to those
claims.
As noted, Jacoby challenges both the adequacy and staleness of the information
offered in the affidavit to believe that the alleged murder weapon would be found in his
home fifteen months after the murder. Again, Det. Layden asserted in the affidavit that
it was “reasonable” to believe the murder weapon was secreted in Jacoby’s house after
such a substantial period of time because Jacoby was not permitted to own a weapon
as a felon, and therefore was likely to retain the weapon due to the difficulty in procuring
another one in light of his felon status. This is conjecture and speculation, particularly
considering the gap in time, and cannot suffice as probable cause on this point.
The trial court reached similarly speculative conclusions. The court held that the
information provided probable cause and was not stale for two reasons. First, the court
noted that “guns are durable and sometimes valuable objects that people typically hold
on to for the long term.” Trial Court Opinion, 9/21/2015, at 4. This conclusion suffers
from the same defect as Det. Layden’s. It is not tailored or individualized to Jacoby in
any fashion. The court reaches its conclusions on what some unknown people may or
may not do under undefined circumstances. This conclusion falls short of probable
cause. Second, like Det. Layden, the court held that “the fact that [Jacoby] is a
convicted felon and therefore unable to legally obtain another firearm, increases the
likelihood that he would have held on to the firearm already in his possession.” Id.
Even if the trial court is correct that Jacoby’s felony status “increases the likelihood” of
keeping the firearm, that is not the same as establishing that it is probable that the
firearm was still in Jacoby’s home. Like the court’s first conclusion, the latter
explanation is not individualized to Jacoby, or his circumstances. The trial court’s
conclusion rests upon the same flaw described earlier. Probable cause, at a minimum,
[J-58-2016] - 23
must be individualized to the suspect and the circumstances of the case; it requires
more than generalized statements about human behavior that are unsupported by the
specific facts of the case.
“At the very core of the Fourth Amendment stands the right of a man to retreat
into his own home and there be free from unreasonable governmental intrusion.” Kyllo
v. United States, 533 U.S. 27, 31 (2001) (quoting Silverman v. United States, 365 U.S.
505, 511 (1961) (internal quotation marks omitted)). Generally, before police officers
constitutionally, i.e., reasonably, may enter into a person’s home to search for evidence
of a particular crime, they must apply for, and obtain from a neutral and detached
magistrate, a search warrant supported by individualized probable cause.
Neither the Fourth Amendment nor Article I, Section 8 of the Pennsylvania
Constitution explicitly requires individualized suspicion. See Samson v. California, 547
U.S. 843, 855 n.4 (2006) (“The touchstone of the Fourth Amendment is
reasonableness, not individualized suspicion.”). Nonetheless, although not an
“irreducible” component of reasonableness, the general rule is that probable cause must
be predicated upon individualized suspicion, and that searches conducted without such
suspicion ordinarily are deemed unreasonable. City of Indianapolis v. Edmond, 531
U.S. 32, 37 (2000) (citing Chandler v. Miller, 520 U.S. 305, 308 (1997)); Commonwealth
v. Mistler, 912 A.2d 1265, 1271 (Pa. 2006). The United States Supreme Court has
deviated from this baseline principle only in very limited circumstances, such as when
intrusion would serve “special needs, beyond the normal need for law enforcement.”
Edmond, 531 U.S. at 37 (citations omitted). Examples of such instances include: (1)
drug tests; (2) certain administrative purposes; (3) border patrol checkpoints; and (4)
sobriety checkpoints. See Mistler, 912 A.2d at 1271 (collecting cases). The search
warrant executed in the case sub judice implicated none of these special categories. As
[J-58-2016] - 24
such, the probable cause offered in support of that warrant was subject to the general
rule, and, thus, must have manifested suspicion individualized to the time and place of
the search. It failed to do so here.
Probable cause to search Jacoby’s home did not exist simply because probable
cause existed to believe that he had committed the murder, with a weapon of the same
caliber as one that he owned, and then drove in the general direction of his home fifteen
months before the search warrant was issued. Together and by themselves, these
factors do not justify entry without some nexus to the home. The trial court overlooked
the significant gap of time between the murder and the search, and then attempted to
buttress its conclusion with an unsourced assessment of general human behavior.
Without support, the trial court reasoned that people—felons especially—generally do
not discard firearms, even those used in murders.
This broad perspective on probable cause finds no support in Pennsylvania law
and is troubling on several levels. First, the trial court deviated from the search
jurisprudence summarized above without acknowledging or attempting to distinguish it.
The trial court would hold that, if police officers develop probable cause that a person
committed an offense anywhere in the Commonwealth with a weapon of the same
caliber as the one that he or she owns, probable cause exists automatically to search
that person’s home, no matter where it is located. It is easy to discern the infirmity of
this approach. If the trial court’s reasoning were to prevail, when a person commits an
offense with such a weapon in Erie County, police automatically would have probable
cause to search that person’s home, even if it is located in Delaware County. This is
inconsistent with Fourth Amendment jurisprudence.
Additionally, the trial court’s method for evaluating probable cause does not
require consideration, in any way, of the time lapse between the commission of the
[J-58-2016] - 25
offense and the search. Rather than addressing the time gap, the trial court would rest
upon its belief that people generally hold on to guns (even those used in murders) and
that, as such, probable cause to search for guns exists in apparent perpetuity. By this
logic, in the case of the Erie murder, the trial court would find probable cause to search
the Delaware County residence not only immediately after the murder, but also fifteen
months later, and presumably even ten years after the crime.
Finally, aside from the deviation from the core principles of the Fourth
Amendment and Article I, Section 8 that necessarily results from evaluating probable
cause in such general, categorical terms, there is another obvious peril in considering
probable cause in this manner. People of different genders, races, religions, and
backgrounds might respond to certain circumstances differently. Similarly, older people
might not conduct themselves as a younger generation would. Mainers might not
behave like Texans. There is nothing even to suggest that similar people within the
same general category would respond to a set of circumstances in the same way.
Probable cause to search Jacoby’s home must be evaluated based upon the
circumstances of his case, his behavior, and any nexus to the location to be searched,
but not upon categorical assumptions. Our Constitutions prohibit such categorical
conclusions, as well as those searches that are based upon such conclusions.
The architects of our Constitutions rejected general searches, and instead
charged police officers with demonstrating specific and articulable facts to establish
probable cause that a particular person committed a particular crime and that evidence
of that crime would be found in a particular place. The trial court’s approach shortcuts
this bedrock inquiry with general assumptions about human behavior, untethered to the
actual facts at hand, and was erroneous. For these reasons, we find an absence of
probable cause in the warrant to believe that the murder weapon would be found in
[J-58-2016] - 26
Jacoby’s residence fifteen months after the murder. As such, we need not address
Jacoby’s staleness argument.
However, Jacoby is not entitled to relief, because we find that that the trial court’s
error was harmless. “An error is harmless if it could not have contributed to the verdict.
In other words, an error cannot be harmless if there is a reasonable possibility the error
might have contributed to the conviction.” Commonwealth v. Wright, 961 A.2d 119, 143
(Pa. 2008) (citation omitted). The Commonwealth bears the burden to prove beyond a
reasonable doubt that the error did not contribute to the verdict. Id. (citation omitted). In
our view, it has done so here.
Harmless error exists where: (1) the error did not prejudice the defendant
or the prejudice was de minimis; (2) the erroneously admitted evidence
was merely cumulative of other untainted evidence which was
substantially similar to the erroneously admitted evidence; or (3) the
properly admitted and uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error was so insignificant by
comparison that the error could not have contributed to the verdict.
Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005) (quoting Commonwealth v.
Robinson, 721 A.2d 344, 350 (Pa. 1998)).
Earlier in this opinion, we summarized all of the evidence presented against
Jacoby. Reviewing that evidence in light of the standard set forth immediately above,
we conclude that the Commonwealth’s evidence, sans the Kel-Tec second-generation
barrel that was found in Jacoby’s home, was overwhelming, and that the introduction of
the barrel was “so insignificant by comparison that the error could not have contributed
to the verdict.” Id. The Commonwealth’s evidence established that Monica Schmeyer
was killed by a gunshot wound to the head, which was inflicted from a close distance.
Discussions at OSS meetings revealed that Monica Schmeyer collected support from
Dr. Schmeyer, and that she kept the funds in cash and in white envelopes. Moreover,
Dr. Schmeyer announced at those same meetings that Schmeyers’ daughter would not
[J-58-2016] - 27
be home on the day of the murder. On that date, a man matching Jacoby’s description
was seen driving a customized van that belonged to the company for which Jacoby
worked. Jacoby later submitted a voucher for reimbursement for costs associated with
the use of the van for a span of time that included the day of the murder. The man
meeting Jacoby’s description also was seen walking in the direction of the Schmeyer
residence, and then walking back a short time later carrying a white envelope. Jacoby,
who attended OSS meetings,9 also was not present at the OSS meeting that was held
at the exact time that Monica Schmeyer was murdered, even though his fiancée
generally expected him to be at the meeting.
The murder weapon was a .32 caliber firearm. The police recovered ammunition
matching the casings found at the murder scene at the following locations: a bedroom
in Jacoby’s parents’ home, and a makeshift shooting-range on that property. In fact, the
casings found at the murder scene were proven definitively to have been fired from a
gun that also was fired at that shooting range. The Commonwealth produced for the
jury a receipt proving that Jacoby had purchased a .32 caliber firearm.
Finally, through the Y-STR DNA testimony, the Commonwealth was able to
include Jacoby, by virtue of his male lineage, in the limited group of people who could
9
As the dissent observes, the frequency of Jacoby’s attendance at the OSS
meetings was not described with precision at trial. Compare N.T., Oct. 6, 2014, at 1212
(indicating that Jacoby’s attendance was irregular), with id. at 1297 (characterizing the
attendance as “somewhat regular.”). Nonetheless, the point is that the crime aligned
with the circumstances discussed at the OSS meeting, such as the fact that Monica
Schmeyer secreted her money in white envelopes and the fact that she was alone on
the date of the murder due to her daughter’s absence. The remainder of the evidence
convincingly established that Jacoby was the perpetrator of the crime. Thus, explicit
testimony proving that Jacoby attended the meeting where these matters were
discussed was not necessary. The circumstantial evidence proved both the crime and
the identity of the perpetrator.
[J-58-2016] - 28
have committed the crime, as such biological evidence was found under Monica
Schmeyer’s fingernails.
Viewed objectively, this evidence demonstrates overwhelmingly that Jacoby was
the murderer, even without considering the evidence found via the search warrant
executed on Jacoby’s residence. In dissent, Chief Justice Saylor maintains that
introduction of the Kel-Tech second-generation barrel could not have been harmless,
largely because, in closing arguments, the Commonwealth urged the jury to consider
that evidence. See Dissenting Opinion at 5-6 (citing N.T. 10/7/2014 at 1535 (“The
ballistics tell us everything.”); id. at 1564 (“Gun, DNA, guilty.”)). However, the barrel
found in Jacoby’s home was not the entirety of the ballistics evidence, and not the only
evidence relied upon by the Commonwealth. The ballistics evidence included the much
more inculpatory material that was found at Jacoby’s parents’ house, which police
actually matched with the evidence found at the murder scene. Hence, there was
ample, indeed overwhelming, ballistics evidence even without the barrel in question.
Moreover, although the Commonwealth’s arguments fairly can shed light on the
importance of certain aspects of its evidentiary case, those arguments do not
automatically shield errors from being deemed harmless, and do not do so here. As the
preceding summary of the inculpatory evidence demonstrates, the Kel-Tech barrel
played, at best, only a minimal part in the Commonwealth’s ballistics evidence and its
overall evidentiary presentation, and its admission was overwhelmed by the substantial
remainder of inculpatory evidence. Thus, we hold that the incorrectly admitted evidence
did not contribute to the verdict in any meaningful way. The error, simply put, was
harmless. Jacoby is not entitled to relief.
VI. Search Warrant Executed on Jacoby’s Parents’ Residence
[J-58-2016] - 29
Jacoby next challenges the July 7, 2011 search warrant that was executed on his
parents’ home. Specifically, Jacoby contends that the affidavit lacked sufficient
probable cause to justify issuance of the warrant. In his view, the affidavit lacked
specific facts that would lead one to conclude that evidence of the homicide might be
found in his parents’ home, and, to the extent that such information was in the affidavit,
it was stale. Brief for Jacoby at 32-33. The Commonwealth has two responses. First,
as a threshold matter, the Commonwealth disputes the trial court’s conclusion that
Jacoby had standing to contest the search of his parents’ home. Second, the
Commonwealth claims that the affidavit contained adequate probable cause to support
the issuance of the warrant, and the facts offered in support of probable cause were not
stale. Brief for the Commonwealth at 31, 33-34.
The affidavit offered in support of the warrant to search Jacoby’s parents’ home
contained all of the same information that was averred in the affidavit to search
Jacoby’s house, but with the following averments, as summarized by the trial court:
During the search of [Jacoby’s] residence, a small caliber bullet and barrel
of a handgun had been found; and
[Jacoby’s] fiancée, who lived with [Jacoby] at his residence, had seen
handguns in their home, including a small gun fitting the description of the
weapon used to murder the Victim, and had also seen [Jacoby] give guns
to his father and shoot guns at the range on his father’s farmette on 2440
Meeting House Road.
Trial Court Opinion, 9/21/2015, at 6; Search Warrant S57, Affidavit of Probable Cause,
7/6/2011, at 8.
Before we can assess whether these additional statements suffice to establish
probable cause to search Jacoby’s parents’ residence, we first must consider whether
Jacoby has standing to challenge the search. Standing is the authority “to assert a
constitutional violation and thus seek to exclude or suppress the government’s evidence
[J-58-2016] - 30
pursuant to the exclusionary rules under the Fourth Amendment [to] the United States
Constitution or Article 1, Section 8 of the Pennsylvania Constitution.” Commonwealth v.
Hawkins, 718 A.2d 265, 266 (Pa. 1998) (citation omitted). In Pennsylvania, as a
constitutional mandate, individuals that are charged with possessory offenses generally
enjoy automatic standing to challenge the constitutionality of searches that yield
evidence that the Commonwealth intends to use against that person at trial. See
Commonwealth v. Sell, 470 A.2d 457, 469 (Pa. 1983). However, that mandate does not
extend to any and all possessory offenses. Indeed, there are limits to automatic
standing.
Generally, a defendant will have automatic standing to challenge a search or
seizure if he or she can demonstrate either: “(1) his presence on the premises at the
time of the search and seizure; (2) a possessory interest in the evidence
[unconstitutionally] seized; (3) that the offense charged include[s] as an essential
element of the prosecution’s case, the element of possession at the time of the
contested search and seizure; or (4) a propriety or possessory interest in the searched
premises.” Commonwealth v. Peterkin, 513 A.2d 373, 378 (Pa. 1986) (citation omitted;
brackets in original).
In this case, Jacoby maintained that he had automatic standing under Article I,
Section 8, of the Pennsylvania Constitution, because he had been charged with at least
one possessory offense. The Commonwealth responded that this Court’s decision in
Peterkin—discussed immediately below—limits the application of the automatic
standing doctrine when the basis for standing is a possessory offense. The trial court
determined that Jacoby had standing because he had been charged with persons not to
possess a firearm in connection with the .50 caliber Desert Eagle handgun that was
found in his parents’ home. The trial court apparently believed that the existence of the
[J-58-2016] - 31
possessory charge sufficed to establish standing, without any further consideration of
the timing and circumstances of that offense. Peterkin instructs otherwise.
In Peterkin, following convictions for first-degree murder, robbery, and
possession of an instrument of crime (“PIC”), Peterkin challenged the search of a
friend’s home, where the police found the murder weapon that that also formed the
basis of the PIC charge. Among other claims, Peterkin alleged that he had automatic
standing to challenge the search of his friend’s home. Id. at 377. This Court specifically
rejected the notion that the PIC charge, in and of itself, conferred automatic standing
upon Peterkin. We explained that the Commonwealth’s “case against [Peterkin] on that
charge was not dependent upon his possession of the instrument of the crime at the
time of the contested search and seizure.” Id. at 378. Rather, the PIC “charge
emanated from [Peterkin’s] criminal employment of the [weapon] in the commission of
the murders and robbery.” Id.
In the case sub judice, it is undisputed that Jacoby was not present at the time of
the search of his parents’ home, that he lacked a possessory interest in his parents’
home, and that he lacked a possessory interest in the items seized. Furthermore,
although the Commonwealth initially charged Jacoby with persons not to possess a
firearm, the trial court erred in relying upon this charge to award automatic standing.
According to the criminal information, the Commonwealth alleged “that on or about
March 31, 2010,” Jacoby “possessed . . . a .50 caliber pistol” at a time when Jacoby had
previously been convicted of a robbery, a felony for purposes of a persons not to
posses a firearm charge. Criminal Information, 10/9/2012, at 1. The possessory
offense, in and of itself, however, is not dispositive. Peterkin requires us to focus upon
whether the defendant is charged with possessing a certain item or contraband “at the
time of the contested search and seizure.” Peterkin, 513 A.2d at 378. Here, the
[J-58-2016] - 32
“contested search and seizure” is the July 7, 2011 search of Jacoby’s parents’ home,
whereas the Commonwealth alleged that the crime of persons not to possess occurred
when the murder took place, on March 31, 2010. Criminal Information, 10/9/2012, at 1.
Thus, as in Peterkin, because the Commonwealth did not charge Jacoby with a
possessory offense arising from the time of the contested search, the possessory
offense itself does not confer automatic standing upon Jacoby. Consequently, Jacoby
lacked standing to challenge the search warrant and subsequent search of his parents’
home.10
VII. Search Warrant for DNA Sample
In his next argument, Jacoby challenges the search warrant issued to collect a
DNA sample from him. Specifically, Jacoby maintains that the warrant was not
supported by probable cause, because the informant used, in part, as the basis for
probable cause was anonymous. Jacoby also argues that, even though the informant
indicated that Jacoby had a cut on his hand on the day of the murder, the informant did
not specify where the cut was located on his hand or the seriousness of the cut.
Apparently, Jacoby believes that this lack of specificity undercuts the existence of
probable cause. The Commonwealth argues that Jacoby’s argument zeroes in on only
10
As a side note, even if Jacoby did have automatic standing, he nonetheless likely
would be unable to satisfy another threshold requirement for suppression, that he
demonstrate an expectation of privacy in the area that was searched. Standing confers
only the authority to file the motion and assert a constitutional violation. See generally
Commonwealth v. Enimpah, 106 A.3d 695, at 698-99 (Pa. 2014). But, it does not
negate the need to demonstrate a reasonable expectation of privacy in the area that
was searched. See New York v. Class, 475 U.S. 106, 112 (1986) (explaining that a
“State’s intrusion into a particular area, whether in an automobile or elsewhere, cannot
result in a Fourth Amendment violation unless the area is one in which there is a
constitutionally protected reasonable expectation of privacy”) (internal quotation marks
omitted). Here, Jacoby would have had to prove that he had an expectation of privacy
in someone else’s house.
[J-58-2016] - 33
one line of the affidavit of probable cause, and ignores the remainder of the information
contained therein. In the Commonwealth’s view, “[l]ooking at the information contained
in the affidavit as a whole in a common sense, non-technical manner, the affidavit
contains sufficient information to establish probable cause.” Brief for the
Commonwealth at 35.
The affidavit for the DNA warrant details the evidence that the police had
gathered and asserted in the search warrant application for Jacoby’s residence.
Particularly, the affidavit notes the description of the van and the witnesses who saw a
man matching Jacoby’s general features walking to and from the direction of Trone
Road on the date and at the time of the murder. Search Warrant S65, Affidavit of
Probable Cause, 9/20/2012, at 2. In addition, the affidavit contains information related
to the evidence found through the execution of the warrants on Jacoby’s residence and
on Jacoby’s parents’ residence, including the weapon and ammunition evidence. Id. at
3. The affidavit also notes that ballistic testing confirmed that “all of the .32 caliber
spent shell casings recovered at [Jacoby’s] parents’ property were fired from the same
gun that fired the .32 caliber spent shell casing found at the crime scene.” Id. at 4.
Finally, the affidavit indicates that Monica Schmeyer had multiple contusions on her
body that were indicative of an assault, and that fingernail scrapings from both of her
hands, which may be suitable for locating and testing a DNA sample from her attacker,
had been preserved during the autopsy. Id. at 4-5.
The totality of the circumstances described within the four corners of the affidavit
established probable cause for the issuance of the warrant. The affidavit described the
evidence gathered by law enforcement throughout the investigation, including two
executed search warrants, which convincingly raised the probability that Jacoby was the
perpetrator of the murder. This, coupled with the description of the nature and
[J-58-2016] - 34
character of the injuries sustained by Monica Schmeyer during the assault, created the
probability that Jacoby’s DNA would be found on the fingernail scrapings preserved
during the autopsy. It is immaterial to our analysis whether anyone observed a cut on
Jacoby’s hand. Probable cause clearly existed regardless of that information. The trial
court correctly denied Jacoby’s suppression motion pertaining to the DNA warrant.
VIII. Frye Hearing on Y-STR DNA Evidence
Next, Jacoby asserts that the trial court erred in denying his request for a Frye
hearing on the reliability of the methodology used in the Y-STR DNA testing. Brief for
Jacoby at 38-47. Appellate courts review evidentiary decisions for an abuse of
discretion. Commonwealth v. Walker, 92 A.3d 766, 772 (Pa. 2014) (citations omitted).
“An abuse of discretion is not merely an error of judgment, but if in reaching a
conclusion the law is overridden or misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the
evidence or the record, discretion is abused.” Id. at 772-73 (internal quotation marks
and citations omitted).
In general, expert testimony is permitted in all trials “when it involves
explanations and inferences not within the range of ordinary training[,] knowledge,
intelligence and experience.” Id. at 788. Expert testimony is governed generally by
Rule 702 of the Pennsylvania Rules of Evidence.
Rule 702. Testimony by Expert Witnesses.
A witness who is qualified as an expert by knowledge, skill, experience,
training or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge is beyond that possessed by the average
layperson;
(b) the expert’s scientific, technical, or otherwise specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; and
[J-58-2016] - 35
(c) the expert’s methodology is generally accepted in the
relevant field.
Pa.R.E. 702. The Frye standard, first adopted by this Court in Commonwealth v. Topa,
369 A.2d 1277 (Pa. 1977), is used to determine the admissibility of novel scientific
evidence, and is incorporated into Rule 702. Grady v. Frito-Lay Inc., 839 A.2d 1038,
1043 (Pa. 2003). Frye permits novel scientific evidence to be admitted at trial “if the
methodology that underlies the evidence has general acceptance in the relevant
scientific community.” Walker, 92 A.3d at 789 (citation omitted). Once it is established
that the scientific evidence in question is novel, “the proponent must show that the
methodology is generally accepted by scientists in the relevant field, but need not prove
the conclusions are generally accepted.” Id. at 790 (citation omitted). The burden is on
the proponent of the evidence to demonstrate its admissibility. Id. A Frye hearing is not
required in every instance that a party wants to introduce scientific evidence. Rather, a
hearing is warranted only when the trial court “has articulable grounds to believe that an
expert witness has not applied accepted scientific methodology in a conventional
fashion in reaching his or her conclusions.” Id. (citation omitted).
As noted above, the science at issue in this case is Y-STR DNA. Pennsylvania
courts have not had an opportunity to comment upon the admissibility of Y-STR DNA
evidence. We begin with a description of Y-STR DNA, upon which the parties appear to
agree. As Jacoby points out, in general, “[t]here are basically two types of DNA testing:
RFLP (restriction fragment length polymorphisms) and PCR (polymerase chain
reaction).”11 Brief for Jacoby at 38. In PCR testing, a technician takes DNA primers
and consistently copies these two pieces of DNA over a period of time to the point that
11
Jacoby acknowledges that this Court has upheld the RFLP method as generally
accepted in the scientific community. See generally Commonwealth v. Blasioli, 713
A.2d 1117, 1126-27 (Pa. 1998).
[J-58-2016] - 36
“millions or billions of DNA molecules” are created. Id. at 39. STR stands for “short
tandem repeats,” which basically is a short DNA sequence that repeats itself. 12 Id.
“The number of repeats in STR markers can be highly variable among individuals,
which make them particularly desirable for identification determinations.” People v.
Zapata, 8 N.E. 3d 1188, 1192 (Ill. App. Ct. 2014) (citation omitted). Current STR
analyses “focus[] on the small noncoding regions of the DNA molecule.” Id. (citation
omitted). “The number of repeats of a specific STR sequence present at a given locus,
combined over a designated number of loci, creates a unique DNA ‘profile’ of an
individual.” Id. (citation omitted).
Y-STR DNA focuses upon the Y chromosome, which is “found only in males and
is one of the smallest human chromosomes.” Brief for Jacoby at 40 (citation omitted).
When conducting a Y-STR DNA analysis, the scientist is looking at how common this
particular locus or haplotype is in the database of Y chromosomes. Id.
In his pretrial motion, Jacoby requested a Frye hearing for two general reasons.
First, Jacoby maintained that “Y-STR is notably weaker [than other types of DNA
testing] because instead of making a ‘match,’ the result can merely indicate that Jacoby
and all his male relatives cannot be ruled out.” Jacoby’s Omnibus Pretrial Motion,
6/24/2013, at ¶55; see id. at ¶59 (stating, “Y-STR DNA cannot uniquely identify an
individual like RFLP DNA, and should be reserved for cases where STR testing has
failed”). Second, Jacoby claimed that the Y-STR DNA database has problems like “size
limitations, a limited cross-section of samples and a limited representation of rare
12
As this Court noted in Blasioli, “[t]here are four kinds of nucleotide bases in DNA:
adenine (A), guanine (G), cytosine (C), and thymine (T). Due to their chemical
composition, these can fit together only as follows: adenine will only pair with thymine,
and cytosine will pair only with guanine.” Blasioli, 713 A.2d at 1120 n.5 (citation
omitted).
[J-58-2016] - 37
haplotypes.” Id. at ¶60. Presently, Jacoby claims that “unlike autosomal DNA, Y-STR
DNA has limited discriminatory power.” Brief for Jacoby at 42. Jacoby also argues that
“[t]here are several limitations to the current databases available for Y-STR DNA
comparison.” Id. at 45. Although Jacoby asserts that NMS Labs uses the “counting
method,”13 he does not argue that the counting method is novel science, nor does he
challenge the statistical conclusions stemming from the use of the counting method.
See id. at 40-41.
As noted, Jacoby has raised a number of arguments in support of his request for
a Frye hearing. However, at the trial court’s hearing on the motion, it is clear that
Jacoby was unable to satisfy the threshold Frye requirement that the methodology
being challenged is novel. To appreciate fully the deficiency in this aspect of Jacoby’s
argument, a review of the relevant portions of the transcript from that hearing is
necessary, and follows:
[ADA]: . . . the Commonwealth would assert that there
is not the need for a Frye hearing in this matter
because this is not novel science.
* * *
THE COURT: But wait a minute, we’re talking about whether
from a perspective of -- is it novel science, or is
it just a different application of established
science? Is that not really what this is about?
[DEFENSE COUNSEL]: It is, yes. However, when you’re looking at
how you analyze Y-STR, its application is
13
Jacoby describes the counting method as being comprised of four steps. First, a
“profile of a Y[-]STR haplotype generated from an evidence sample is searched against
a reference database(s) of unrelated individuals[.]” Brief for Jacoby at 40. Next, “[t]he
number of times the Y[-]STR haplotype is observed in a database is counted[.]” Id. The
third step is where “[t]hat count is divided by the number of profiles in the reference
database(s)[.]” Id. Finally, “[a] confidence interval is placed on the proportion of
count/total profiles in a database(s).” Id. at 41.
[J-58-2016] - 38
relevant, because you can’t just take the data,
you have to analyze the data. So when you’re
analyzing the data and using it in the capacity
of forensic science, and using it in a criminal
case, specifically a homicide, that’s why we
consider the application, the analysis to be
novel.
THE COURT: And I don’t get that. Why is that?
[DEFENSE COUNSEL]: Because I don’t think you can look at it as just
a bright line test, considering how we use the
analysis of it. You have to take the DNA, and
once you gather the DNA, then you have to put
it and analyze it against everything else.
THE COURT: Is there anything novel about any of that so
far?
[DEFENSE COUNSEL]: Novel? Not until you get to the second part,
no. The analysis, the gathering, that is not
novel science.
THE COURT: What is novel then?
[DEFENSE COUNSEL]: Then when you get to the databases and the
analysis portion of it. With regular STR, you
can put it in the database and it comes back
and says that the DNA that we found belongs
to Your Honor, and the chance of it being
anyone else would be more than the people on
the planet.
When you’re looking at Y-STR, it doesn’t do
that, and I understand that that doesn’t make it
novel, but you have to get the database. The
database for STR is ginormous, more than the
people on the planet. For Y-STR, we’re not at
that point yet, and that’s why I say its
application is novel in this area.
THE COURT: Is there anything novel about how the
database is gathered or how the data making
up that base is gathered?
[DEFENSE COUNSEL]: It is to some extent because we’re not in the
same place. Like a regular database for STR, I
can take someone’s DNA and I can put it in the
[J-58-2016] - 39
national database, and I know that that’s out
there and it’s used. You can’t do that with Y-
STR. It has to be kept separate from everyone
else. You can’t mix the two together because
they’re different, so we’re starting at something
new.
THE COURT: How is that new? How is that new? That
sounds like they are gathering -- the scientific
methods used to gather the data to form the
basis of it is hindsight. That’s my
understanding. I’m not a scientist. I could be
wrong about that.
What I hear you saying is -- I don’t know what I
hear you saying, to be frank with you. I mean
what’s novel about any of this?
[DEFENSE COUNSEL]: My argument is, is that if it wasn’t novel, if it
wasn’t new, then we would have just been able
to use the same databases that have been
around for all these years that work for the
STR, the databases that have been here, that
have been used, but we didn’t, because we
can’t, so we had to create new databases, and
these databases are limited. They’re limited by
size.
THE COURT: Is there anything novel about the manner in
which the database is created?
[DEFENSE COUNSEL]: They are in the way they are utilized. They are
--
THE COURT: No, created.
[DEFENSE COUNSEL]: They’re created -- yes. I mean they’re created
for Y-STR, so they’re novel in the extent of how
they can be created. I mean it’s a different
methodology in the way that you are actually
analyzing the data. The databases themselves
are not the same as the STR databases.
THE COURT: I’m just -- is there anything scientifically novel
about the manner in which the database is put
together, is created? What’s scientifically
novel about that? Are there any particularly
[J-58-2016] - 40
new scientific procedures that are subject to
any kind of dispute or that are new?
[DEFENSE COUNSEL]: The technique is the same, and Your Honor, I
understand what the argument is. The
problem is that you’re taking something that is
being now used that was never used. It’s the
same as mitochondrial DNA. It’s used in cases
where I find bones lying in the field
somewhere, and I want to find out who this
person is, or I want to find my ancestry and go
back. It has a purpose.
Like polygraphs. Polygraphs are great.
Investigators have been using them for years,
but we don’t bring them into the Court setting
for a reason. The same reason why you have
the Y-STR. It’s a good tool, it’s going to be
very helpful in the scientific community, but it
shouldn’t be brought into the courtroom.
THE COURT: But then you’re arguing -- you’re not arguing
novel, the novel nature, you’re arguing the
persuasiveness of the evidence generated by
that process. Doesn’t that go to weight?
[DEFENSE COUNSEL]: There is a ton of issues to be argued to go to
weight.
* * *
[DEFENSE COUNSEL]: Well, arguing Y-STR, Your Honor, with all due
respect, York County has been the only place
in Pennsylvania that I’ve been able to come
across that uses it. There hasn’t been any
place else in Pennsylvania that --
THE COURT: That doesn’t make it unique. That may make it
--
[DEFENSE COUNSEL]: New.
THE COURT: But it doesn’t make it novel. If the manner in
which the information that goes into forming
the database, is based upon or is gathered by
established non [sic] and novel scientific
means, how then can the database itself be
deemed to be novel?
[J-58-2016] - 41
[DEFENSE COUNSEL]: Because of the way that it’s used.
THE COURT: How is the use of it -- how is the use of it
scientifically new?
[DEFENSE COUNSEL]: Because it’s not there yet. The databases
aren’t large enough yet --
THE COURT: Ma’am, I apologize, the application of this
evidence may be novel, but it’s not scientifically
novel. It may be used in a new non-scientific
way. Do you not agree?
[DEFENSE COUNSEL]: I agree, and I guess what I am asking the
Court to understand is that just because
something may be scientifically reliable in a
usage does not mean it can be scientifically
reliable in all usages, and what we’re doing is
we’re taking something that’s out there and
trying to adapt it to forensic usage, and it
shouldn’t be.
And I understand that Your Honor looks at it as
more of a weight issue, and I agree that there
are many weight issues that come with Y-STR.
I’m asking the Court to consider --
* * *
THE COURT: And what do [the scientific journals] say?
[DEFENSE COUNSEL]: That there [are] limitations on the databases,
that there’s limited discriminatory power, that
they haven’t addressed all the geographic
concerns with the databases at this point.
Notes of Testimony, 1/2/2014, at 40-48.
Questions that raise scientifically complex questions are no easy task for courts.
Nonetheless, when considering those questions, we remain bound by our standard of
review. Thus, Jacoby is entitled to relief only if he can demonstrate to this Court that
the trial court’s decision was an abuse of discretion; that is, inter alia, the court’s
[J-58-2016] - 42
determination was manifestly unreasonable. Under the limited circumstances of this
case, we conclude that Jacoby did not make such a showing.
As is evident from the arguments that Jacoby advanced at the hearing, i.e., his
opportunity to demonstrate the necessity for a Frye hearing, Jacoby could not overcome
the trial court’s conclusion that his argument was predicated upon the weight that
should be assigned to the Y-STR DNA evidence, and not upon the novelty of the
database process itself.14 Repeatedly, Jacoby was forced by the trial court’s
questioning to concede that the Y-STR databases were not created in a novel fashion
that would differentiate the scientific methods of creating these databases from others.
14
The learned dissent posits that we effectively are finding that Jacoby has waived
all of the arguments that he outlined in his pre-trial motion, but that were not raised at
the hearing. See Dissenting Opinoin at 5, n.4. We make no such finding. As noted,
our task simply is to determine whether the trial court abused its discretion. The court
provided Jacoby with a forum to demonstrate that a Frye hearing would be warranted in
this case. Jacoby’s counsel argued the case as she saw fit. The trial court did not
restrain Jacoby’s opportunity to present other arguments. The trial court had threshold
concerns that Jacoby was attacking only the weight that should be attributed to the DNA
results, and not the novelty of the methodologies utilized to reach those results. Given
the chance overcome those concerns, Jacoby could not. We merely evaluate the trial
court’s exercise of discretion based upon the record before this Court.
The arguments highlighted by the dissent pertain to the weight that should be
attributed to the evidence, and not the admissibility of that evidence. The dissent notes
that Jacoby challenges “the reliability of the statistical conclusions derived from the Y-
STR DNA testing,” argues that the “database is too small,” and maintains that “local
databases should be employed to account for profile frequency differences.” See
Dissenting Opinion at 6 (citing Defendant’s Ominbus Pretrial Motions at ¶¶60-61).
Finally, the dissent points out that Jacoby highlighted differences between Y-STR DNA
testing and autosomal DNA testing. Once more, all of these arguments are arguments
that can be made to a jury to demonstrate why Y-STR DNA results should not carry the
same weight as other types of DNA testing. But they are not challenges to the novelty
of the methodology of Y-STR DNA such that a Frye hearing would be justified, much
less required as a matter of law. They certainly are not so distinguishable from the
weight discussion between Jacoby’s counsel and the trial court at the hearing that the
trial court’s failure to grant a full Frye hearing cleared the high bar required to manifest
an abuse of discretion.
[J-58-2016] - 43
Indeed, Jacoby’s attorney conceded that the technique for creating the database was
the same as in other DNA databases. Jacoby’s arguments were premised substantially
upon the fact that Y-STR databases have not yet grown large enough to secure a more
reliable result, that they do not account for geographical differences, and that, because
of their size and limitations, the results are not sufficiently discriminatory to constitute
reliable evidence. These arguments are directed at the weight that should be assigned
to that evidence at trial, and not at the novelty of the creation of the databases. They
are arguments for a jury.15
Jacoby did not satisfy his burden of demonstrating that the aspect of the process
that he focused upon was novel such that we could find an abuse of discretion by the
trial court. Consequently, he is not entitled to relief.16
IX. Sufficiency of Penalty Phase Evidence
Finally, we consider Jacoby’s claim that the evidence was insufficient to support
the imposition of a death sentence. As a statutory matter, this Court is required to affirm
a death sentence unless we conclude either that the evidence was insufficient to
15
Indeed, Jacoby did just that at trial. The certified record reflects that defense
counsel cross-examined Jillian Fesolavich, a forensic biologist at NMS Labs, about the
weaknesses of the Y-STR DNA evidence in this case. Notes of Testimony, 9/29/2014,
at 417, 422-23, and 433-34. Jacoby also called his own expert, Katherine Cross, who
formerly worked for NMS Labs and “did the original extractions and testing of . . . the
fingernail samples, and ran the autosomal testing” in this case. N.T., 10/3/2014, at
1104. Ms. Cross elaborated upon the weakness of the application of Y-STR DNA
testing in this case. See generally id. at 1106-15.
16
There may be challenges to other aspects of the Y-STR DNA methodologies.
Jacoby identified some of those issues in his original pre-trial motion as well as in his
brief to this Court. We do not hold that a Frye hearing will never be required to assess
an aspect of the Y-STR DNA methodology, nor do we foreclose the possibility of relief in
other cases where a defendant challenges the admissibility of Y-STR DNA evidence.
We hold only that Jacoby’s proffer at the hearing was insufficient to demonstrate
novelty, and that the trial court did not abuse its discretion in this instance.
[J-58-2016] - 44
support at least one aggravating factor or that the jury’s determination was “the product
of passion, prejudice, or any other arbitrary factor.” 42 Pa.C.S. § 9711(h)(3)(i);
Commonwealth v. Murphy, 134 A.3d 1034, 1042 (Pa. 2016). The only aggravating
factor that was submitted to the jury by the Commonwealth was that “[t]he defendant
committed a killing while in the perpetration of a felony.” 42 Pa.C.S. § 9711(d)(6). The
jury found this factor present beyond a reasonable doubt. See Penalty Phase Verdict
Slip, 10/9/2014, at 1-2.
Presently, Jacoby acknowledges that “[t]his [C]ourt cannot determine whether the
jury gave undue weight to the aggravating factor, for that is not reviewable.” Brief for
Jacoby at 60. Instead, Jacoby reasserts his claim that the felonies that could have
supported the aggravating factor, burglary and robbery, were not supported by sufficient
evidence. However, as we have explained above, both convictions were supported by
proof beyond a reasonable doubt. Additionally, we have reviewed the certified record,
and we conclude that the death sentence was not “the product of passion, prejudice, or
any other arbitrary factor,” and Jacoby does not forward any substantive argument to
the contrary. 42 Pa.C.S. § 9711(h)(3)(i). Therefore, we find no basis to vacate the
penalty on sufficiency grounds.
X. Conclusion and Mandate
Based upon the foregoing, Jacoby is not entitled to relief. The judgment of
sentence is affirmed. The Prothonotary is directed to transmit a copy of the record and
this opinion to the Governor pursuant to 42 Pa.C.S. § 9711(i).
Jurisdiction relinquished.
Justices Todd and Dougherty join the opinion in full.
[J-58-2016] - 45
Justice Mundy joins Parts I-IV and VI-X of the opinion and files a concurring
opinion in which Justice Baer joins.
Chief Justice Saylor joins Parts I-IV, VI, VII, and IX of the opinion and files a
dissenting opinion.
Justice Donohue joins Parts I-VII and IX of the opinion and files a concurring and
dissenting opinion.
[J-58-2016] - 46