J-S50026-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SEAN KRATZ :
:
Appellant : No. 150 EDA 2020
Appeal from the Judgment of Sentence Entered November 18, 2019
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0006072-2017
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: Filed: April 30, 2021
Appellant, Sean Kratz, appeals from the judgment of sentence entered
on November 18, 2019, after he was convicted of first-degree murder of
Dean Finocchiaro (“Finocchiaro”), second-degree murder of Finocchiaro while
in the commission of a robbery, voluntary manslaughter of Thomas Meo
(“Meo”), voluntary manslaughter of Mark Sturgis (“Sturgis”), conspiracy to
commit first-degree murder of Finocchiaro, robbery of Finocchiaro, conspiracy
to commit robbery of Finocchiaro, abuse of corpse of Finocchiaro, abuse of
corpse of Meo, abuse of corpse of Sturgis, possessing an instrument of a crime
with intent, possession of a weapon, and theft by receiving stolen property of
Finocchiaro.1
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2502(a), 2502(b), 2503(a), 903, 3701(a)(1)(i), 5510, 907(a),
907(b), and 3925(a), respectively.
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The penalty phase of the trial was scheduled to commence on
November 18, 2019. On that date, the Commonwealth informed the trial
court that it no longer wished to pursue the death penalty. N.T. (Trial),
11/18/19, at 3. Accordingly, the trial court sentenced Appellant to life
imprisonment without parole for the murder of Finocchiaro, five to ten years
of incarceration for the voluntary manslaughter of Meo, five to ten years of
incarceration for the voluntary manslaughter of Sturgis, five to ten years for
robbery, and, one to two years for each count of abuse of a corpse. The trial
court directed the sentences to run consecutively and imposed no further
penalty on the remaining counts. This appeal followed, and after careful
review, we affirm.
We need not recount the underlying gruesome details of the crimes as
they are not relevant to our disposition of the issues on appeal; however, the
procedural history is pertinent. In the course of an investigation of the
disappearance of three young men in early July of 2017, Bucks County
detectives interviewed Appellant’s cousin and co-defendant, Cosmo DiNardo
(“DiNardo”). Based upon information disclosed in that interview, the
detectives interviewed Appellant to ascertain his involvement in the murders
of Finocchiaro, Meo, and Sturgis. The trial court described that meeting, as
follows:
When Appellant arrived to the police station, he was wearing
a knee brace on his left knee and had two walking canes. He was
not restrained with handcuffs during the interview. The detectives
were in plainclothes.
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At the beginning of the nearly four-hour interview at
approximately 9:15 PM, Appellant was notified of his Miranda
rights, both verbally and in writing. Appellant indicated by initials
and signature on the Miranda warning card that he understood
each of his rights and thereby waived those rights. Appellant was
made aware that the statement was being audio and video
recorded, that he did not have to speak with the detectives at all,
and that he could stop speaking with the detectives at any time.
The detectives’ primary objection was “to get the guns,” or the
murder weapons.
Throughout the interview, Appellant told half-truths, lies,
and attempted to “disassociate himself” from the DiNardo Farm
and the murders which took place there on July 7, 2017. Through
several changes in his story, the detectives became aware of his
deceit. Appellant’s mother, Vanessa Amodei, arrived at the
interview, and Appellant also lied to her, “initially tell[ing] her he
doesn’t know where the guns are, yet within—it took her about 40
minutes to get him to tell her where the guns are.” Eventually, at
his mother’s urging, Appellant agreed to show law enforcement
where he had hidden the murder weapons.
At no point throughout the interview did the detectives
become verbally or physically abusive to Appellant. Appellant
himself stated that “he was not mistreated by Detective Chief
McDonough or Detective Kemmerer.” Notably, Appellant also
never requested that the detectives stop questioning him at any
point throughout the interview.
Following his statement, Appellant led police to his
Aunt Diane’s house on Susquehanna Road in Ambler,
Pennsylvania. At approximately 2:00 AM on July 14, 2017, they
arrived to the heavily wooded lot. There were no lights on at the
property. Appellant, without the use of the walking canes, led the
detectives up the driveway and beyond the front deck of the
house. Appellant immediately pointed to the location of the two
guns, carefully hidden in the ivy and plants on the other side of
the deck from the driveway. Appellant was then taken into
custody.
Trial Court Opinion, 3/31/20, at 9–11 (record references omitted).
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In connection with ongoing guilty plea negotiations, on April 25, 2018,
Appellant gave a statement confessing to his participation in the murders of
Finocchiaro, Meo, and Sturgis. The trial court explained the backdrop of this
videotaped statement, as follows:
On behalf of Appellant, his attorney at the time,
Attorney Wm. Craig Penglase,[2] initiated negotiations for a plea
agreement with Assistant District Attorney (“DA”) Kate Kohler and
First Assistant District Attorney Gregg Shore. After several weeks
of discussions, a plea agreement was reached on Monday, April 23,
2018 between Attorney Penglase and First Assistant DA Shore. DA
Shore wrote down the terms of the agreement on a sticky note,
which he copied, then gave a copy to Attorney Penglase. The note
read:
- 59 year min.
Predicated upon
1) Satisfactory mitigation report to Commonwealth
2) [Appellant] interview (truthful)
3) Commonwealth speaking to victims’ families
The sticky note was not the extent of the plea agreement
conversation, but it was meant to be the context for the next step
in the process. For example, third-degree murder was not included
on the sticky note, but it was verbally discussed and agreed upon.
Finally, the agreement between DA Shore and Attorney Penglase
resulted in a clear decision that “the interview was going to be used
against him,” barring any instance of the victims’ families failing to
agree with the negotiation.
On April 24, 2018, Appellant met with his mother,
Attorney Penglase, and Mitigation Specialist Michael Goodwin in
the DA’s office to discuss the plea deal. Chief of the Bucks County
Detectives, Martin McDonough, along with Detective Coyne,
brought Appellant to the meeting at the DA’s office. Between the
two detectives, at least one was stationed outside the conference
____________________________________________
2 On May 17, 2018, because a conflict arose between Attorney Craig Penglase
(“Attorney Penglase”) and Appellant, Attorney Keith Williams was appointed
to represent Appellant. Appellant ultimately hired present counsel, A. Charles
Peruto, Jr., on October 29, 2018. Trial Court Opinion, 3/31/20, at 14.
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room throughout the day. Detective Chief McDonough testified
that Appellant’s mother was there when he brought Appellant in,
and she was still there when he took Appellant back down to the
sheriff’s office.
As a result of this meeting, the April 25, 2018 proffer was
scheduled. Attorney Penglase communicated to DA Shore that
Appellant had accepted the terms of the Commonwealth’s offer and
wanted to proceed the next day with an interview under the terms
of the agreement. Although no Miranda warnings were explicitly
given on April 25, 2018, Appellant was accompanied by his
counsel, Attorney Penglase, throughout the entirety of the
interview. The first few minutes of the statement consisted of the
detectives confirming that Appellant understood what was going
on, that he was not being forced or coerced into giving the
statement, and that if at any point he wanted to consult with his
attorney, he was free to do so. Notably, the detectives also made
sure to elicit Appellant’s knowledge, understanding of, and
acceptance of the fact that if he were to withdraw his guilty plea,
Appellant's statement on this day could be used against him.
* * *
Appellant then proceeded to confess to murdering
Finocchiaro and being present for, if not assisting with, DiNardo’s
murders of Meo and Sturgis. He further admitted to lying to the
detectives in his first statement, given July 13, 2017. No transcript
of this video was ever created, although the parties did discuss the
possibility of doing so at several points throughout Appellant’s
case.
Trial Court Opinion, 3/31/20, at 11–14 (record references omitted).
On May 1, 2018, Appellant signed a guilty plea colloquy for a scheduled
plea of guilty to third-degree murder to take place on May 16, 2018. However,
on that date, Appellant decided that he no longer wanted to plead guilty and
the matter was continued for a jury trial. Trial commenced on November 6,
2019, at the conclusion of which Appellant was found guilty of numerous
offenses related to the three murders and sentenced as above-described.
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Appellant raises the following issues for review:
1. Did the lower court err when it allowed inadmissible
hearsay testimony at the pretrial hearings on April 15, 2019, with
respect to DA Shore’s testimony as to what was told to him by
[Attorney] Penglase and DA Weintraub?[3]
2. Did the lower court err in denying [Appellant’s] Motion to
Suppress his April 25, 2018 statement based upon Pa.R.E.
410(a)(4) as it was not voluntarily, knowingly, and intelligently
made, and the factual findings are not supported by the record and
the legal conclusion drawn therefrom are incorrect?
3. Did the lower court err when it allowed Michael Goodwin
to testify regarding communications derived from attorney-client
privileged communications at the pretrial hearing, as he was part
of the “Penglase” team?
4. Did the lower court abuse its discretion when it found that
the uncontroverted testimony of Vanessa Amodei, [Appellant’s]
mother, was not credible?
5. Did the lower court err in denying [Appellant’s] Motion to
Suppress his April 25, 2018 statement as it was involuntarily,
unknowingly and unintelligently given in the absence of Miranda
warnings while in the presence of counsel, in violation of his Fifth
Amendment rights since the factual findings are not supported by
the record, and the legal conclusions drawn from those facts are
incorrect?
6. Did the lower court err in denying [Appellant’s] Motion to
Suppress his April 25, 2018 statement based on the best evidence
rule and parole evidence rule?
7. Did the lower court err in denying [Appellant’s] Motion in
Limine to Redact certain portions of the July 13, 2017 statement
since the factual findings are not supported by the record and the
legal conclusions drawn from those facts are incorrect, and as
____________________________________________
3 First Assistant District Attorney Gregg Shore’s (“ADA Shore”) testimony in
fact was elicited during the January 14, 2019 hearing. ADA Shore did not
testify during the April 15, 2019 hearing.
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such, the decision of the [c]ourt and its findings of fact and
conclusions of law of May 13, 2019 was in error?
8. Did the lower court err when it denied defense counsel’s
request to have expert IQ testimony of [Appellant] during trial, and
as such, it was an abuse of discretion?
9. Did the lower court err in overruling defense counsel’s
objection to the Commonwealth’s use of a full-time IT person
during jury selection to investigate potential jurors’ voter
registration, Facebook, criminal and driving records etc., while the
defense had no such ability?
10. Did the lower court abuse its discretion in denying
[Appellant’s] Motion for Change of Venire, and as such, the
decision of the [c]ourt and its findings of fact and conclusions of
law of May 13, 2019 was in error?
11. Did the lower court abuse its discretion in not ruling that
comments made by the Commonwealth to the jury during closing
argument with facts that were not in evidence and which
prejudiced [Appellant] were improper, warranting a curative
instruction?
Appellant’s Brief at 7–8 (re-numbered for ease of disposition).
Appellant challenges the trial court’s denial of the motion to suppress
his April 25, 2018 statement, wherein he confessed to his involvement in the
murders of Finocchiaro, Meo, and Sturgis. Appellant’s Brief at 33. In tandem
arguments, Appellant contends that the trial court erred when it allowed
inadmissible hearsay testimony at the pretrial hearing with respect to ADA
Shore’s testimony, permitted Mitigation Specialist Michael Goodwin
(“Mr. Goodwin”) to testify to purported privileged communications, and its
rejection of Vanessa Amodei’s (“Ms. Amodei”) testimony on credibility
grounds. Id. at 33, 49, 63, 65, and 71.
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The trial court held hearings on the motion to suppress on January 14,
2019, and April 15–16, 2019, which it summarized as follows:
[T]he April 25, 2018 statement began with the detective
asking Appellant: “You understand, as part of this interview, that
if you decide to withdraw your guilty plea, or you file an appeal,
this interview would be used against you?” Appellant responded
that he did understand.
Defense counsel argued that it is not possible to withdraw a
guilty plea that has not formally been entered. Instead, defense
counsel insisted that this [c]ourt must rely solely on the statement
within the video, and thus the Parole Evidence Rule and Best
Evidence Rule prohibited any consideration of the context
surrounding the decision to give the statement. Attorney Peruto
claimed no evidence outside of the agreement is admissible.
Whereas the Commonwealth noted that what the agreement was
and when it was reached and when it was communicated to the
defendant is, of course, very relevant and admissible for Your
Honor to determine whether or not to suppress this statement
pursuant to Rule of Evidence 410.
Over a continuing objection from Attorney Peruto, this
[c]ourt heard testimony from DA Shore regarding the context of
the plea negotiation and the April 25 statement. DA Shore
confirmed that Attorney Penglase requested the April 25 meeting
after communicating the plea offer to Appellant, and Appellant’s
subsequent decision to accept the offer and proceed with the
interview.
The Commonwealth wanted to call Attorney Penglase to
confirm this testimony. However . . . it was not possible to call
Attorney Penglase on this date. Instead, the parties discussed
whether prior defense team mitigation expert, Michael Goodwin,
should be permitted to testify regarding the April 24, 2018
meeting with Appellant and his mother. The only issue for which
this [c]ourt would hear the testimony was to ascertain (1) whether
Appellant’s mother was present for the meeting, thus negating
any attorney-client privilege, and (2) exactly what was conveyed
to Appellant in terms of the details of the plea deal. The issue was
deferred.
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Trial Court Opinion, 3/31/20, at 17–18 (record references and internal
quotation marks omitted).
ADA Shore’s Testimony
We deem it prudent to first resolve the question of whether ADA Shore’s
January 14, 2019 testimony constituted inadmissible hearsay. If we resolve
this issue in Appellant’s favor, we cannot consider that testimony in our review
of the specifics of Appellant’s plea negotiations and in our analysis of whether
the April 25, 2018 statement should have been suppressed. Rather, our
assessment would be limited to the contents of the videotaped statement.
Appellant lodged two objections to ADA Shore’s testimony at the
January 14, 2019 pretrial hearing during the following exchange:
Q: And did [Attorney] Penglase tell you what he would do with the
offer that you extended him on April 23, 2018?
A: He said that he would go to his client that evening and present
it to him.
Q: Did you hear from [Attorney] Penglase later that day?
A: I did.
Q: And what, if anything, did he tell you?
[Defense counsel]: Objection.
The Court: Basis?
[Defense counsel]: Hearsay.
The Court: How does it come in?
[Prosecutor]: I'm sorry, Your Honor?
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The Court: Ms. Kohler, how does this come in?
[Prosecutor]: This comes in basically because, well, first of all,
hearsay is admissible at a suppression hearing. This is a pretrial
hearing. And Your Honor needs to be provided a full context of
the discussions. But secondly, [Attorney] Penglase’s statements
to DA Shore essentially put in forth a—or put forth in motion a
series of events that occurred afterwards.
The Court: The objection is overruled. Go ahead.
Q: What did [Attorney] Penglase tell you later that day?
A: He asked if we could set up a meeting for the next day in order
to move things along. And he requested that that meeting occur
at the District Attorney’s Office.
And he requested that we make a room available to the defense
for them to have a discussion with [Appellant], with [Appellant’s]
mother, with Attorney Penglase, with Mr. Goodwin, about where
we were at and the negotiation that [Appellant] was to receive.
Q: Did he tell you anything about whether or not he had
communicated your offer to the Appellant?
[Defense counsel]: Objection.
The Court: Overruled.
A: He said he did.
N.T. (Pretrial Hearing), 1/14/19, at 116–118.
Appellant, however, did not object to ADA Shore’s recitation of his
conversation with Attorney Penglase and [Bucks County District Attorney
Matthew] Weintraub (“DA Weintraub”) on May 16, 2018, concerning
Appellant’s subsequent decision not to plead guilty:
Q. And during that time on May 16th, did you remind [defense
counsel] of the agreement regarding the statement?
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A. [Defense counsel] both indicated their distress and the fact that
there was an agreement that [Appellant] was backpedaling on.
* * *
And [DA] Weintraub joined us and at some time went back with [defense
counsel and Appellant] to meet with [Appellant] in the back of the holding
cell area where [DA] Weintraub represented to [Appellant] that if the
plea is off we would be seeking the death penalty. And [Appellant]
acknowledged to [DA] Weintraub that he knew we could use the
statement against him.
N.T. (Pretrial Hearing), 1/14/19, at 124–125.
The trial court explained why ADA Shore’s testimony was admissible:
Hearsay is an “out of court statement offered to prove the
truth of the matter asserted.” Hedding v. Steele, 426 A.2d 349
(Pa. 1987); Pa.R.E. 801(c). An out-of-court declaration
containing another out-of-court declaration is double hearsay.
Commonwealth v. Laich, 777 A.2d 1057, 1059, (Pa. 2001). In
order for double hearsay to be admissible, the reliability and
trustworthiness of each declarant must be independently
established. Id. This requirement is satisfied when each
statement comes within an exception to the hearsay rule. Id.
However, hearsay is admissible in a suppression hearing.
Commonwealth v. Bunch, 477 A.2d 1372, 1376 (Pa. Super. Ct.
1984) (trial court properly admitted hearsay testimony at
suppression hearing, “[s]ince a determination of probable cause
may properly be based on hearsay”); Commonwealth v. Seltzer,
437 A.2d 988, 991 (Pa. Super. Ct. 1981).
First, DA Shore testified at the pre-trial hearing on
January 14, 2019. The purpose of the testimony at issue was to
establish that, to DA Shore’s knowledge, the plea offer he
presented to Attorney Penglase was going to be communicated to
Appellant. This [c]ourt properly allowed this testimony because
(1) hearsay is permitted at a suppression hearing, and (2)
Attorney Penglase’s statements to DA Shore put into motion a
series of events that led to the April 25, 2018 interview. After the
April 24 meeting, Attorney Penglase expressed to DA Shore that
Appellant had accepted the terms of the Commonwealth’s offer
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and wanted to proceed the next day with an interview under the
terms of the agreement.
Therefore, these statements, whether or not they were
hearsay or double hearsay, were necessary to provide this [c]ourt
with the full context of the discussions surrounding the plea deal,
which in turn allowed this [c]ourt to rule on the admissibility of
the April 25 interview. Appellant presented no evidence
whatsoever that would move the “heavy burden” to show that the
trial court has abused its discretion in considering this hearsay
testimony at the suppression hearing. Commonwealth v.
Christine, 125 A.3d 394, 398 (Pa. 2015).
Trial Court Opinion, 3/31/20, at 52–53 (record references omitted).
“An appellate court’s standard of review of a trial court’s evidentiary
rulings, including rulings on the admission of hearsay . . . is abuse of
discretion.” Commonwealth v. Walter, 93 A.3d 442, 449 (Pa. 2014). We
will not disturb an evidentiary ruling unless “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 evidence of record.”
Commonwealth v. Fitzpatrick, 204 A.3d 527, 531 (Pa. Super. 2019)
(quoting Commonwealth v. Cooper, 941 A.2d 655, 667 (Pa. 2007)).
On appeal, Appellant asserts that hearsay testimony is admissible in a
suppression hearing only to determine probable cause. He thus contends that
ADA Shore’s testimony as to what he was told by DA Weintraub and Attorney
Penglase with regard to Appellant’s acknowledgement that his April 25, 2018
statement would be used against him was impermissible double hearsay.
Appellant’s Brief at 37.
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While cases holding that hearsay is admissible in a suppression hearing
predominately concern evidentiary issues related to proving probable cause,
see e.g., Commonwealth v. Bunch, 477 A.2d 1372, 1376 (Pa. Super. 1984)
(a determination of probable cause at a suppression hearing may properly be
based on hearsay); Commonwealth v. Jenkins, 431 A.2d 1023, 1025 (Pa.
Super. 1981) (hearsay testimony generally admissible at a suppression hearing
to prove probable cause); Commonwealth v. Seltzer, 437 A.2d 988, 991
(Pa. Super. 1981) (hearsay testimony admissible to show probable cause),
none of the case law suggests that hearsay testimony is admissible only to
prove probable cause, including Commonwealth v. Barrett, 335 A.2d 476,
480 (Pa. Super 1975), cited by Appellant to support his argument. Indeed, in
Bunch, the hearsay objection at the suppression hearing concerned the
testimony of a detective who arrived at the crime scene after the four suspects
were already in custody and was not relevant to a probable cause
determination. Bunch, 477 A.2d at 1376. In holding that the trial court
correctly concluded that the detective’s testimony was admissible in Bunch,
we observed that “[s]ince a determination of probable cause may properly be
based on hearsay, the trial court did not err in admitting this testimony.” Id.
(citation omitted). Thus, a reasonable interpretation of Bunch is that hearsay
is admissible at suppression hearings for reasons other than to establish
probable cause.
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Moreover, the trial court also permitted the testimony because Attorney
Penglase’s statements to ADA Shore “put into motion a series of events that
led to the April 25, 2018 interview.” Trial Court Opinion, 3/31/20, at 53. “[A]n
out-of-court statement offered to explain a course of conduct is not hearsay.”
Commonwealth v. Dent, 837 A.2d 571, 577 (Pa. Super. 2003) (quoting
Commonwealth v. Cruz, 414 A.2d 1032, 1035 (Pa. 1980)).
Herein, the objected-to testimony did not include any substantive
information concerning conversations between Appellant and
Attorney Penglase. ADA Shore testified that after Attorney Penglase presented
the plea deal to Appellant, he requested that ADA Shore set up a meeting with
Appellant, Appellant’s mother, and defense counsel to discuss the plea deal.
ADA Shore further testified that Attorney Penglase informed him that he had
communicated the plea deal to Appellant. N.T. (Pretrial Hearing), 1/14/19, at
116–118. Thus, this portion of ADA Shore’s testimony merely demonstrated
that Attorney Penglase took the plea offer to Appellant and wanted to arrange
a meeting, i.e., ADA Shore described the course of conduct that led to
Appellant’s April 25, 2018 videotaped statement. At this juncture ADA Shore
did not testify as to the specifics of the deal communicated to Appellant or
whether Appellant was aware that his statement could be used against him at
trial. When later in his testimony, ADA Shore stated that after Appellant had
decided not to plead guilty, Appellant acknowledged that he knew that his
statement could be used against him, no hearsay objection was lodged. Thus,
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Appellant’s hearsay argument as to this testimony is waived.4 With respect to
evidentiary rulings, “[e]rror may not be predicated upon a ruling that admits
evidence unless . . . a timely objection . . . appears of record, stating the
specific ground of objection if the specific ground was not apparent from the
context.” Commonwealth v. Parker, 104 A.3d 17, 28 (Pa. Super. 2014)
(quoting Pa.R.Evid. 103(a)(1)). Therefore, the trial court did not abuse its
discretion in admitting ADA Shore’s testimony and we may review it when
determining the merits of Appellant’s motion to suppress his April 25, 2018
videotaped statement.
Motion to Suppress
In seeking to preclude consideration of his April 25, 2018 statement,
Appellant posited three reasons why the statement should be suppressed: it
was given in the context of ongoing plea bargain negotiations and, therefore,
inadmissible under Pa.R.E. 410(a)(4); the statement was given in the absence
of his Miranda warnings;5 and the statement was admitted in violation of the
best evidence and parol evidence rules. Appellant’s Brief at 33, 42, and 52.
____________________________________________
4 During ADA Shore’s testimony, the Commonwealth sought to introduce a
copy of the sticky note with the basic terms of the plea offer into evidence.
Appellant’s counsel stated that he had “no objection . . . provided that I have
a continuing objection to all of it.” N.T. (Pretrial Hearing), 1/14/19, at 113.
However, that continuing objection was based on counsel’s position that any
testimony regarding the terms of the negotiation violated the parol evidence
and best evidence rules; it was not a hearsay objection. Id. at 105–107.
5 Miranda v. Arizona, 384 U.S. 436 (1966).
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Pa.R.E. 410(a)(4)
Appellant first contends that introduction of his statement at trial was in
violation of Pennsylvania Rule of Evidence 410(a)(4). Rule 410 provides, in
relevant part:
(a) Prohibited Uses. In a civil or criminal case, evidence
of the following is not admissible against the defendant who made
the plea or participated in the plea discussions:
* * *
(4) a statement made during plea discussions with an
attorney for the prosecuting authority if the discussions did not
result in a guilty plea or they resulted in a later withdrawn guilty
plea.
Pa.R.E. 410(a)(4).
Ordinarily, any statement made by a defendant during plea negotiations
is inadmissible at trial during the Commonwealth’s case-in-chief.
Commonwealth v. Widmer, 120 A.3d 1023, 1026 (Pa. Super. 2015).
However, we have recognized that during the plea-bargaining process, “a
defendant is permitted to waive valuable rights in exchange for important
concessions by the Commonwealth when the defendant is facing a slim
possibility of acquittal.” Commonwealth v. Byrne, 833 A.2d 729, 735 (Pa.
Super. 2003) (citation omitted). Therefore, a defendant may waive his right
to assert that a statement is inadmissible under Rule 410 as long as that waiver
is knowing, voluntary, and intelligent. Widmer, 120 A.3d at 1027 (citing
Byrne, 833 A.2d at 736).
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The trial court found that Appellant waived his rights under Pa.R.E.
410(a)(4) based on the following:
In the instant case, the Commonwealth had extended a plea
offer to Appellant. Appellant accepted the offer as evidenced by
his decision to provide his voluntary statement on April 25, 2018.
Additionally, Appellant signed a guilty plea colloquy on May 1,
2018. Credible evidence established that the Commonwealth
offered Appellant the opportunity to plead guilty to third-degree
murder, rather than first-or second-degree murder, thereby
allowing Appellant to avoid the potential sentences of death or of
life without parole. Appellant was offered a minimum of fifty-nine
(59) years for his role in the murders of three young men and the
subsequent cover-up of those murders. By accepting this offer,
Appellant did not need to worry that he might receive the death
penalty.
In order to receive the benefit of the negotiation, the
Commonwealth required: (1) Appellant provide a truthful
interview regarding his participation and role in these cases and
(2) that the victims’ families agree with the negotiation. Similar
to Widmer, the Commonwealth predicated its plea bargain with
Appellant upon Appellant waiving his rights pursuant to Rule 410.
Like the DA in Widmer, DA Shore testified credibly that Appellant’s
attorney had been informed of the terms of the plea deal.
Furthermore, DA Shore testified that the Commonwealth was
going to use the statement regardless of whether Appellant
entered into the plea, withdrew it, or appealed it. This testimony
was corroborated by the fact that defense counsel’s only concern
regarding the use of the statement was whether the
Commonwealth could use Appellant’s statement in the event the
Commonwealth withdrew the offer if the victims’ families did not
agree with it. This [c]ourt found no reason to believe the attorney
did not relay this information to Appellant, especially after viewing
the totality of the evidence.
What the evidence showed is that Appellant consulted with
his attorney, his mother, and the mitigation specialist on April 24,
2018. He agreed to accept the terms of the offer after discussing
it with his counsel. In fact, it was only after counsel and Appellant
had significant time to discuss the plea deal that counsel informed
the Commonwealth to set up the interview for the next day.
Notably, Appellant presented no evidence to suggest that his prior
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defense counsel misrepresented the terms of the
Commonwealth's offer. Rather, Appellant withdrew any such
allegation.
Appellant asked his attorney to arrange this interview date
and voluntarily provided his statement on April 25, 2018. By
accepting the terms of the plea deal and agreeing to provide a
truthful statement, Appellant also agreed to the Commonwealth’s
condition that the statement could be used against him should he
decide not to plead guilty.
While this [c]ourt found the evidence credible that the
defense attorney was aware of the terms of the deal and conveyed
this to Appellant, this [c]ourt especially found the recorded
statement from April 25, 2018 enlightening. The terms of the plea
deal were laid out broadly by the Detective in which he stated
[Appellant] was there because he was agreeing to plead guilty to
third degree murder and stated the sentence was an ongoing
discussion between Appellant, his attorney, and the
Commonwealth. The detective further discussed that Appellant
agreed to provide a truthful statement, including additional
information regarding the murders.
During the pretrial motion hearing, Detective Chief
McDonough admitted that he “was not entirely versed on the
specifics of what [the offer] was.” However, he credibly testified
that he understood the offer’s terms to include “that whatever he
told us in the room would be used against him in any future
proceeding.” Detective Chief McDonough admitted that he did not
communicate that exact phrase to [Appellant].
However, this [c]ourt was able to view the eighty minute
April 25, 2018 recorded video interview in its entirety. This [c]ourt
found that Appellant’s actions, demeanor, and statement in the
video were relevant to show his state of mind, and that he knew
the rights he was waiving. The following conversation occurred
between the detective and Appellant:
Detective: You understand, as part of this interview,
that if you decide to withdraw your guilty plea, or you
file an appeal, this interview would be used against
you?
Appellant: Okay.
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Detective: You understand that?
Appellant: Correct.
Detective: Is anyone forcing you to come here to do
this today?
Appellant: No.
Detective: And you’ve spoken to [Attorney] Penglase
as to why you’re here to do this today?
Appellant: Correct.
Detective: Before we go into the interview, is there
anything you want to add or any questions?
Appellant: No, sir.
Detective: If at any time you want some private time
with [Attorney] Penglase, you can go back into the
room that is not audio recorded.
Appellant: Okay.
Detective: Need any water or a break, just let us know.
Appellant: Okay.
This [c]ourt found that Appellant appeared calm, confident, and
comfortable as he discussed the details of the murders. Appellant
did not express any confusion or concern. Furthermore, DA Shore
testified that Appellant never appeared in distress or confused
about what was occurring.
While Appellant may not have known the specifics of the
evidentiary rule he was waiving, he clearly knew his statement
would be used against him. Appellant’s response makes it clear
that he understood that his statement would be used against him
and was clearly not surprised by the detective relaying this
information.
Further proof of Appellant’s understanding that his statement
would be used against him is the conversation that occurred
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between DA Shore and Appellant in the presence of Appellant’s
attorney. DA Shore credibly testified that on the day of the
intended plea, DA Weintraub spoke with Appellant in the presence
of his counsel about Appellant’s decision to not plead guilty. DA
Weintraub specifically reminded Appellant that due to this decision
to not plead guilty, that the Commonwealth would not withdraw
their notice to seek the death penalty and would use his statement
against him. At that time, DA Shore testified that Appellant
acknowledged to DA Weintraub that by not pleading guilty, his
statement would be introduced at trial.
After conducting the pretrial hearing on January 14, 2019
and the supplemental hearings on April 15 and 16, 2019; and
reviewing the evidence and briefs presented, this [c]ourt denied
Appellant’s Motion to Suppress his April 25, 2018 statement. The
totality of the circumstances surrounding the plea negotiations in
this case established that Appellant knowingly and voluntarily
waived his rights as part of the plea agreement he reached with
the Commonwealth. While Appellant may not have known the
specifics of [Pa.R.E.] 410, his demeanor, actions, and statements
demonstrate that he clearly knew his statement would be used
against him. This [c]ourt refused to entertain Appellant’s game of
semantics that he knew the statement could be used against him
if he withdrew his plea, but not if he did not go through with his
plea.
Appellant certainly had a right to withdraw from the plea
agreement and proceed to trial, but the Commonwealth was also
entitled to the benefit of the bargain they negotiated and abided
by, which included the right to use Appellant’s April 25, 2018
statement against him at trial. The Commonwealth met its burden
of proof in establishing that it was more than likely that Appellant
understood his statement would be used against him if he did not
plead guilty. Accordingly, Appellant’s motion to suppress his
statement on this basis was properly denied.
Trial Court Opinion, 3/31/20, at 32–36 (record references omitted).
Our standard of review in addressing a challenge to a trial court’s denial
of a motion to suppress is “limited to determining whether the factual findings
are supported by the record and whether the legal conclusions drawn from
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those facts are correct.” Commonwealth v. Bell, 871 A.2d 267, 271 (Pa.
Super. 2005) (citations omitted). If the prosecution prevailed in the
suppression court, we consider only the evidence of the prosecution and so
much of the evidence for the defense as remains uncontradicted when read in
the context of the record as a whole. Id. “Where the record supports the
factual findings of the suppression court, we are bound by those facts and
may reverse only if the legal conclusions drawn from them are in error.” Id.
In addition, “[i]t is within the suppression court’s sole province as factfinder
to pass on the credibility of witnesses and the weight to be given their
testimony.” Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super.
2003) (citation omitted). The suppression court is also entitled “to believe all,
part or none of the evidence presented.” Commonwealth v. Benton, 655
A.2d 1030, 1032 (Pa. Super. 1995). Finally, at a suppression hearing, the
Commonwealth has the burden of “establish[ing] by a preponderance of the
evidence that the evidence was properly obtained.” Commonwealth v.
Culp, 548 A.2d 578, 581 (Pa. Super. 1988).
On appeal, Appellant asserts that the trial court erred when it
determined that Appellant waived his rights under Pa.R.E. 410(a)(4) because
the waiver was not knowing, voluntary, and intelligent. Appellant’s Brief at
35. Appellant specifically avers that (1) the court misapplied a totality of the
circumstances standard to determine whether Appellant waived his right
under Rule 410(a)(4), rather than considering Appellant’s subjective belief
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regarding the terms of the plea; (2) the court relied on inadmissible hearsay
evidence; (3) the court improperly considered privileged communications
between Appellant and his counsel; and, (4) the court erred in not crediting
the testimony of Appellant’s mother, Ms. Amodei, regarding the terms of the
agreement. Id. at 35–42.
Appellant first claims that the trial court should have applied a subjective
standard, rather than a totality of the circumstances review, when determining
whether Appellant believed the prosecution could introduce his statement at
trial if he failed to plead guilty. In Commonwealth v. Burno, 154 A.3d 764
(Pa. 2017), the Pennsylvania Supreme Court, in considering whether a
statement was inadmissible under Rule 410, held that “[t]he governing
consideration regarding the admissibility of a confession is voluntariness,
which we determine based upon the totality of the circumstances.” Id. at
790. This holding is consistent with our jurisprudence explaining that issues
of whether a waiver of Miranda rights was knowing, voluntary, and intelligent
require an examination of the totality of the circumstances. See, e.g.,
Commonwealth v. Smith, 210 A.3d 1050, 1058 (Pa. Super. 2019) (whether
waiver of Miranda rights was knowing, voluntary, and intelligent depends
upon the totality of circumstances surrounding the interrogation);
Commonwealth v. Harrell, 65 A.3d 420, 433–434 (Pa. Super. 2013) (the
test for determining the voluntariness of a confession and whether an accused
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knowingly waived his rights looks to the totality of the circumstances
surrounding the giving of the confession).
Moreover, a determination of exactly which promises constitute the
plea bargain must be based upon the totality of the surrounding circumstances
and involves a case-by-case adjudication. Commonwealth v. Farabaugh,
136 A.3d 995, 1001–1002 (Pa. Super. 2016) (quotation omitted). It is the
court’s responsibility to determine whether an alleged term is part of the
parties’ plea agreement. Commonwealth v. Martinez, 147 A.3d 517, 533
(Pa. 2016). While an accused’s personal belief is relevant to ascertain if he
exhibited an actual subjective expectation to negotiate a plea at the time of
the subject discussion, the reasonableness of that subjective understanding
depends upon the totality of the objective circumstances. Commonwealth
v. Calloway, 459 A.2d 795, 800–801 (Pa. Super. 1978) (quotation omitted).
Thus, it was not error for the trial court to examine the totality of the
circumstances to determine whether Appellant’s waiver of his Pa.R.E. 410
rights was knowing, voluntary, and intelligent.
Mitigation Specialist Goodwin’s Testimony
We addressed Appellant’s next claim that the trial court relied upon ADA
Shore’s impermissible hearsay testimony supra, and resolved that issue in the
Commonwealth’s favor. Thus, we turn to whether the trial court improperly
considered testimony by a member of Appellant’s defense team, Mr. Goodwin,
at the April 15, 2019 suppression hearing. Appellant maintains that
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Mr. Goodwin’s testimony was protected by the attorney-client privilege and
should not have been received. A related issue is whether the trial court erred
in its credibility determination of Ms. Amodei concerning her recollection of
what Attorney Penglase conveyed to Appellant regarding the terms of the plea
deal prior to Appellant’s April 25, 2018 videotaped statement.
The trial court found:
Relevant to the appeal at bar, Mitigation Specialist Goodwin
was asked to testify on the very limited issue of whether (1)
Appellant’s mother was present for the conversation on April 24,
2018 and (2) whether, while Appellant’s mother was present, the
plea deal was explained to and discussed with Appellant. Neither
of these discrete areas of questioning amounted to an improper
breach of attorney-client privilege.
First, this [c]ourt heard testimony from Detective Chief
McDonough and DA Shore, both of whom testified that Appellant’s
mother was present for the meeting on April 24, 2018.
Furthermore, both testified to the fact that the purpose of the
April 24, 2018 meeting was to discuss the plea deal. However,
based on allegations in one of Appellant’s reply memoranda that
his mother either left early or arrived late or was not present for
all of the meeting, further testimony was required. As it was the
Commonwealth’s burden to establish attorney-client privilege was
waived by the presence of a third-party, this [c]ourt agreed that
the additional testimony was necessary to determine whether the
privilege was waived.
Mitigation Specialist Goodwin testified that Appellant’s
mother was present that day, and that the plea deal was explained
to both Appellant and his mother. Based on the cumulative
testimony of Detective Chief McDonough, DA Shore, and
Mitigation Specialist Goodwin, this [c]ourt concluded that
Appellant’s mother was present at the April 24, 2018 meeting. In
light of the presence of a third party, Appellant’s mother, this
[c]ourt found that no confidentiality existed and, therefore, no
breach of attorney-client privilege occurred.
Trial Court Opinion, 3/31/20, at 54–55 (record references omitted).
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“In a criminal proceeding counsel shall not be competent or permitted
to testify to confidential communications made to him by his client, nor shall
the client be compelled to disclose the same, unless in either case this
privilege is waived upon the trial by the client.” 42 Pa.C.S. § 5916. However,
if an accused made his communications to his attorney in the presence of
other individuals, the communications would not be privileged.
Commonwealth v. Spanier, 132 A.3d 481, 495–496 (Pa. Super. 2016).
Appellant contends that Ms. Amodei’s presence at the meeting between
him and members of the defense team did not vitiate the attorney-client
privilege because Ms. Amodei “was acting as an agent of [Attorney] Penglase
to facilitate representation of [Appellant]” and “her presence was essential to
provide legal advice on the plea offer, since [Appellant] has a compromised
intellect . . . and relied heavily on the advice . . . of his mother.” Appellant’s
Brief at 38–39 (footnote omitted). Appellant further asserts that the
Commonwealth failed to establish that Amodei was present throughout the
entire meeting. Id. at 39.
“An issue concerning whether a communication is protected by the
attorney-client privilege presents a question of law.” Spanier, 132 A.3d at
491 (quoting In re Thirty–Third Statewide Investigating Grand Jury, 86
A.3d 204, 215 (Pa. 2014)). Therefore, our standard of review is de novo.
Spanier, 132 A.3d at 491.
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Our review of the record reveals that Ms. Amodei was present during
the April 24, 2018 discussion Appellant conducted with his counsel regarding
the Commonwealth’s plea offer. Detective Chief McDonough testified that he
escorted Appellant to the District Attorney’s Office to attend the meeting and
observed Ms. Amodei in the room with counsel and Appellant. N.T. (Pretrial
Hearing), 1/14/19, at 95-96. Although he was not present during the
substantive conversation between Appellant and defense counsel, ADA Shore
also recalled seeing Ms. Amodei in the meeting room. Id. at 118. Notably,
at the hearing, after the Commonwealth clarified that its questions concerning
the April 24, 2018 meeting were limited to discussions occurring when
Ms. Amodei was in attendance, Mr. Goodwin testified that Ms. Amodei was
present when defense counsel discussed the terms of the Commonwealth’s
plea offer with Appellant. N.T. (Pretrial Hearing), 4/15/19, at 15-17.
Furthermore, although Ms. Amodei maintained that she arrived late to the
meeting after counsel and Appellant were already gathered, there was no
evidence that any essential discussion concerning the plea occurred outside
her. Ms. Amodei admitted that she attended the meeting with Appellant and
counsel and that they discussed the Commonwealth’s plea offer while she was
present. Id. at 5–6. Accordingly, the trial court correctly found that the
record showed that Ms. Amodei was present for the substantive discussion at
the April 24, 2018 meeting.
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Appellant nonetheless claims that even if Ms. Amodei was present during
the April 24, 2018 meeting, her presence did not waive the attorney-client
privilege because she was acting as an agent of defense counsel. Appellant
offers no legal support for this position. While the attorney-client privilege
extends to an agent of an attorney who assists in the provision of legal advice
to the client, see Commonwealth v. Noll, 662 A.2d 1123, 1126 (Pa. Super.
1995), Ms. Amodei’s presence during the discussions to support and advise
Appellant did not morph Ms. Amodei into an agent of defense counsel.
Ms. Amodei was neither an attorney nor employed by the defense team.
Appellant’s position advocating such a tenuous claim cannot is rejected.
Ms. Amodei’s credibility
Appellant’s related argument is that the trial court abused its discretion
because its credibility determination of Ms. Amodei was not supported by the
record. The trial court assessed Ms. Amodei’s credibility, as follows:
In the instant case, Ms. Amodei’s testimony was far from
“uncontroverted,” as Appellant claims. DA Shore, Detective Chief
McDonough, and Mitigation Specialist Goodwin all testified,
contrary to Ms. Amodei, that she was present for the meeting on
April 24, 2018 wherein the plea deal was discussed among
Attorney Penglase, Mitigation Specialist Goodwin, Appellant, and
Ms. Amodei.
Furthermore, both DA Shore and Detective Chief
McDonough also testified that everyone’s understanding was
always that the statement could be used against Appellant if he
did not follow through with the plea. The video of the interview
clearly demonstrated that Appellant understood that the
statement would be used against him, which he affirmed at the
beginning of the interview. When asked if he had consulted with
counsel regarding this specifically, Appellant again responded in
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the affirmative. The only way this statement would not be used
against him, were if the victims’ families were not in agreement
with the plea negotiation.
Ms. Amodei also testified regarding the conversations that
took place on April 24, 2018. Ms. Amodei recalled that they were
there to discuss the plea agreement. Ms. Amodei claimed that
she came into the meeting late, but that she was still present
during the discussion of a potential plea deal. She recalled that
Appellant needed to make a truthful statement, that the term 59
years was used, and that Appellant would need to accept
responsibility without saying he was forced by DiNardo.
Contrary to the testimony of all the other witnesses,
Ms. Amodei next testified that if Appellant failed to provide a
statement, there would be no deal, “and that if he made the
statement and decided not to take a deal, if one was offered, that
it wouldn’t be used for anything else.” In the May 13, 2019
Findings of Facts and Conclusions of Law, this [c]ourt found that
the testimony of Ms. Amodei is entirely inconsistent with the
other, credible testimony presented in this case. Ms. Amodei’s
testimony regarding the use of the statement was directly
contradicted by DA Shore’s testimony that he and Attorney
Penglase specifically discussed that the statement would be used
against him. Appellant acknowledged this in the presence of his
counsel during the April 25, 2018 interview.
Therefore, to the extent that Ms. Amodei’s testimony was
inconsistent with and contradicted by the other credible evidence
in this case, this [c]ourt did not credit her testimony. Being in the
best position to determine the credibility of the witnesses, the
appellate court should not overrule this [c]ourt’s findings at the
pre-trial hearings.
Trial Court Opinion, 3/31/20, at 55–56 (record references omitted).
“It is within the suppression court’s sole province as factfinder to pass
on the credibility of witnesses and the weight to be given to their testimony.
The suppression court is free to believe all, some or none of the evidence
presented at the suppression hearing.” Commonwealth v. Byrd, 185 A.3d
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1015, 1019 (Pa. Super. 2018) (quoting Elmobdy, 823 A.2d at 183). “Where
the testimony and other evidence supports the suppression court’s findings of
fact, we are bound by them and may reverse only if the court erred in reaching
its legal conclusions based upon the facts.” Commonwealth v. Fudge, 213
A.3d 321, 326 (Pa. Super. 2019) (internal quotation and quotation marks
omitted). “This Court will not disturb a suppression court’s credibility
determination absent a clear and manifest error.” Id.
On appeal, Appellant contests the trial court’s characterization of
Ms. Amodei’s testimony as contradicted by other competent credible evidence
because the other evidence referred to by the trial court was ADA Shore’s
alleged inadmissible hearsay testimony. Appellant’s Brief at 41. Appellant
also asserts that the trial court did not adequately explain why it discounted
Ms. Amodei’s testimony regarding her recollection of the April 24, 2018
meeting.
Neither position has merit. First, we have already decided that ADA
Shore’s testimony was properly admitted. Second, the trial court explained
its credibility determination in its May 13, 2019 Findings of Fact and
Conclusions of Law, to wit:
The [c]ourt finds that the testimony provided by Ms. Amodei is
not consistent with the other credible evidence presented in the
case. Ms. Amodei’s testimony regarding the statement’s use is
contradicted by Mr. Shore’s testimony that he and Mr. Penglase
specifically discussed that it would be used against him
[Appellant] acknowledged this in the presence of his counsel,
during the recorded interview that took place the following day.
To the extent Ms. Amodei’s testimony is inconsistent with and
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contradicted by the other credible evidence in this case, the
[c]ourt does not credit her testimony.
Findings of Fact and Conclusions of Law, 5/13/19, at 5 (record reference
omitted). The trial court expanded upon this rationale in its Pa.R.A.P. 1925(a)
opinion as recited above. As we do not discern a clear and manifest error, we
will not disturb the trial court’s credibility determination of the suppression
witness. Fudge, 213 A.3d at 326.
In summation, the trial court properly concluded, under a totality of the
circumstances, that Appellant waived his rights under Pa.R.E. 410(a)(4) as
part of his plea negotiations with the Commonwealth and agreed and
understood that his recorded confession given on April 25, 2018 would be
used against him at trial if Appellant withdrew from the plea agreement. The
trial court’s findings were supported by record evidence and the applicable law
and it did not err in denying Appellant’s motion to suppress his statement
under Pa.R.E. 410(a)(4).
Miranda Rights
Appellant urges in his fifth issue that his April 25, 2018 statement should
have been suppressed because it was “involuntarily, unknowingly, and
unintelligently and was given in the absence of Miranda warnings . . . .”
Appellant’s Brief at 42. The trial court explained why Miranda was not
violated in the context of Appellant’s April 25, 2018 videotaped statement:
At issue in this appeal is whether Miranda warnings need to
be provided to a defendant already incarcerated, voluntarily
seeking the interview with the police, and who has counsel present
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for the entire duration of the interview. This is an issue of first
impression for this Commonwealth. However, the Massachusetts
Supreme Court has addressed a similar issue. See Commonwealth
v. Simon, 923 N.E.2d 58 (Ma. 2010).
In Simon, the defendant was aware the police wanted to
speak to him regarding a shooting. Id. at 66. The defendant had
an opportunity to consult with counsel before the police questioned
him. Id. It was determined that at the time he was questioned, it
was a custodial interrogation but Miranda warnings were not
needed because “the presence of an attorney during questioning,
when combined with the opportunity to consult with the attorney
beforehand, substitutes adequately for Miranda warnings.” Simon
at 67. This [c]ourt finds this reasoning persuasive and consistent
with the holding of Miranda itself.
Although [Appellant] was in custody and not provided
Miranda warnings prior to the April 25, 2018 interview, no such
warnings were required. Appellant was represented by counsel at
the time he volunteered to talk to the Bucks County Detectives,
and his counsel was physically present the entire time the police
were with Appellant. The presence of counsel next to Appellant
throughout the duration of the interview served to adequately
protect the Appellant’s right against self-incrimination.
Appellant was informed that he could consult with his
attorney as needed throughout the interview and that a private
room would be provided to him. However, the most significant
fact as to why this statement does not need to be suppressed is
that Appellant agreed to give this interview pursuant to a plea
agreement. He had ample opportunity to discuss the interview
and its implications when he met with his attorney on April 24,
2018. After the lengthy conversation with his attorney on April
24, 2018, Appellant had a full day to contemplate his choice. This
[c]ourt found that Appellant knew what he was doing when he
requested the meeting with the detectives on April 25, 2018.
The facts in this case are not the type of situation the
Miranda Court contemplated when it required police to inform a
suspect of his rights prior to a custodial interrogation. On the
contrary, Miranda determined that the presence of counsel during
a custodial interrogation would adequately protect a defendant’s
rights. Miranda, [384] U.S. at 466. Additionally, it is important
to emphasize that Appellant volunteered his statement on April
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25, 2018 as a condition to the plea agreement that would save
him from a potential sentence of death. As the Pennsylvania
Supreme Court has determined, Miranda is not necessary when
statements are provided voluntarily. [Commonwealth v. Baez,
720 A.2d 711, 720 (Pa. 1998)].
Trial Court Opinion, 3/31/30, at 37–39.
The trial court also concluded that Appellant’s confession was voluntary:
Furthermore, when this [c]ourt viewed the totality of the
circumstances, there was no evidence to suggest that Appellant’s
statement was made involuntarily, unknowingly, or
unintelligently. Again, Appellant had agreed to provide the
interview after he consulted with his counsel and mother in order
to secure the plea deal. At the beginning of the interview,
[Appellant] acknowledged that no one forced him to give the
interview. The recording itself demonstrates that the tone of the
interview was conversational and that no force or coercion was
used by the interviewing detective or any other law enforcement
present during the interview.
This [c]ourt found that Appellant’s statement made on
April 25, 2018 was voluntarily and knowingly given, and
Appellant’s right against self-incrimination was adequately
protected by the consultation with and presence of his counsel.
Appellant’s motion to suppress his statement on this basis was
properly denied.
Trial Court Opinion, 3/31/30, at 38–39.
Appellant avers that the trial court erred in concluding a recitation of
Appellant’s Miranda rights was rendered unnecessary by the presence of
counsel. While Appellant acknowledges that the Miranda-guaranteed right
to counsel was satisfied by his attorney’s presence, he maintains that his right
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to remain silent was not similarly protected. Appellant’s Brief at 48.6 We
reiterate that our standard of review of a trial court’s ruling on suppression
motions is limited to determining whether the factual findings are supported
by the record and whether the legal conclusions drawn from those facts are
correct. Bell, 871 A.2d at 271.
The Fifth Amendment to the United States Constitution provides that
“[n]o person . . . shall be compelled in any criminal case to be a witness
against himself.” U.S. Const. amend. V. To ensure the protection of that
right, the Supreme Court held in Miranda that any person “questioned by law
enforcement officers after being ‘taken into custody or otherwise deprived of
his freedom of action in any significant way’ must first ‘be warned that he has
a right to remain silent, that any statement he does make may be used against
him, and that he has a right to the presence of an attorney, either retained or
appointed.’” Stansbury v. California, 511 U.S. 318, 322 (1994) (quoting
____________________________________________
6 Appellant additionally argues that the trial court incorrectly suggested that
Appellant was not in custody at the time of the videotaped statement. This
statement is unsupported. See Findings of Fact and Conclusions of Law,
5/13/19, at 6 (“On April 25, 2018 . . . [Appellant] was in custody . . . .”); see
also Trial Court Opinion, 3/31/20, at 38 (“Although [Appellant] was in custody
and not provided Miranda warnings on April 25, 2018, no such warnings were
required.”).
Appellant also rehashes his complaint about ADA Shore’s inadmissible
hearsay and the trial court’s unfavorable credibility determination of
Ms. Amodei in the context of the trial court’s reliance and rejection of these
witnesses’ statements when rendering his decision on the Miranda issue.
These contentions do not merit further discussion.
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Miranda, 384 U.S. at 444). Miranda thus prohibits the use of statements
that are the product of police coercion as evidence against an accused. Moran
v. Burbine, 475 U.S. 412, 421 (1986).
With the precepts of Miranda in mind, we examine whether the
presence of Appellant’s counsel abrogated the Miranda requirements. As the
trial court observed, there is no Pennsylvania precedent addressing this issue;
however, we find guidance in the language of the Miranda Court wherein it
observed that “[t]he prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination.” 384 U.S.
at 444 (emphasis added). “As for the procedural safeguards to be employed,
unless other fully effective means are devised to inform accused persons of
their right of silence and to assure a continuous opportunity to exercise it,” a
person must be warned that he has a right to remain silent, that if he does
make a statement it may be used as evidence against him, and that he has a
right to the presence of an attorney. Id. Pertinent to the issue at hand, the
Supreme Court explained that “[t]he presence of counsel, in all the cases
before us today, would be the adequate protective device necessary to make
the process of police interrogation conform to the dictates of the privilege. His
presence would insure that statements made in the government-established
atmosphere are not the product of compulsion.” Id. at 466.
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Based upon this language, we agree with the trial court that the
presence of Appellant’s attorney throughout the April 25, 2018 interview,
when combined with the opportunity to consult with the attorney throughout
the interview, substituted adequately for Miranda warnings. The Miranda
Court itself recognized that the warnings are not the only permissible way to
protect a suspect’s right against self-incrimination in a custodial setting and
that the presence of an attorney would constitute adequate protection to
ensure that the police interrogation conformed “to the dictates of the
privilege.” Miranda, 384 U.S. at 444, 466. As a matter of simple logic, if
Miranda warnings are meant to protect a defendant until he can consult
counsel, see Minnick v. Mississippi, 498 U.S. 146, 150 (1990), they are not
necessary when counsel is present. Furthermore, the presence of counsel
assures that all the dictates of Miranda, including the right to remain silent,
are satisfied. Miranda, 384 U.S. at 466 (attorney’s presence would “insure
that statements made in the government-established atmosphere are not the
product of compulsion”). Therefore, Appellant’s Miranda rights were not
violated in this instance.
Appellant also claims that his confession to his role in the murders was
not knowing, voluntary, and intelligent. Appellant’s Brief at 45. Appellant
challenges the voluntariness of the confession because it was required before
the Commonwealth would extend a plea offer. Id. Appellant also insists again
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that it was his understanding the statement would not be used against him if
he decided not to proceed with plea. Id. at 45–46.
Individuals can give up their Miranda rights through a knowing,
intelligent, and voluntary waiver. Miranda, 384 U.S. at 444. To make such
a determination, two factors must be shown: (i) first, the relinquishment of
the right must be voluntary in the sense that it was the product of a free and
deliberate choice and not intimidation, coercion, or deception; “(ii) second,
the waiver must have been made with a full awareness of both the nature of
the right being abandoned and the consequences of the decision to abandon
it.” Moran, 475 U.S. at 421. “The voluntariness of a confession is determined
from a review of the totality of the circumstances surrounding the confession.”
Commonwealth v. Yandamuri, 159 A.3d 503, 525 (Pa. 2017) (citation
omitted).
We disagree that the fact that Appellant was required to make a
confession to reap the benefits of the plea deal stripped the statement of its
voluntariness. Appellant agreed to provide the interview after consultation
with his counsel and his mother, thus voluntarily sacrificing his right to remain
silent in order to secure the beneficial plea offer. He specifically acknowledged
at the start of the interview that no one had forced him to give the interview.
Moreover, counsel was present throughout the interview, which further
ensured against any coercive influences. See Commonwealth v.
Cunningham, 370 A.2d 1172, 1176 (Pa. 1977) (holding that interview was
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not involuntary and noting that “[m]ost significant is the fact that counsel was
present and was available to detect and describe even the most subtle
coercive and suggestive influences if they in fact had existed”). Therefore,
the trial court did not err in concluding, under the totality of circumstances,
that Appellant’s confession was knowing, intelligent, and voluntary.
Best Evidence and Parol Evidence Rules
Appellant’s final assault on the admissibility of the April 25, 2018
videotaped statement invokes the best evidence and parol evidence rules. We
apply the following standard and scope of review when reviewing a challenge
to a trial court's evidentiary rulings.
When we review a trial court ruling on admission of evidence,
we must acknowledge that decisions on admissibility are within the
sound discretion of the trial court and will not be overturned absent
an abuse of discretion or misapplication of law. In addition, for a
ruling on evidence to constitute reversible error, it must have been
harmful or prejudicial to the complaining party.
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.
Commonwealth v. Talley, 236 A.3d 42, 55 (Pa. Super. 2020) (quotation
omitted).
As for the admissibility of the videotape under the best evidence rule,
Appellant avers that the early portions of the interview establish that the
videotape could be used only if Appellant withdrew his plea or filed an appeal.
Appellant continues, “Neither event occurred. If the videotape accurately
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reflects the understanding of the parties, the best evidence rule precludes its
admission.” Appellant’s Brief at 53.
The trial court addressed the best evidence argument, as follows:
In the instant case, Appellant’s argument is illogical. In his
Concise Statement, Appellant claims that the “lower court erred
in denying [Appellant’s] Motion to Suppress his April 25, 2018
statement based on the Best Evidence Rule and Parole Evidence
Rule.”
However, at the suppression hearing and in briefs, Appellant
argued that this [c]ourt should not have been allowed to hear the
testimony of DA Shore or Mitigation Specialist Goodwin regarding
Appellant’s understanding of the plea deal. Rather, the [c]ourt
should have been limited to only the videotape itself under the
best evidence rule. Therefore, this [c]ourt is unable to conceive
how it could have suppressed the April 25, 2018 interview at
Appellant’s request while Appellant simultaneously claimed the
video was the “best evidence.”
Another error in this argument is that the videotape is not
necessarily the best evidence. There was a written plea
agreement, albeit on a sticky note, detailing the known terms of
the plea. Therefore, the best evidence in this case would more
appropriately be the written form of the agreement rather than
the snippet of the video in which the detectives and Appellant
briefly discussed some of the terms of the plea agreement.
Even if the video is the best evidence, Appellant was notified
within the first few minutes of the video that the interview would
be used against him in the event he did not accept the plea deal
and instead decided to go to trial. Appellant stated that he
understood, did not ask any questions or for clarification regarding
the plea, or to speak privately with his attorney who was seated
right next to him.
* * *
Furthermore, Appellant’s singular supporting citation for the
best evidence rule was [Commonwealth v.] Lewis, [623 A.2d 355,
357 (Pa. Super. 1993)] and the situation here is clearly
distinguishable. In Lewis, the video was not introduced into
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evidence, but the court allowed testimony about what would have
been on the video to establish a material fact - that the appellant
had shoplifted. In the instant case, both the written details of the
plea agreement and the full video wherein the detectives discuss
some of the terms of the plea deal were admitted into evidence.
The contextual testimony from DA Shore and Mitigation Specialist
Goodwin served only to establish that Appellant had the
opportunity to discuss the plea with his family and attorneys
before he decided to go through with the plea, and thus scheduled
the proffer.
Therefore, this [c]ourt found that the application of the Best
Evidence Rule to the video was irrelevant. Appellant knew that a
truthful statement was a prerequisite of the plea, he asked his
attorney to schedule the proffer, he was told and agreed that it
could be used against him if he did not go through with the plea
deal, and his counsel was by his side throughout the entire
interview.
Trial Court Opinion, 3/31/20, at 42–43 (record references omitted)
The best evidence rule is set forth in Pa.R.E. 1002 and provides, in
relevant part: “An original writing, recording, or photograph is required in
order to prove its content” unless otherwise provided by law.” Pa.R.E. 1002.
The rule applies when the contents of recorded evidence are at issue.
Commonwealth v. Lewis, 623 A.2d 355, 358 (Pa. Super. 1993) (internal
quotations and citations omitted).
Like the trial court, we are somewhat confounded by Appellant’s
argument advocating both for and against the videotaped statement as the
best evidence. Nevertheless, we construe Appellant’s position as asserting
that the beginning portion of the videotaped statement concerning Appellant’s
understanding of the plea deal and specifically, the circumstances under which
the statement could be used against him, is the best evidence of the terms of
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the plea and outside testimony regarding the plea was not admissible.
Therefore, Appellant urges that because the trial court erroneously considered
the testimony of ADA Shore and Mr. Goodwin as to Appellant’s belief regarding
potential use of the statement, the substance of the videotaped statement,
i.e., the confession, should be suppressed.
We reject Appellant’s best evidence argument because it is grounded in
the faulty legal premise that the holding in Lewis precluded ADA Shore’s and
Mr. Goodwin’s testimony. In Lewis, the defendant was arrested after he and
a companion attempted to steal a Walkman from a Sears Department store.
A store security guard, who observed their actions, apprehended the two as
they left the store. 623 A.2d at 356–357. At trial, and over the defendant’s
objection, the responding police officer testified regarding his observations of
the defendant as recorded on a store security camera. The actual recording,
however, was not presented as evidence. Id.
On appeal, a panel of this Court held the officer’s testimony, absent
introduction of the video itself, violated the best evidence rule. Lewis,
623 A.2d at 359. Conversely, herein, the best evidence rule does not prevent
a witness from testifying to the contents of the videotape because the
videotape itself was admitted into evidence. Accordingly, we discern no abuse
of discretion in the admission of ADA Shore’s and Mr. Goodwin’s testimony
explaining the contours of the plea agreement.
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Nor do we credit Appellant’s argument that the parol evidence rule
precluded extrinsic evidence concerning the specifics of the plea deal.
Generally, the parol evidence rule bars evidence of an oral agreement where
the parties have deliberately placed their entire agreement in writing, and that
writing represents the parties’ entire contract. Toy v. Metropolitan Life
Insurance Co., 928 A.2d 186, 204 (Pa. 2007).
The trial court determined that the parol evidence rule did not bar
extrinsic evidence concerning the plea deal:
Appellant claims that the recording of the April 25, 2018
interview is a writing for purposes of the Parole Evidence Rule
“since the content of the Proffer were transcribed to transcript.”
However, no transcript of the video was ever prepared. Appellant’s
argument would be more compelling if he claimed that the sticky
note plea deal barred the entry of the video and corresponding
testimony, but one glance at the sticky note makes it clear that it
was not the entirety of the agreement between the parties.
Both the sticky note and the discussion of the plea deal on
video were incomplete versions of the plea agreement. This
[c]ourt heard reliable testimony from DA Shore and defense team
member Mitigation Specialist Goodwin that there was a plea deal
to which the parties had agreed, the deal had been communicated
to Appellant in the presence of his attorneys and mother, and that
Appellant had agreed to the plea, thus necessitating the need for
the April 25, 2018 interview. Therefore, this [c]ourt found that the
Parole Evidence Rule did not necessitate the exclusion of the video
or the testimony regarding the context of the video.
Trial Court Opinion, 3/31/20, at 44–45 (record references omitted).
In his brief, Appellant contends that “[t]he confession of April 25, 2018
is a writing for purposes of the parol evidence rule, since it was reduced to a
transcript.” Appellant’s Brief at 55. This representation is belied by the
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record. A transcript of the April 25, 2018 interview was not included in the
record certified to us on appeal nor does the docket indicate that a transcript
was either requested or lodged. Furthermore, the trial court stated that there
was not a written transcript of the videotaped statement. See Trial Court
Opinion, 3/31/20, at 44 (“no transcript of the video was ever prepared.”).
Appellant does not refute the trial court’s finding in this regard.
Appellant also argues that “[i]f the Commonwealth believes that the
videotape does not accurately reflect the parties’ intent, as is suggested, [it
is] arguing that parol evidence should be admissible to reflect the intent of
the parties. In such instances the best evidence rule precludes its admission
. . . .” Appellant’s Brief at 55–56 (record references and internal quotations
omitted). As we previously determined the best evidence rule did not operate
to preclude ADA Shore’s and Mr. Goodwin’s testimony, there is no merit to
this aspect of Appellant’s argument.
Finally regarding the admissibility of the videotape, Appellant asserts
that “if the Commonwealth argues that there was no agreement on the
circumstances of when the videotape could be used at trial, they are then
conceding that the interview was simply plea negotiations, which renders the
videotape inadmissible under Pa.R.E 410(a)(4). . . .” Appellant’s Brief at 56.
Since the Commonwealth’s position clearly is that there was an agreement in
place concerning the videotape’s admissibility at trial and Appellant agreed to
its use, i.e., a stance directly opposite to that now propounded by Appellant,
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no discussion of this parol evidence preclusion theory is warranted.
Accordingly, for all the above reasons, the trial court did not abuse its
discretion in admitting ADA Shore’s and Mr. Goodwin’s testimony concerning
the circumstances surrounding the April 25, 2018 statement under the best
evidence and parol evidence jurisprudence.
Motion in Limine
In his seventh issue, Appellant contests the trial court’s partial denial of
his motion in limine to redact certain portions of Appellant’s July 13, 2017
interview with the Bucks County Detectives. Appellant explained that the
motion:
sought to redact evidence that was irrelevant, premised on
hearsay, highly prejudicial, and referenced polygraphs and plea
bargains. There were direct and indirect accusations of lying, and
questioning by the detectives comparable to a prosecutor offering
their opinion on the truth or falsity of evidence offered by a
criminal defendant. It also contains [Appellant’s] extra-judicial
statements in partial response to this interrogation. This evidence
was impermissible, inflammatory, irrelevant and prejudicial to the
defense during trial.
Appellant’s Brief at 56–57 (record references omitted). The trial court denied
the bulk of Appellant’s motion in limine, reasoning:
In the instant case, on December 31, 2018, Appellant filed
a motion in limine to redact the July 13, 2017 statement.
Appellant claimed that the entirety of the videotape was
“impermissibly inflammatory and prejudicial to the defendant.” In
the alternative of suppressing the entire statement, Appellant
asked this [c]ourt to redact portions of the recorded statement.
Appellant argued that some of the evidence should be
excluded pursuant to Pennsylvania Rule of Evidence 402 on the
grounds of prejudice, confusion, or waste of time. Specifically,
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Appellant objected to the portions of the videotape wherein the
detectives’ statements and questions amounted to “direct and
indirect accusations of lying” and were “based on or prefaced with
hearsay from alleged witnesses, unnamed sources and Co-
defendant Cosmo DiNardo himself.” Finally, Appellant claimed he
was so “worn down by the time the Detectives asked the same
questions for the third, fourth and fifth time with no intention of
backing off unless and until [Appellant] confessed to the murder
of Dean [Finocchiaro].” Id.
However, the record does not support Appellant’s argument.
Firstly, the recorded interview was highly relevant to proving
Appellant’s involvement in the murders. The question, then, is
whether the statements made by the detectives, offered not for
their truth but rather as an investigative tool, were unfairly
prejudicial. The issue, in other words, is whether the detectives[’]
statements regarding evidence disclosed by DiNardo tend to
suggest that the jury make their decision on an improper basis or
serve to divert the jury’s attention away from its duty of weighing
the evidence impartially. Pa.R.E. 403 Comment. This [c]ourt
found that the detectives[’] statements, used as an investigative
tool, were not unfairly prejudicial.
For example, Appellant’s first redaction request was as
follows:
Detectives: When did Cosmo [DiNardo] give you the
guns?
Appellant: He didn’t give me no guns.
Detectives: When you guys were at the farm, he didn’t
give you no guns? He didn’t ask you to hold anything
for him?
Appellant: No.
Appellant argued that this portion of the video should be
redacted on the grounds that it was “hearsay since this
information came from Cosmo DiNardo.”
However, this portion of the recorded interview was not
published to the jury to assert the truth of the matter that DiNardo
gave him the guns. Rather, it was published to the jury as part
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of the totality of the statement to show the nature of the interview
and the demeanor of both Appellant and the detectives.
Furthermore, it served to explain the detectives’ conduct
throughout the investigation. Based on their continued
questioning, the detectives were able to discern that Appellant
was changing his story and, therefore, lying.
In rendering the May 13, 2019 Findings of Facts and
Conclusions of Law, this [c]ourt concluded that Appellant had no
basis to assert that his statements were not freely and voluntarily
given or extracted by any sort of threats or violence. Appellant
voluntarily engaged with the detectives and waived his right to
the assistance of counsel. Furthermore, the factual findings of the
record support the statements made by the detectives while
questioning Appellant on July 13, 2017. The probative value of
the video, in its entirety, was not outweighed by the potential for
prejudice against Appellant, with the exception of the portions
mentioning polygraphs or plea bargains which were redacted by
agreement between the parties. Finally, the parties also provided
proposed cautionary/curative instructions and agreed upon the
final instructions given to the jurors.
Trial Court Opinion, 3/31/20, at 47–49 (record references omitted).
In reviewing the grant or denial of a motion in limine, this Court applies
an abuse of discretion standard of review. Commonwealth v. Stokes, 78
A.3d 644, 654 (Pa. Super. 2013) (quotation omitted). “An abuse of discretion
will not be found based on a mere error of judgment, but rather exists where
the court has reached a conclusion which overrides or misapplies the law, or
where the judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will.” Commonwealth v. Alicia, 92 A.3d 753,
760 (Pa. 2014) (quotation omitted).
Appellant does not identify the specific portions of the interview which
he claims should have been redacted. Rather he proposes three reasons to
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support redaction of the statement: 1) a number of the comments and
questions the detectives posed to Appellant were based on hearsay from
unnamed sources and DiNardo; 2) many of Appellant’s statements were
inadmissible because they were made when he was “overwhelmed,
exhausted, and when his capacity for self-determination was critically
impaired”; and, 3) “the direct and indirect accusations of lying made by the
detectives . . . should be excluded since the probative value is outweighed by
the danger of unfair prejudice.” Appellant’s Brief at 58–60.
Regarding Appellant’s position that the detectives referenced
inadmissible hearsay during the July 13, 2017 interview, particularly the
information provided to them by DiNardo, we conclude that those questions
and comments were not admitted for the truth of the matter asserted; rather,
they explained the course of conduct undertaken by the detectives in their
efforts to encourage Appellant to reveal the location of the murder weapons.
“Such statements are not hearsay.” Commonwealth v. Hardy, 918 A.2d
766, 777 (Pa. Super. 2007) (citation omitted); see also Commonwealth v.
Manivannan, 186 A.3d 472, 482–483 (Pa. Super. 2018) (quoting
Commonwealth v. Dent, 837 A.2d 571, 579 (Pa. Super. 2003)) (“It is, of
course, well established that certain out-of-court statements offered to explain
a course of police conduct are admissible. Such statements do not constitute
hearsay since they are not offered for the truth of the matters asserted;
rather, they are offered merely to show the information upon which police
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acted.”). Additionally, when Appellant lodged a hearsay objection to the
July 13, 2017 statement at trial, the trial court, with Appellant’s consent, gave
the following curative instruction:
All right. A moment ago, ladies and gentlemen, there was
an objection by the defense regarding a statement by the
interviewing detectives essentially that Cosmo DiNardo said this.
As you’ll note, I overruled that objection and allowed that
information to be presented.
I’m sure you have heard the term hearsay, which in a broad
sense is essentially any statement that’s not made here in this
courtroom and is being utilized and presented to you, but there are
many exceptions to that.
Here I have determined that you can hear those statements
from the detectives not for the truth that that is necessarily what
Cosmo DiNardo said, but to have it presented as essentially an
investigative tool that the detective is utilizing in an attempt to try
to elicit information.
That is the reason that information is allowed to be presented
to you and that I have ruled that it can come in in that fashion.
N.T. (Trial), 11/8/19, at 14–15.
In light of the court’s instruction, which jurors are presumed to follow,
it is reasonable to assume that the jurors did not consider the objected-to
portion of the detectives’ questioning for the truth of the matter asserted.
Accordingly, the trial court did not err in failing to redact the portions of the
July 13, 2017 statement that Appellant challenges as hearsay.
Appellant further asserts that some of the questioning occurred after he
was exhausted from the four-hour interview. Appellant does not pinpoint
when exhaustion set in, nor does he identify any particular statement that
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indicates his weariness. In any event, we do not credit Appellant’s position
that his mental state, in this instance, required a redaction.
Generally speaking, “voluntary extrajudicial statements made by a
defendant may be used against a defendant even though they contain no
admission of guilt.” Commonwealth v. Simmons, 662 A.2d 621, 635 (Pa.
1995). Moreover, while Pa.R.E 403 empowers courts to “exclude relevant
evidence if its probative value is outweighed by . . ., unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time . . .”, the
probative value of the July 13, 2017 videotaped statement in this matter
outweighed any prejudicial effect.
[W]hen a person has committed a crime, and knows that he
is wanted for it, any attempt by that person to . . . give false
statements . . . may be admissible as evidence of consciousness of
guilt, and may, along with other evidence in the case, form a basis
from which guilt may be inferred.
Commonwealth v. Pestinikas, 617 A.2d 1339, 1347–1348 (Pa. Super.
1992); see also Commonwealth v. Flamer, 53 A.3d 82, 88 (Pa. Super.
2012) (the highly probative nature of defendant’s consciousness of guilt
clearly outweighs any undue prejudice arising from its admission);
Commonwealth v. Chapman, 136 A.3d 126, 128 (Pa. 2016) (defendant’s
lies to police during their investigation evidenced his consciousness of his
guilt). Thus, the trial court did not abuse its discretion in denying the motion
in limine to Appellant’s statements allegedly made when his mental capacities
were compromised by alleged exhaustion.
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We turn now to the impact of the moments in the detectives’ interview
with Appellant wherein they accused Appellant, directly or indirectly, of lying.
We have held that instances where police accused a suspect of lying are
subject to redaction because “their statements were akin to a prosecutor
offering his or her opinion of the truth or falsity of the evidence presented by
a criminal defendant, and such opinions are inadmissible at trial.”
Commonwealth v. Kitchen, 730 A.2d 513, 521–522 (Pa. Super. 1999)
(citing Commonwealth v. Henry, 706 A.2d 313 (Pa. 1997)). Thus, we agree
with Appellant that the trial court abused its discretion by failing to redact the
portions of the July 13, 2017 statement wherein the detectives declared that
Appellant was untruthful.
That being said, the admission of the detectives’ accusatory statements
was harmless error. An error is harmless if it could not have contributed to
the verdict. Commonwealth v. Wright, 961 A.2d 119, 143 (Pa. 2008). The
Commonwealth bears the burden of establishing the harmlessness of the
error. Commonwealth v. Green, 76 A.3d 575, 582 (Pa. Super. 2013).
This burden is satisfied when the Commonwealth is able to show
that: (1) the error did not prejudice the defendant or the prejudice
was de minimis; or (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 [e]ffect of the error so
insignificant by comparison that the error could not have
contributed to the verdict.
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Id. (quoting Commonwealth v. Laich, 777 A.2d 1057, 1062–1063 (Pa.
2001) (internal citations omitted)).
On April 25, 2018, nine months after Appellant was interviewed on
July 13, 2017, he gave a recorded statement as a condition of his plea
agreement with the Commonwealth. Prior to describing the specifics of the
crimes, Appellant represented that he would be truthful and would correct any
misstatements made in his prior interview. Appellant then provided a
confession regarding his role in the murders and cover-up, admitting that he
shot Finocchiaro. Therefore, to the extent the jury impermissibly heard the
detectives accuse Appellant of lying during July 13, 2017 interview, the fact
that Appellant had been untruthful was corroborated by his own admission in
the April 25, 2018 statement played to the jury. Additionally, the evidence of
Appellant’s guilt, particularly his confession, was overwhelming. Accordingly,
any error resulting from the admission into evidence of the detectives’
unredacted accusations of untruthfulness on July 13, 2017, did not contribute
to the jury’s verdict and was harmless.
Preclusion of Expert Testimony
Appellant eighth claim is of evidentiary error in the trial court’s denial of
his request to present expert testimony regarding Appellant’s intelligence
quotient score (“I.Q.”) during trial. Appellant’s Brief at 61. The trial court
disallowed the testimony, reasoning:
In all cases, a defendant is required by the Pennsylvania
Rules of Criminal Procedure to comply with motions filed by the
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Commonwealth for pretrial discovery. Pa.R.Crim.P. 573(C)(1).
This includes the “results or reports of physical or mental
examinations, and of scientific tests or experiments made in
connection with the particular case.” Pa.R.Crim.P. 573(C)(1)(a).
Furthermore, if a defendant intends to call an expert witness, there
is a continuing duty to disclose the intent to call the expert and any
evidence or report to which the expert may testify:
(2) If an expert whom the defendant intends to call in
any proceeding has not prepared a report of
examination or tests, the court, upon motion, may
order that the expert prepare and the defendant
disclose a report stating the subject matter on which
the expert is expected to testify; the substance of the
facts to which the expert is expected to testify; and a
summary of the expert’s opinions and the grounds for
each opinion.
Pa.R.Crim.P. 573(C)(2).
The remedy for either party failing to comply with this rule
is to (1) order such party to permit discovery or inspection, (2)
grant a continuance, or (3) prohibit such party from introducing
evidence not disclosed, other than testimony of the defendant.
Pa.R.Crim.P. 573(E); see also Commonwealth v. Mendez, 74 A.3d
256 (Pa. Super. Ct. 2013), appeal denied, 87 A.3d 319 (Pa. 2014).
To sanction a defendant for discovery violations, the court may
“enter such other order as it deems just under the
circumstances.[”] Pa.R.Crim.P. 573(E).
It is perfectly within the trial court’s discretion to disallow a
defendant from presenting the testimony of an expert witness for
failing to comply with discovery deadlines to produce an expert
report. See Commonwealth v. Radecki, 180 A.3d 441 (Pa. Super.
Ct. 2018) (the Superior Court found that the trial court did not
abuse its discretion in disallowing defendant to present the
testimony of his medical expert because defendant failed to
comply with several discovery deadlines to submit an expert
report prepared by the doctor, and the record did not indicate that
the doctor ever prepared an expert report).
On January 18, 2018, the Commonwealth filed a request
for pre-trial discovery. On February 23, 2018, March 9, 2018,
April 5, 2018, July 31, 2018, and August 1, 2018, the District
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Attorney submitted additional requests for pre-trial discovery,
specifically asking for the results or reports of any physical or
mental examination of Appellant and/or any evidence to which an
expert would testify at trial. The Commonwealth never received
any expert report.
The time of trial was the first-time defense counsel made
the Commonwealth aware that they would like to call Psychologist
[Dean] Dickson [(“Dickson”)] to testify as an expert witness in the
guilt phase. Such late “notice” did not give the Commonwealth
time to review the expert’s report, respond to the expert report,
retain their own expert, or to conduct their own testing of
Appellant. The defense “essentially surprised the Commonwealth
with an expert witness during the guilt phase.”
This left the [c]ourt with three options to remedy the defense
team’s procedural failure. The first option was to order the defense
team to permit discovery or inspection. Pa.R.Crim.P. 573(E).
However, it was the final day of testimony in the trial. Even
ordering the defense team to produce a copy of the expert report
for the Commonwealth to review would not have been an adequate
remedy because the Commonwealth would have no opportunity to
respond in a meaningful way aside from cross-examination of the
witness. There would be no opportunity to retain their own expert
or conduct their own test.
The second option was to continue the trial. Pa.R.Crim.P.
573(E). At this point, the trial had already been continued twice,
on May 16, 2018 and February 27, 2019. The parties had endured
a week-long voir dire to secure the venirepersons, the jurors had
been asked to make arrangements to be available for the lengthy
trial, and the parties had already presented a week of testimony
and evidence. Furthermore, the jurors had been selected, sworn,
and heard five days of testimony at the time counsel first raised an
intention to submit this expert testimony. It is settled law that
jeopardy attaches once a jury is empaneled and sworn. See
Downum v. United States, 372 U.S. 734 (1963) (The U.S. Supreme
Court ruled against a second prosecution of a defendant whose first
trial ended immediately after the jury had been sworn). To
continue the trial at that point would have been inappropriate, a
waste of judicial resources, and it would have triggered
constitutional ramifications related to the double jeopardy clause.
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The third option this [c]ourt faced, as defined in the rules of
criminal procedure, was to preclude the defense’s requested expert
testimony. Pa.R.Crim.P. 573(E). The defense team’s complete
and utter failure to comply with the rules put the Commonwealth
“in a position where our hands have been completely tied.” This
[c]ourt “struggled with this . . . in a way to find that this is at all
appropriate and admissible.” Ultimately, this [c]ourt could
conceive of no other order it could enter that would be just under
the circumstances. The only just option was to exclude the expert
testimony.
Trial Court Opinion, 3/31/20, at 51–52 (record references and some citations
omitted).
Appellant contends that the expert testimony concerning his I.Q. would
support his claim that he did not intelligently waive his Pa.R.E. 410(a)(4)
rights and/or Miranda rights and that his mother’s presence at the April 24,
2018 was necessary in assisting the defense team. Appellant’s Brief at 61.7
“Our standard of review in cases involving the admission of expert
testimony is broad. Generally speaking, the admission of expert testimony is
a matter left to the discretion of the trial court, and its rulings will not be
reversed absent an abuse of discretion.” Commonwealth v. Watson, 945
A.2d 174, 176 (Pa. Super. 2008) (citation and quotation marks omitted).
Concerning pretrial disclosure of expert reports during discovery,
Pa.R.Crim. P. 573 provides, in pertinent part, as follows:
Rule 573. Pretrial Discovery and Inspection
____________________________________________
7 Defense counsel referenced Appellant’s I.Q. score of 79 in his opening
statement. N.T. (Trial), 11/6/19, at 45, 51, and 55.
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C) Disclosure by the Defendant.
(1) In all court cases, if the Commonwealth files a motion for
pretrial discovery, upon a showing of materiality to the
preparation of the Commonwealth’s case and that the request is
reasonable, the court may order the defendant, subject to the
defendant’s rights against compulsory self-incrimination, to allow
the attorney for the Commonwealth to inspect and copy or
photograph any of the following requested items:
(a) results or reports of physical or mental examinations,
and of scientific tests or experiments made in connection
with the particular case, or copies thereof, within the
possession or control of the defendant, that the defendant
intends to introduce as evidence in chief, or were prepared
by a witness whom the defendant intends to call at the trial,
when results or reports relate to the testimony of that
witness, provided the defendant has requested and received
discovery under paragraph (B)(1)(e);
* * *
(D) Continuing Duty to Disclose. If, prior to or during trial,
either party discovers additional evidence or material previously
requested or ordered to be disclosed by it, which is subject to
discovery or inspection under this rule, or the identity of an
additional witness or witnesses, such party shall promptly notify
the opposing party or the court of the additional evidence,
material, or witness.
Pa.R.Crim.P. 573 (C), (D).
Appellant concedes that he did not provide notice to the Commonwealth
as required by Rule 573(1)(a). Appellant’s Brief at 62–63. However,
Appellant now claims that Mr. Dickson’s expert testimony was admissible
under Pa.R.Crim.P. 568, which dictates the notice requirements for
presentation of expert evidence of a mental condition. Id. at 62. See
Pa.R.Crim.P. 568 (a defendant intending to introduce expert evidence relating
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to a mental disease or defect or any other mental condition bearing on the
issue of guilt, must file “not later than the time required for filing an omnibus
pretrial motion . . . a notice of the intention to offer this expert evidence, and
shall serve a copy of the notice and a certificate of service on the attorney for
the Commonwealth.”). Appellant further offers, by reliance upon an
unpublished and non-precedential decision of this Court, that Rule 568 notice
is not necessary when the expert evidence sought to be introduced challenges
the voluntariness of a confession. Appellant’s Brief at 62 (citing
Commonwealth v. Winter, 105 A.3d 36, 1715 MDA 2013 (Pa. Super., filed
June 18, 2014)) (unpublished memorandum).
Appellant’s argument that the trial court erred in excluding Dickson’s
expert testimony based upon Pa.R.Crim.P. 568 advances a different legal
theory than that presented at trial; therefore, the issue is waived. See
Commonwealth v. Rivera, 238 A.3d 482, 499 (Pa. Super. 2020) (an
appellate court cannot review a legal theory in support of a claim unless that
particular legal theory was presented to the trial court); see also Pa.R.A.P.
302 (“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”). Moreover, in Commonwealth v. Newman, 555
A.2d 151 (Pa. Super. 1989), this Court explained that the party making an
offer of proof waives any grounds other than those actually presented for the
trial court’s consideration:
An offer of proof must be sufficient to alert the trial judge to the
purpose for which the evidence is being offered, and a trial court’s
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exclusion of evidence must be evaluated on appeal by a review of
the contents of the offer at the time it was made. The party
specifying the purpose for which the testimony is admissible cannot
argue on appeal that the evidence was admissible for a purpose
other than that offered at trial. Appellant is deemed to have
waived any grounds, other than those offered at trial, for the
admission of the evidence at trial.
Id. at 156 (citations omitted).
Here, during a sidebar discussion on the admissibility of Mr. Dickson’s
testimony, the trial court instructed defense counsel to make an offer a proof.
Defense counsel responded: “That [Mr. Dickson] was retained by [co-counsel]
to administer an IQ test. He administered the IQ test, and here’s the result. .
. . That’s it.” N.T. (Trial), 11/12/19, at 85. This offer of proof does not suffice
to preserve the new argument that the trial court abused its discretion in
disallowing Mr. Dickson’s testimony under Pa.R.Crim.P. 568, the theory now
advanced by Appellant. Therefore, Appellant has waived review of this issue.
Commonwealth’s Information Technology Person
In his ninth issue, Appellant submits that he is entitled to a new trial
because the Commonwealth’s use of an information technology (“IT”) person
to investigate potential jurors gave the Commonwealth an unfair advantage
during jury selection. Appellant’s Brief at 74. The trial court responded to
this allegation of error:
In addition to the questions posed by counsel, the Pennsylvania
Bar Association has stated that it is ethical to also research a
potential juror online. See [Pa. Bar Association Formal Opinion,
American Bar Association (ABA) Formal Opinion 466, 2014-300,
Lawyer Reviewing Jurors’ Internet Presence, ¶ 9 (2014)]. So long
as the research is not so intrusive as to constitute an ex parte
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communication, the public portions of a potential juror’s internet
or social network presence is a permissible method of obtaining
additional information about that individual. id.
The Commonwealth’s IT person was accessing public
dockets, Google, and Facebook to research the potential jurors.
“One of the reasons for this is if one of the jurors would be posting
about the case, we feel it’s our obligation to let the [c]ourt know
about that.” Therefore, the research conducted by the
Commonwealth’s IT person facilitated choosing a fair and
impartial jury by weeding out the individuals who had been
exposed to excessive publicity about the case.
Furthermore, the defense team had the capability to bring
a computer, connect it to the internet, and conduct the same
research into the public internet presence of the potential jurors.
The Commonwealth did not access any information that the
defense team was not also capable of accessing. The mere fact
that Appellant and his counsel did not have the foresight to
arrange for an individual to assist them in researching during voir
dire did not constitute a reason to prohibit the Commonwealth
from doing so, so long as everyone complied with the ethical
requirements set forth in the PBA Opinion.
Trial Court Opinion, 3/31/20, at 57–58. “The scope of voir dire rests in the
sound discretion of the trial court, whose decision will not be reversed on
appeal absent palpable error.” Commonwealth v. Scott, 212 A.3d 1094
(Pa. Super. 2019 (citation omitted).
Appellant first avers that nothing in Pa.R.Crim.P. 632, relating to juror’s
information questionnaires, permits the use of IT personnel during jury
selection. Appellant’s Brief at 74. We respond simply: The Rule does not
prohibit this sort of internet research.
Also, as our independent research did not discover any Pennsylvania
case law either interpreting the opinion of the Pennsylvania Bar Association
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(“PBA”) permitting limited online research of potential jurors or independently
endorsing such use of social media, we rely on the PBA’s opinion sanctioning
this form of research. Moreover, we agree with the trial court that the
Commonwealth’s use of social media during voir dire conformed to the dictates
of the PBA. When conducting voir dire, the Commonwealth utilized its IT
person to investigate potential jurors using “public dockets, Google, and
Facebook.” N.T. (Voir Dire), 9/17/19, at 55–56. The prosecution did not use
this research to engage in ex parte communications or influence prospective
jurors.
Thus, what remains is Appellant’s bald allegation that he had no ability
to employ an IT investigator and his unsupported claim that the
Commonwealth received an unfair advantage during jury selection because it
had access to social media sites. Appellant’s Brief at 74. We agree with the
trial court that Appellant is not entitled to relief on these grounds. An IT
professional is not required to utilize the social media sites accessed by the
Commonwealth. Additionally, Appellant has not explained how researching
publically available information on prospective jurors prejudiced him in any
significant way, nor how the Commonwealth’s internet research deprived him
of a fair trial.
Motion for Change of Venire
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In his penultimate issue, Appellant alleges that a second error occurred
during jury selection when the trial court denied his motion for change in
venire. Appellant asserts that his motion should have been granted because:
(i) the pretrial publicity was sensational, inflammatory, and
slanted toward conviction; (ii) the publicity mentions prior
admissions and confessions of [Appellant] as well as his prior
criminal record; (iii) the publicity was derived from prosecuting
officers’ reports; (iv) the publicity was extensive, sustained and
pervasive; [v] the lower court failed to find that pretrial publicity
was presumed as inherently prejudicial, contrary to the compelling
evidence on this issue; [vi] the lower court failed to find that the
publicity was so extensive, sustained, and pervasive that the
community was deemed to be saturated with it, and [vii] the lower
court failed to withhold its decision in abeyance pending a
determination during jury selection that there was a sufficient
cooling off period between the publicity and the trial for any
prejudice to have dissipated.
Appellant’s Brief at 82.
A motion for change of venue or venire “may be” granted “when it is
determined after hearing that a fair and impartial trial cannot . . . otherwise
be had in the county where the case is currently pending.” Pa.R.Crim.P.
584(A). This Court has stated:
The mere existence of pretrial publicity does not warrant a change
of venue. Ordinarily, a defendant is not entitled to a change of
venue unless he or she can demonstrate that the pretrial publicity
resulted in actual prejudice that prevented the impaneling of an
impartial jury. Prejudice will be presumed, however, if the
defendant is able to show that the pretrial publicity: (1) was
sensational, inflammatory, and slanted toward conviction, rather
than factual and objective; (2) revealed the defendant’s prior
criminal record, if any, or referred to confessions, admissions or
reenactments of the crime by the defendant; or (3) derived from
official police or prosecutorial reports. Even if the defendant
proves the existence of one or more of these circumstances, a
change of venue is not warranted unless the defendant also
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demonstrates that the pretrial publicity was so extensive,
sustained, and pervasive that the community must be deemed to
have been saturated with it, and that there was insufficient time
between the publicity and the trial for any prejudice to have
dissipated.
Commonwealth v. Tharp, 830 A.2d 519, 529 (Pa. 2003) (citations omitted).
The trial court denied Appellant’s change of venire motion based upon
the following rationale:
In the instant case, this [c]ourt found that Appellant’s pre-
trial motions for change of venire were premature. Appellant failed
to demonstrate that the recent media coverage was so “extensive,
sustained, and pervasive that the community was saturated with
it.” Therefore, it was necessary for the parties and this [c]ourt to
conduct voir dire to determine whether the press coverage in this
case required a presumption of prejudice. The process gave
Appellant the opportunity to demonstrate actual or presumptive
prejudice based on the questions asked at voir dire. This [c]ourt
recognized that, despite the best efforts of the parties, a change
of venire may ultimately be necessary; however, that
determination could not he made without at least attempting to
find twelve members of Appellant’s community who could be fair
and impartial.
To that end, the media coverage that Appellant complained
of began immediately following the murders in July 2017. The
coverage thereafter dissipated or entirely ended in May 2018—a
year and a half before the trial actually began on November 6,
2019. Following this [c]ourt’s Order of May 23, 2018, the parties
refrained from commenting on the case to the media. Although
there were several articles announcing the start of jury selection
in September 2019, they would more accurately be described as
factual summaries of the case rather than inflammatory or
prejudicial.
At voir dire, both parties had the opportunity to question
each potential juror at length regarding their knowledge of the
case. The vast majority of jurors stated that they did not have a
fixed opinion of the case, that they would be able to put aside what
they thought they knew of the matter to be fair and impartial, and
that they would be able to base their decision solely on what was
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presented during the course of the trial and follow this [c]ourt’s
instructions. As such, the parties were able to agree on twelve
jurors and six alternates in half the amount of time this [c]ourt and
the parties originally anticipated. Therefore, a change of venire
was not necessary.
Trial Court Opinion, 3/31/20, at 65–66 (footnote omitted).
It is well-settled that the decision of whether to grant a request for
change of venire is within the sound discretion of the trial court.
Commonwealth v. Chmiel, 30 A.3d 1111, 1152 (Pa. 2011) (citation
omitted). “This is primarily because the trial court is in the best position to
assess the atmosphere of the community and to judge the necessity of any
requested change.” Tharp, 830 A.2d at 529.
Appellant first alleges that the trial court failed to withhold its change of
venire decision “pending a determination during jury selection that there was
a sufficient cooling off period between the publicity and the trial, for any
prejudice to have dissipated.” Appellant’s Brief at 85. This assertion is not
supported by the record. At the conclusion of the argument of the change of
venire motion at the January 14, 2017 hearing, the trial court chose to take
the matter “under advisement.” N.T. (Pretrial Hearing), 1/14/19, at 56. After
the motion was re-litigated during the April 15, 2019 hearing, the trial court
stated: “That motion is denied. Let me say this. It is denied at this time. If
during the course of jury selection we reach a point where we realize that we
cannot obtain a jury, then we’ll take the necessary steps to address it.” N.T.
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(Pretrial Hearing), 4/15/19, at 86. Thus, contrary to Appellant’s recollection,
the trial court did not decide the motion at the pretrial stage.
Appellant further distorts the record by claiming that the trial court failed
to find that pretrial publicity was presumptively prejudicial in its May 13, 2019
Findings of Fact and Conclusions of Law. Appellant’s Brief at 83. However,
the only reference to Appellant’s motion for change of venire in that decision
was one line denying the motion, without any elaboration. Findings of Fact
and Conclusions of Law, 5/13/19, at 1.
In any event, as our Supreme Court stated in Commonwealth v.
Drumheller, 808 A.2d 893 (Pa. 2002),
one who claims that he has been denied a fair trial because of
pretrial publicity must show actual prejudice in the empanelling of
the jury. In certain cases, however, pretrial publicity can be so
pervasive or inflammatory that the defendant need not prove
actual juror prejudice. “Pretrial prejudice is presumed if: (1) the
publicity is sensational, inflammatory, and slanted toward
conviction rather than factual and objective; (2) the publicity
reveals the defendant’s prior criminal record, or if it refers to
confessions, admissions or reenactments of the crime by the
accused; and (3) the publicity is derived from police and
prosecuting officer reports.” Commonwealth v. Weiss, 565 Pa.
504, 776 A.2d 958, 964 (2001), petition for cert. filed (U.S. Mar.
11, 2002) (No. 01–9175).
Even where pre-trial prejudice is presumed, “a change of
venue or venire is not warranted unless the defendant also shows
that the pre-trial publicity was so extensive, sustained, and
pervasive that the community must be deemed to have been
saturated with it, and that there was insufficient time between the
publicity and the trial for any prejudice to have dissipated.”
Karenbauer, 715 A.2d at 1092.
In testing whether there has been a sufficient
cooling period, a court must investigate what a panel
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of prospective jurors has said about its exposure to
the publicity in question. This is one indication of
whether the cooling period has been sufficient. Thus,
in determining the efficacy of the cooling period, a
court will consider the direct effects of publicity,
something a defendant need not allege or prove.
Although it is conceivable that pre-trial publicity could
be so extremely damaging that a court might order a
change of venue no matter what the prospective
jurors said about their ability to hear the case fairly
and without bias, that would be a most unusual case.
Normally, what prospective jurors tell us about their
ability to be impartial will be a reliable guide to
whether the publicity is still so fresh in their minds
that it has removed their ability to be objective. The
discretion of the trial judge is given wide latitude in
this area.
Commonwealth v. Chambers, 546 Pa. 370, 685 A.2d 96, 104
(1996), cert. denied, 522 U.S. 827, 118 S.Ct. 90, 139 L.Ed.2d 46
(1997) (citing Breakiron, 571 A.2d at 1037–1038, n.1).
Drumheller, 808 A.2d at 902–903 (some internal citations and quotation
marks omitted).
It is undisputed that the news coverage of these murders and the
discovery of the bodies in July 2017 was wide-spread and, often times,
dramatic. Additionally, the media reported the confessions of Appellant and
DiNardo and Appellant’s prior criminal record. However, the latest video
Appellant submitted in support of his motion was from May 2018—one and
one-half years before the jury selection began in September 2019. For this
reason, when Appellant litigated his motion for change of venire in
January 2019, despite Appellant’s contrary representation, the trial court
determined that it would revisit whether there was a sufficient cooling-off
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period dissipating any prejudice that may have resulted from the news
coverage. See N.T. (Pretrial Hearing), 1/14/19, at 56 (wherein the trial court
took the matter “under advisement”); N.T. (Pretrial Hearing), 4/15/19, at 86
(wherein the trial court deferred a definitive ruling on the motion until voir
dire). Thus, we will review the propriety of the trial court’s denial of the motion
in the context of what occurred during voir dire.
During voir dire, the potential jurors who were questioned about their
knowledge of the case responded that they were vaguely familiar with the
murders, remembered hearing about them when they happened in the
summer of 2017, but did not follow subsequent media coverage of the case,
and for the most part, were not familiar with Appellant’s participation in the
crimes. See, N.T. (Voir Dire), 9/16/19, at 43–266; 9/17/19, at 30–281;
9/18/19, at 38–235; 9/19/19, at 45–293; 9/20/19 at 37–166. Additionally,
the selected jurors represented that their recollection about the publicity
surrounding the case did not result in a fixed opinion as to Appellant’s guilt or
innocence. See, N.T. (Voir dire), 9/16/19, at 59–266; 9/17/19, at 82–281;
9/19/19, at 56–293; 9/20/19, at 70–166. Appellant does not cite any instance
during voir dire wherein a juror’s response indicated that pretrial publicity
compromised his or her ability to listen to the case impartially.
Given the outcome of the juror questioning and the jurors’ responses
thereto, we find the holding in Commonwealth v. Robinson, 864 A.2d 460,
(Pa. 2004) instructive:
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[A]fter thoroughly reviewing the record we are not persuaded by
the complaints made by Appellant. Any potential bias on the part
of the jurors in relation to the media coverage of the case was
sufficiently dealt with during the individually-conducted voir dire
when the defense counsel, the prosecutor, and the trial court,
asked the potential jurors whether they had heard or read anything
about the case. Indeed, unless preliminarily excused for other,
unrelated reasons, each of the prospective jurors was questioned
about their familiarity with the case and their knowledge
concerning the incidents from media outlets. Some jurors stated
that they knew about the incidents and they were further
questioned about whether their ability to decide the case would be
affected. The record reveals that of the jurors who were aware of
the case, most gained their knowledge through the media reports
circulated at the time of the victim’s homicide and Appellant’s
apprehension, which was more than a year before the trial was set
to begin. This clearly indicates the presence of a sufficient “cooling
off period” that minimized any potential ill effects of the publicity
surrounding the events at issue.
Id. at 485.
After undertaking an independent review of the voir dire proceedings,
we are convinced that pretrial publicity did not result in an inability to select
a fair and impartial jury in Bucks County. Accordingly, insofar as Appellant
was not entitled to a change of venire, the trial court did not abuse its
discretion in denying that motion, and Appellant is not entitled to appellate
relief on this basis.
Closing Argument
Appellant’s final argument is that the trial court erred in failing to give
curative instructions in response to allegedly improper comments during the
Commonwealth’s closing argument. Appellant’s Brief at 76. In his Pa.R.A.P.
1925(b) statement, on this issue, Appellant simply averred that “[t]he lower
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court abused its discretion in not ruling comments made by the
Commonwealth to the jury during closing arguments with facts that were not
in evidence and which prejudiced [Appellant] were improper warranting a
curative instruction.” Pa.R.A.P. 1925(b) statement, 1/13/20, at 2.
We note that an appellant’s 1925(b) statement must identify the specific
components of a closing argument with which he takes issue.
Commonwealth v. Hansley, 24 A.3d 410, 416 n.4 (Pa. Super. 2011).
Despite this marked deficiency in Appellant’s 1925(b) statement, the trial
court discussed the three instances wherein Appellant objected to the
Commonwealth’s closing argument:
The first objection raised by Appellant was to the Commonwealth
referencing something Attorney Peruto stated in his Opening
Statement. During Openings, Attorney Peruto told the jury that
Appellant’s “got a tested IQ of 79.” Over the course of his
statement, he mentioned Appellant’s IQ twice more. The context
of the second two references was to contextualize for the jury that
what they would have done were they in Appellant’s situation
cannot necessarily be applied to Appellant due to his lower IQ.
However, as discussed supra, Appellant’s counsel failed to file a
notice of expert witness and the testimony was not permitted.
Therefore, during the Closing Argument, the prosecution stated:
DA Shore: [Appellant] has confessed to first-degree
murder.
He has no other card to play here with all of you but
to blame somebody else, and blame he does. First it’s
Cosmo, then it’s Craig Penglase, then it’s that he has
a low lQ. His low IQ, what did we hear about that?
Zero. Nothing came from the witness stand about
that.
Mr. Peruto: Objection, Judge. It was objected to.
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The Court: Overruled. Go ahead. Move on.
This was a general objection for which Appellant failed to request
any remedy. Appellant brought the issue of IQ in, and it was
Appellant's own failure for making promises and assertions to the
jury without being able to provide them with evidence.
The second objection was promptly sustained by this
[c]ourt. The prosecution improperly referenced the fact that
Appellant had been shot nineteen times several months prior to
the murders, “for which the defendant has no explanation.” This
was inappropriate for two reasons. First, the parties had agreed
not to mention Appellant’s prior contact with law enforcement
unless Appellant opened the door to that issue. Mention of his
gunshot wounds arguably fall under that category. The video
statements were specifically redacted to preclude mention of this
information. Notably, however Peruto was the one who elicited
testimony related to the fact that Appellant had been shot
previously. On his cross-examination of Lieutenant Kemmerer,
Attorney Peruto asked the detective whether Appellant had
offered an explanation as to why he was using crutches and leg
braces at the time of the July 13 interview, to which the Lieutenant
responded that Appellant “had said he was shot.”
Secondly, “for which the defendant has no explanation” is
another way of pointing out to the jury that Appellant did not
testify in his own defense, but rather exercised his Fifth
Amendment rights. Commenting on a defendant’s decision not to
testify is never appropriate, therefore this [c]ourt sustained the
objection and directed the jury to disregard the statement. At no
point after this objection did any member of the defense team ask
for an additional remedy or curative instruction.
The last objection pertained to the cell phone evidence
presented by Detective Eric Landami. Through the cell phone
dump, detectives were able to access Appellant’s browsing and
web search history. There were multiple searches on sneakers
and multiple searches on the Pornhub website. There was no
objection from the defense team at this time. Later, in his closing,
DA Shore referenced the fact that Appellant was “surfing porn”
while [Finocchiaro’s] family was “worried sick” looking for him.
Appellant raised a general objection, which this [c]ourt overruled
as the statement was supported by evidence proved at trial. No
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further argument was heard, nor any additional request for a
remedy or curative instruction.
Finally, in the jury charge, this [c]ourt instructed the jury to
base their verdict solely on the evidence presented. There is a
presumption that juries follow instructions given by the trial court.
Commonwealth v. Housman, 986 A.2d 822, (Pa. 2009). The jury
was directed to disregard various statements throughout the
entirety of the trial. Appellant points to no evidence to overcome
the presumption that the jury followed this [c]ourt’s instructions.
Trial Court Opinion, 3/31/20, at 60–61 (record references omitted). Despite
its discussion of the three objections raised by Appellant during trial, the trial
court ultimately determined that this issue was waived. See Trial Court
Opinion, 3/31/20, at 62 (“Neither did Appellant lodge any specific objections
to statements made by the Commonwealth in Closing Arguments, nor did
Appellant identify the specific issues he is complaining of on appeal in his
1925[b] Statement. Therefore, this issue is waived on appeal.”).
We agree with the trial court that Appellant has waived appellate review
of this issue. See Commonwealth v. Scott, 212 A.3d 1094, 1113 (Pa. Super
2019) (claim of prosecutorial misconduct during closing argument waived
when it was not readily inferable from Appellant’s Rule 1925(b) statement).
In his brief, Appellant references three different allegedly objectionable
statements by the Commonwealth during closing argument: 1) ADA Shore
mentioned that the plea negotiations were done with the victims’ families’
approval, contrary to the record; 2) ADA Shore repeatedly injected himself
into the case by describing his interaction with the victims’ families, and law
enforcement at the crime scene investigation; and 3) ADA Shore’s statement
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to the jury that “Nobody can make you take another human life,” which
Appellant contends contradicted the law and the charging instruction for
duress in Pennsylvania. Appellant’s Brief at 78–79.
Contrary to his assertion that his “objection was sustained with no
curative instruction,” Appellant did not object to any of these three purported
statements at trial, either immediately after they were spoken or at the
conclusion of the Commonwealth’s summation. Similarly, the record is void
of a defense request for a curative instruction or a mistrial request regarding
these statements. An appellant’s brief must contain a statement of place of
raising or preservation of issues. Pa.R.A.P. 2117(c). This statement must
specify the point in the proceedings at which the claims were preserved. Id.
at (1). Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007).
Finally, Appellant failed to specifically reference these three claims in his
Pa.R.A.P. 1925(b) statement, thereby depriving the trial court of any
meaningful opportunity to review them in its Pa.R.A.P. 1925(a) opinion. For
these reasons, appellate review of this issue is foreclosed.
For all of the above reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judge Strassburger did not participate in the consideration or decision
of this case.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:4/30/21
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Com. v. Kratz, S.
Combined Opinion