Commonwealth v. Stallworth

SAYLOR, Justice,

concurring and dissenting.

I join in the result reached by the majority in terms of affirming the conviction and remanding for a new sentencing hearing; however, I do not agree that the victim’s statements contained in the PFA application were admissible, and I view the evidence that Appellant was aware of the PFA order as sufficient to create a question of fact to be resolved by the jury at the sentencing hearing.

I. PFA Statements

The statements made by the victim in the PFA application, to the effect that Appellant had threatened to shoot and kill or otherwise harm her, would appear to be hearsay and therefore inadmissible unless they fall within an exception to the hearsay rule.1 The majority concludes, however, that the state*378ments are not hearsay because they were presented solely to show the victim’s state of mind, and not to prove the truth of the matter asserted (that Appellant threatened the victim with bodily harm on several occasions).

At the heart of this issue is the distinction between two types of statements which may serve as evidence of a declarant’s state of mind: 1) those which are not hearsay because they are not offered for the truth of the matter asserted; and 2) those which are hearsay because they are offered for their truth, but which are nevertheless admissible because they meet the requirements of the state of mind exception to the hearsay rule. See generally L. PACKEL AND A. POULIN, PENNSYLVANIA EVIDENCE § 801-4, 803(3)-l (2d ed.1999) [hereinafter “PACKEL AND POULIN, PENNSYLVANIA EVIDENCE”]; 2 MCCORMICK ON EVIDENCE §§ 269, 273-276 (5th ed.1999) [hereinafter “MCCORMICK ON EVIDENCE”]. In my view, failure to recognize this distinction has engendered considerable confusion in our decisional law and, for that reason, warrants discussion here, even though I would ultimately conclude that the issue does not entitle Appellant to relief.

A. Homicide

The Commonwealth contends that the victim’s statements were relevant to the murder charge because they revealed the victim’s perception of her relationship with Appellant and, inferentially, Appellant’s intent and motive. Use of the statements for this purpose is problematic, however. While Pennsylvania law permits the admission of evidence of prior incidents, within the context of a marital relationship as well as elsewhere, in which the accused threatened, assaulted, or quarreled with the decedent, for the purpose of proving ill will, motive, or malice, such evidence remains subject to the general rules of competency and relevance. See Commonwealth v. Ulatoski, 472 Pa. 53, 60-61, 63, 371 A.2d 186, 190, 191 (1977). *379Among the rules of competency is the hearsay rule. See Commonwealth v. Myers, 530 Pa. 396, 401, 609 A.2d 162, 165 (1992).

1. The Statements as Non-Hearsay

The Commonwealth argues that the statements in question were not hearsay relative to the homicide charge because they were not offered for their truth, but only to show the victim’s state of mind. Such an assertion, without more, would be fatal to the Commonwealth’s argument, since the victim’s state of mind (with narrow exceptions, discussed infra) is considered irrelevant to a murder prosecution. See Laich, 566 Pa. at 27, 777 A.2d at 1061; Commonwealth v. Auker, 545 Pa. 521, 547, 681 A.2d 1305, 1319 (1996) (citing Commonwealth v. Thornton, 494 Pa. 260, 431 A.2d 248 (1981)); see also Woods v. State, 733 So.2d 980, 987 (Fla.1999) (observing that “a homicide victim’s state of mind prior to the fatal event generally is neither at issue nor probative of any material issue raised in the murder prosecution”). To overcome this obstacle, the Commonwealth contends, and the majority agrees, that the victim’s state of mind, as revealed by the purportedly non-hearsay statements, was evidence of the contentious state of the marital relationship, and, in turn, the malice which the victim perceived in the relationship was probative of Appellant’s intent and motive.

There are circumstances in which a person’s out-of-court assertion may be relevant to his or her state of mind even though it is patently untrue. See, e.g., MCCORMICK ON EVIDENCE § 274 (suggesting, as an example, when an individual whose sanity is at issue is heard to proclaim, “I am King Henry the Eighth”). This is not such a case. The victim’s PFA statements shed no light upon Appellant’s motive or intent unless they are considered as evidence, not merely of the victim’s mental impressions, but of Appellant’s actual conduct. Only if it is assumed that the assertions made in the PFA application are true, and that Appellant had indeed threatened the victim with harm in the past, do those asser-

*380tions reveal anything about Appellant’s subsequent intent and motive.

In sum, the Commonwealth cannot credibly argue both relevance and non-hearsay. See Gordon Van Kessel, Hearsay Hazards in the American Criminal Trial: An Adversary-Oriented Approach, 49 HASTINGS L.J. 477, 537 n. 250 (Mar. 1998) (describing such an approach as “merely a circuitous way of using the statement to prove defendant’s conduct”). To conclude otherwise is to ignore the distinction between “non-hearsay statements which circumstantially indicate a present state of mind regardless of their truth, and hearsay statements which indicate a state of mind because of their truth.” Christine Arguello, The Marital Discord Exemption to Hearsay: Fact or Judicially Created Fiction?, 46 U. KAN. L. REV. 63, 79 (Nov.1997) [hereinafter, “Arguello, The Marital Discord Exemption ”] (quoting Betts v. Betts, 3 Wash.App. 53, 473 P.2d 403, 407 (1970)). If the victim’s statements were to be in any way relevant, they had to be offered for their truth, and therefore they were hearsay, inadmissible unless encompassed by the state of mind or other exception to the hearsay rule.2

2. The Statements as Hearsay

Courts of other jurisdictions have generally ruled against the admissibility, within the state of mind exception to the hearsay rule, of evidence of the defendant’s prior threats against the victim. As the Court of Appeals for the District of Columbia explained in United States v. Brown, 490 F.2d 758 (D.C.Cir.1973), a statement by the victim which inferentially implicates the defendant, even if introduced solely for the *381purpose of showing the victim’s state of mind and accompanied by a limiting instruction to that effect, entails the risk of severely prejudicing the defendant.

While such statements are admittedly of some value in presenting to the jury a complete picture of all the facts and circumstances surrounding the homicide, ... [they] are fraught with inherent dangers and require the imposition of rigid limitations. The principal danger is that the jury will consider the victim’s statement of fear as somehow reflecting on defendant’s state of mind rather than the victim’s— i.e., as a true indication of defendant’s intentions, actions, or culpability. Such inferences are highly improper and where there is a strong likelihood that they will be drawn by the jury the danger of injurious prejudice is particularly evident.

Id. at 765 (footnotes and citations omitted). McCormick has specified the dangers arising from such statements: “[t]he possibility of overpersuasion, the prejudicial character of the evidence, and the relative weakness and speculative nature of the inference ....” MCCORMICK ON EVIDENCE § 276.3

The root of these dangers, as various commentators have noted, is that statements of prior threats have but a tenuous connection to the “underlying components of trustworthiness” which form the premise for admitting state of mind evidence. See Reagan F. McClellan, Note, State v. Alston: North Carolina Continues to Broaden Its Mind to Admissibility of a *382Victim’s Out-of-Court Statements Under the Rule 803(8) Hearsay Exception in Criminal Cases, 32 WAKE FOREST L. REV. 1327, 1356 (1997) [hereinafter “McClellan, State v. Alston ”]; Arguello, The Marital Discord Exemption, at 76. The principal component of the trustworthiness of state of mind evidence is its spontaneity and the resulting probability that, being spontaneous, it is also sincere. See McClellan, State v. Alston, at 1356; MCCORMICK ON EVIDENCE § 274. A victim’s statements concerning threats previously made by the defendant, in contrast, constitute “statements of the victim’s memory about the past, not statements of her then-existing state of mind.” Cole v. State, 307 Ark. 41; 818 S.W.2d 573, 577 (1991); see also State v. Bell, 950 S.W.2d 482, 484 (Mo.1997) (en banc) (declaring that the victim’s hearsay testimony concerning past abuse “was not a declaration of her state of mind[, but instead] was pure narration of past acts by another”). That such statements look to the past rather than the present lessens their trustworthiness. See Commonwealth v. Fletcher, 561 Pa. 266, 304, 750 A.2d 261, 282 (2000) (Saylor, J., concurring), cert. denied, 531 U.S. 1035, 121 S.Ct. 623, 148 L.Ed.2d 533 (2000); McClellan, State v. Alston, at 1356. So, too, does the victim’s use of narration. See Brown, 490 F.2d at 775. The more closely the evidence bears upon the fundamental question of the defendant’s guilt or innocence, and the more narration of the defendant’s past acts is included in the evidence, the greater the risk of prejudice. See id. at 766, 775; see also Arguello, The Marital Discord Exemption, at 76 (asserting that such evidence “presents all of the traditional hearsay dangers because the victims’ memories, perceptions, and sincerities cannot be tested”).

As a result of these concerns, courts have generally limited the admissibility of statements such as those at issue here to situations' in which the victim/declarant’s mental state is directly at issue in the case. See, e.g., Bell, 950 S.W.2d at 483. Most commonly, courts permit the use of extrajudicial statements by the victim when the defendant has alleged that he acted in self-defense or that the death was the result of suicide or accident. See Woods, 733 So.2d at 987; State v. Bauer, 598 *383N.W.2d 352, 367 (Minn.1999). In such instances, the increased relevancy of the evidence may outweigh the possibility of prejudice. See Brown, 490 F.2d at 767.4

None of the above circumstances was present in this case. To the contrary, the ultimate purpose for which the Commonwealth offered the victim’s statements — to serve as evidence of Appellant’s intent and motive — is precisely the purpose that is generally considered impermissible. Nevertheless, the Commonwealth argues, and the majority concludes, that the decisional law of Pennsylvania permits the admission of such evidence.

There is some support for the Commonwealth’s position. See Commonwealth v. Fletcher, 561 Pa. 266, 293-94, 750 A.2d 261, 275-76 (2000) (holding that the victim’s assertion that he had used a package of drugs belonging to the appellant was admissible under the state of mind exception as evidence of the appellant’s motive); Commonwealth v. Chandler, 554 Pa. 401, 411, 721 A.2d 1040, 1045 (1998) (holding similarly); Commonwealth v. Collins, 550 Pa. 46, 58-60, 703 A.2d 418, 424-25 (1997) (holding similarly), cert. denied, 525 U.S. 1015, 119 S.Ct. 538, 142 L.Ed.2d 447 (1998); see also Commonwealth v. Puksar, 559 Pa. 358, 368, 740 A.2d 219, 225 (1999) (holding that similar evidence was admissible as non-hearsay, as it was offered to establish the appellant’s motive and not for its truth), cert. denied, 531 U.S. 829, 121 S.Ct. 79, 148 L.Ed.2d 42 (2000).

*384There is case law supporting the contrary position as well. In Myers, the trial court admitted out-of-court statements by the victim that the appellant/husband had beaten her on several occasions. See Myers, 530 Pa. at 399, 609 A.2d at 164. This Court reversed, observing that, while evidence concerning the relationship between the victim and the appellant was relevant to prove the appellant’s malice and motive, such evidence remained subject to the general rule of competency. See id. at 400, 609 A.2d at 165. The Court specifically held that there is no special exception to the hearsay rule for statements regarding marital relationships and that such testimony was not subject to a relaxed standard of admissibility. See id. at 401, 609 A.2d at 165. Finding that no hearsay exception applied, the Court ruled that admission of the statements had been error. See id.5 See also Thornton, 494 Pa. at 264-65, 431 A.2d at 250-51 (reasoning that the victim’s statement, that he was carrying a gun because he feared the appellant, was inadmissible under the state of mind exception because, to be probative of the appellant’s intent, the statement had to be considered for its truth, and, thus considered, it was hearsay not within any exception).6

In sum, this Court’s decisional law concerning the state of mind exception is inconsistent. In my view, such inconsistency should be resolved by avoiding the expansion of the state of mind exception in the context of assertions by the victim concerning the status of his or her pre-existing relationship with the defendant. To do otherwise, as I have previously suggested, is to risk the “traditional hearsay dangers of fabrication, faulty memory and incorrect narration[,]” Fletcher, 561 Pa. at 304, 750 A.2d at 281 (Saylor, J., concurring), and, *385in addition, the possibility that the hearsay exception will consume the rule, see id.7

Moreover, only a conservative interpretation of the state of mind exception, in my view, will comport with the understanding of the exception expressed in our recently adopted Rules of Evidence.8 Specifically, Rule 803(3) (“Then Existing Mental, Emotional, or Physical Condition”) lifts the hearsay bar for:

[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health. A statement of memory or belief offered to prove the fact remembered or believed is included in this exception only if it relates to the execution, revocation, identification, or terms of declarant’s will.

Pa.R.E. 803(3). Because the assertions contained in the PFA application recite threats made by the defendant in the past, they are statements of memory, which, except in will contests, are inadmissible under Rule 803(3).

Accordingly, I would find that the victim’s statements were not admissible to establish Appellant’s intent or motive (the purpose for which the trial court instructed the jury to consid*386er them). I would find their admission harmless, however, as the jury learned of Appellant’s prior threats against the victim through the testimony of various witnesses. Cf. Laich, 566 Pa. at 28, 777 A.2d at 1062 (rejecting harmless error analysis where, inter alia, the appellant’s state of mind was at issue, and the challenged hearsay testimony was the only evidence of the appellant’s prior threats to kill the victim). It is on this basis, therefore, that I join the majority’s disposition of this issue.

B. Burglary

To convict Appellant of burglary, the Commonwealth was required to prove, inter alia, that Appellant had entered the victim’s residence while not licensed or privileged to do so. See 18 Pa.C.S. § 3502. The relevance to that element of the burglary offense of evidence of the victim’s state of mind, and in particular her willingness, vel non, to allow Appellant to enter her home, is readily apparent. Nevertheless, the backward-looking assertions contained in the PFA application are no more endowed with the components of trustworthiness in this context than in the previous one. In addition, their marginal probative value may be even less, as they merely supplement the fact that the victim applied for a PFA order against Appellant the day before the murder — in itself, powerful evidence that she would not have been inclined to allow him into her home the next day. Accordingly, I would find that the victim’s statements should not have been admitted because their prejudicial effect was greater than their probative value, see Pa.R.E. 403, but that their admission was harmless given the properly admitted evidence of the prior threats.

II. Aggravating Circumstance

I also agree with the majority’s conclusion that the aggravating circumstance relating to the existence of a PFA order is not applicable unless the defendant has been given actual notice of the . order or possesses equivalent knowledge of its terms. Contrary to the majority’s determination that there was no evidence that Appellant had knowledge of the PFA *387order, however, I would find that sufficient evidence was presented by the Commonwealth to create a question of fact for the jury as to whether Appellant was aware of the court order restricting his contact with the victim.

The Commonwealth offered substantial evidence of Appellant’s awareness of the order, including: the testimony of Appellant’s girlfriend, Evelyn Weidman, indicating that she had discussed the implications of a PFA order with Appellant on the night prior to the murder; Weidman’s further testimony that she had overheard a telephone conversation between Appellant and the victim discussing an order against him; and the transcript of the telephone conversation between Appellant and the police in which he acknowledged the existence of a court order restricting his right to see his daughter. Accordingly, upon remand for a new sentencing hearing, I would permit the Commonwealth to present the evidence indicating that Appellant knew he was subject to the PFA order and would require the court to issue proper instructions to the jury indicating the circumstances under which it could find the existence of this aggravating factor.

Mr. Justice NIGRO joins this concurring and dissenting opinion.

. To be precise, these statements would constitute double hearsay: Appellant allegedly made verbal threats to the victim, and the victim repeated the threats to the PFA court. See generally Commonwealth v. Laich, 566 Pa. 19, 777 A.2d 1057 (2001). Appellant's statements to the victim are admissible as party admissions. See id. at 24, 777 A.2d at *3781060; Commonwealth v. Chmiel, 558 Pa. 478, 504, 738 A.2d 406, 420 (1999) , cert. denied, 528 U.S. 1131, 120 S.Ct. 970, 145 L.Ed.2d 841 (2000) . The more difficult issue, discussed infra, involves the admissibility of the victim’s statements to the PFA court.

. The Commonwealth suggests that the evidence in question should be considered reliable because it was contained in a sworn statement. Notably, however, Pennsylvania has not adopted the hearsay exception for public records and reports, see Pa.R.E. 803(8), or the residual exception, see Pa.R.E. 803(24). Although Section 6104 of the Judicial Code provides a hearsay exception for public records, the statute refers to "a record of governmental action or inaction," 42 Pa.C.S. § 6104(a), and “a record ... disclosing the existence or nonexistence of facts which have been recorded pursuant to an official duty ...," 42 Pa.C.S. § 6104(b). Thus, a PFA application, even though verified, would not come within the purview of Section 6104.

. A minority of jurisdictions permit the use of statements indicating "ill will” between the defendant and the victim on the theory that such statements are sufficiently probative of the defendant’s intent and motive to overcome the likelihood of unfair prejudice to the defendant. See State v. Alston, 341 N.C. 198, 461 S.E.2d 687, 704 (1995) (rejecting the “strict rule” of Brown, and holding that the murder victim’s statements were properly admitted "pursuant to the state of mind exception to the hearsay rule to show the nature of the victim’s relationship with the defendant”), cert. denied, 516 U.S. 1148, 116 S.Ct. 1021, 134 L.Ed.2d 100 (1996); see also State v. Mayberry, 248 Kan. 369, 807 P.2d 86, 99 (1991) (holding that the murder victim’s statements were not inadmissible hearsay because they were not introduced to prove the truth of the matter asserted, but to show the victim’s state of mind and the discordant nature of her relationship with the defendant). These decisions have been roundly criticized. See infra.

. As the Brown court explained:

When [self-defense] is asserted, a defendant’s assertion that the deceased first attacked him may be rebutted by the extrajudicial declarations of the victim that he feared the defendant, thus rendering it unlikely that the deceased was in fact the aggressor in the first instance.... [W]here defendant seeks to defend on the ground that the deceased committed suicide, evidence that the victim had made statements inconsistent with a suicidal bent are highly relevant. A third situation involves a claim of accidental death .... In such cases the deceased's statements of fear ... (showing he would never go near defendant under any circumstances) are relevant in that they tend to rebut this defense.

Id. at 767 (footnotes omitted).

. The majority's reliance upon Myers to support the admission of the statements in this case is misplaced. See Majority Opinion, at 118. While Myers holds that evidence of previous discord in the marital relationship may be relevant to prove motive, it clearly states that such evidence is subject to hearsay restrictions. See id. at 401, 609 A.2d at 164-65.

. Arguably the Thornton Court's analysis did not accurately reflect the facts of the case: since the appellant had argued self-defense and provocation, see id. at 262, 431 A.2d at 249, the statement may have been admissible as evidence of the victim's state of mind.

. More than one commentator has rioted that a great many homicides involve a victim/defendant relationship of some kind, and, once homicide has ensued, the argument is easily made that the status of the relationship is relevant to the defendant’s intent and motive. See McClellan, State v. Alston, at 1355; Arguello, The Marital Discord Exemption, at 64. Recognizing this danger, the United States Supreme Court has observed that:

[d]eclarations of intention, casting light upon the future, have been sharply distinguished from declarations of memory, pointing backwards to the past. There would be an end, or nearly that, to the rule against hearsay if the distinction were ignored.

Shepard v. United States, 290 U.S. 96, 106, 54 S.Ct. 22, 26, 78 L.Ed. 196 (1933).

. The Rules of Evidence went into effect on October 1, 1998, applicable to all trials, hearings, and proceedings beginning on or after that date. As the hearing on Appellant’s suppression motion was not held until January 5, 1999, and the jury trial commenced immediately thereafter, the Rules of Evidence are controlling. Moreover, Rule 803(3) was assumed to be consistent with the existing decisional law. See Pa.R.E. 803(3) cmt.