HomeMy WebLinkAbout95-0794 criminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v. NO. 95-0794 CRIMINAL
CHARGE: CRIMINAL HOMICIDE:
FIRST DEGREE MURDER
MARK NEWTON SPOTZ AFFIANT: DET. JOHN SANCENITO
IN RE: DEFENDANT'S APPEAL
ORDER OF COURT
AND NOW, April 16, 1999, after review of Defendant's Statement of Matters
Complained of on Appeal and careful consideration of briefs submitted by
defendant and the Commonwealth, defendant's conviction and sentence are
upheld.
By the Court,
M.L. Ebert, Jr., Esquire
Cumberland County District Attorney
For the Commonwealth
Taylor P. Andrews, Esquire
Cumberland County Chief Public Defender
For the Defendant
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v. : NO. 95-0794 CRIMINAL
CHARGE: CRIMINAL HOMICIDE:
FIRST DEGREE MURDER
MARK NEWTON SPOTZ : AFFIANT: DET. JOHN SANCENITO
IN RE: DEFENDANT'S APPEAL
OPINION
HOFFER, J.:
In this opinion, we address the appeal of defendant Spotz. After a trial held
in May of 1996 in Cumberland County, defendant was found guilty and sentenced
to death for criminal homicide. The circumstances surrounding his conviction are
as follows:
On January 31, 1995, in Clearfield County, defendant's brother, Dustin
Spotz, was shot and killed during the course of an argument with the defendant.
Early in the morning of February 1, 1995, defendant and Christina Noland, a
teenage girlfriend, arrived in Schuylkill County where defendant robbed, shot and
murdered June Ohlinger and took her car. The same day, Noland and the
defendant traveled to Rehoboth Beach, Delaware. Early the next morning,
February 2, 1995, Noland and the defendant entered York County where
defendant shot and murdered Penny Gunnet. Noland left the defendant in York
and returned to Altoona. The bodies of Ohlinger and Gunnet were found on or
about February 1 and 2, 1995.
Defendant left York and traveled to Harrisburg. The record reflects that
NO. 95-0794 CRIMINAL
defendant was seen in Harrisburg by an acquaintance, Juan Maldonado, between
9:00 and 11:00 a.m., on February 2, 1995. Defendant was later spotted by another
Harrisburg acquaintance, Anton Bland, at about 2:00 p.m. Betty Amstutz, the
victim, was a Harrisburg resident and a regular shopper at Allen's Market in
Harrisburg. Greg Allen, the store owner, testified that Mrs. Amstutz completed her
shopping at 3:16 p.m. the same afternoon. It is believed that the defendant
encountered Mrs. Amstutz as she was unpacking her groceries at her home.
When the coroner entered her home after her body had been found, bags of
groceries, including perishables, had not been put away.
At 3:58 p.m., Mrs. Amstutz and the defendant were waited on by Stephanie
Mason while they cashed one of Mrs. Amstutz's checks for $500, at a Harrisburg
branch of Dauphin Deposit Bank. Defendant then took Mrs. Amstutz to Dunham's
Sporting Goods in Mechanicsburg. At 4:55 p.m., Ryan Neumyer worked the cash
register while Mrs. Amstutz purchased Orlando Magic merchandise costing
$262.05 with her VISA card. The defendant and Mrs. Amstutz proceeded to the
Dauphin Deposit Bank Camp Hill branch, where their teller, Donna Sellers,
recognized Mrs. Amstutz as a regular customer. At that bank, they cashed another
check for $1,1 39.95.
At 6:04 p.m., Mrs. Amstutz and the defendant checked into the Knight's Inn
NO. 95-0794 CRIMINAL
in Carlisle. Mrs. Amstutz signed in and paid for the room. At about 6:30 p.m. two
witnesses, Ella Hockenberry and her daughter Jennifer, saw what appeared to be
a white man standing next to a car, matching the description of Mrs. Amstutz's car,
near the bridge over the Conodoguinet Creek on McClure's Gap Road.
A number of witnesses reported seeing the defendant, carrying a gun, in the
Carlisle area later that evening and into the early morning hours of February 3,
1995. At about 7:30 a.m., February 3, 1995, Mrs. Amstutz's car was stopped by
local police. Melissa Kiner, a friend of the defendant, was driving. At
approximately 8:00 a.m., Detective John Sancenito, after receiving a report from
a work crew, found the body of Betty Amst[Jtz, dead from gunshot wounds, just off
McClure's Gap Road near the Conodoguinet Creek bridge.
At 9:00 a.m., February 3, 1995, the State Police surrounded the defendant's
room at the Knight's Inn. Defendant threw his gun from the room and was
arrested. At trial, Pennsylvania State Police Corporal James Rottmund matched
the gun, by ballistic testing, to the killings in Clearfield, Schuylkill, York and
Cumberland Counties. Blood was found on a sneaker defendant was wearing at
the time of his arrest. DNA tests were conducted on blood from the shoe and
samples from the defendant, Christina Noland, Dustin Spotz, Penny Gunnet, June
Ohlinger and Betty Amstutz. Only Betty Amstutz could not be eliminated as the
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NO. 95-0794 CRIMINAL
person from whom the blood came.
Detective Sancenito did a follow up search of defendant's room at the
Knight's Inn. He found, tucked above a ceiling panel, a pair of pants stained with
blood, a knife, and a plastic bag containing a number of small items. A note,
authenticated as being in the defendant's handwriting, was found in the bag. The
note listed the money defendant had collected and spent that day. The note
--' concluded with "a good day's work'! written and circled at the bottom.
Detective Sancenito served the defendant with a warrant for the Cumberland
County crime at District Justice Reilly's office in Schuylkill County. At the time
defendant volunteered that he had never been to McClure's Gap Road. The
detective conducted a search of local District Justice records in Cumberland
County and found that the defendant had previously received a non traffic citation
on McClure's Gap Road, and evidence to that effect was presented.
Charges were filed against the defendant for the killings in Clearfield,
Schuylkill, York and Cumberland Counties. Defendant was convicted of each of
the killings in separate tdals held in Clearfield, Schuylkill and York counties,
receiving a sentence of death in Schuylkill and York counties. Defendant's final
trial was held in Cumberland County in May of 1996. On May 15, 1996, defendant
was convicted for the murder of Betty Amstutz. The jury sentenced him to death
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NO. 95-0794 CRIMINAL
on May 17, 1996. Defendant now appeals. Defendant's issues of appeal will be
addressed in the order presented.~
DISCUSSION
Subiecting Defendant to Multiple Capital Murder Trials
Defendant claims that the Court erred when it denied his pre-trial motion to
consolidate his three capital murder trials scheduled for Schuylkill, York and
Cumberland Counties and when the Court denied his motion to dismiss after
defendant was tried and convicted in both Schuylkill and York Counties. Defendant
relies on Commonwealth v. McPhail, 547 Pa. 519, 692 A.2d 139 (1997).
Defendant's reliance is misplaced because the factual scenario in McPhail is
clearly distinguishable from the case sub judice.
In Pennsylvania, a multitude of offe. nses which constitute a single criminal
episode must be tried together, pursuant to 18 Pa. C.S.A. Section 110. See
Commonwealth v. McPhail, 547 Pa. 519, 521,692 A.2d 139, 140 (1997). Section
110 was designed to serve two policy considerations: (1) to protect a person from
government harassment by being forced to undergo multiple criminal trials for
crimes stemming from a single criminal episode; and (2) to promote judicial
~ In his Statement of Matters Complained of on Appeal, defendant claims that
the Court erred when it failed to give an instruction on second degree murder.
Defendant did not brief this issue. Under local rules, any issue raised but not bdefed is
deemed abandoned. C. C. R. P. 210-7.
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NO. 95-0794 CRIMINAL
economy and assure finality without overburdening the judicial process with
repetitive litigation. Commonwealth v. Hude, 500 Pa. 482,489, 458 A.2d 177, 180
(1983)(holding that defendant who was charged with more than twenty counts in
connection with selling drugs to the same individual over a course of months could
not be tried a second time on remaining charges after a first trial of nine charges
was dismissed). The test to determine if subsequent prosecutions are prohibited
is: (1) if the former prosecutions resulted in an acquittal or prosecution; (2) if the
current prosecution is based on the same criminal conduct or arose from a single
criminal episode; (3) whether the prosecutor was aware of the instant charges
before the trial of the former charges was 'commenced; and (4) if both the instant
charges and the former charges were within the jurisdiction of a single court.
Commonwealth v. Bracalielly, 540 Pa. 460, 470, 658 A.2d 755, 760 (1995).
In McPhail, a defendant sold drugs to an undercover officer in Washington
and Allegheny Counties, charges were filed in both counties, defendant pled guilty
in Washington County and moved successfully to dismiss the charges in Allegheny
County based upon 18 Pa. C.S.A. Section 110. Commonwealth v. McPhail, 547
Pa. 519, 692 A.2d 139 (1997). The Pennsylvania Supreme Court upheld the
Allegheny County trial court decision because the charges were "logically and
temporally related and share common issues of law and fact" and because the
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NO. 95-0794 CRIMINAL
first court, Washington County, had jurisdiction over all of the charges. Id.
Defendant, in the case at bar, undertook a far different course of action. He
was not a drug dealer involved in a series of drug deals that crossed county lines.
He was not the subject of an ongoing investigation for drug activity regardless of
his location. The defendant was involved in four separate killings, in four separate
counties. After each death he moved on to a new location. Subsequent killings
occurred as defendant attempted to avoid prosecution and each incident was a
separate criminal act. As each killing occurred, law enforcement in the
corresponding county sprung into action. No one followed the defendant from
county to county in an attempt catch 'him. Each county started its own
investigation when the bodies were discovered. Clearly, defendant's killings were
not a single criminal episode but four seParate incidents. No error was committed
when defendant was subjected to separate criminal trials for each killing.
Admission of Defendant's Other Crimes
Defendant claims that the Court erred in admitting evidence of his prior
killings and crimes in Clearfield, Schuylkill, and York Counties. Defendant asserts
that he was unfairly prejudiced because 43% of the Commonwealth's witnesses
testified about defendant's crimes in other counties. Defendant is wrong.
The admissibility of evidence is a matter within .the sound discretion of the
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NO. 95-0794 CRIMINAL
trial court and an appellate court may only reverse upon a finding that the trial
court abused its discretion. Commonwealth v. Billa, 521 Pa. 168, 177, 555 A.2d
835, 840 (1989)(holding that, although evidence of prior crimes was properly
admitted, conviction must be overturned because jury did not receive required
instruction explaining the limited purpose for which the evidence was admissible).
As a general rule, evidence of a defendant's prior crimes is not admissible to prove
bad character or propensity to commit criminal acts, but numerous exceptions do
exist..!d.. Some of the bases which permit evidence of a defendant's other crimes
to be admissible, as recognized by the Pennsylvania Supreme Court, are: (1)
motive; (2) intent; (3) absence of mistake dr accident; (4) a common scheme; (5).
to establish identity; (6) to impeach the credibility of a defendant who testifies at
his own trial; (7) situations where a defendant's prior criminal history was used by
him to threaten or intimidate the victim; and (8) the "res gestae exception" which
allows crimes to be admissible to show the natural development and complete
story of the case. Id. When one of the exceptions is applicable, making the
evidence of prior crimes relevant, the evidence is admissible if not used "merely
to prejudice the defendant by showing him to be a person of bad character."
Commonwealth v. Lark, 518 Pa. 290, 302, 543 A.2d 491,497 (1988). In essence,
this Court is required to balance the relevancy of the evidence against its
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NO. 95-0794 CRIMINAL
prejudicial effect on the defendant.
In the case at bar, the admittance of evidence of defendant's prior killings
and crimes in Clearfield, Schuylkill, and York Counties falls within an accepted use
as set out in Billa. Admission of defendant's other crimes was proper to show
motive and intent. Defendant commenced his crime spree in Clearfield County by
killing his brother, he then moved on to Schuylkill, York and Cumberland Counties,
killing and robbing women in an attempt to avoid apprehension for his initial
criminal act. Defendant was not unfairly prejudiced by the admission of his prior
crimes because their evidentiary value, as a showing of defendant's motive and
intent, outweighed any possible prejudice' he suffered. Evidence of defendant's
other crimes committed in other counties was properly admitted to show
defendant's motive and intent for killing Betty Amstutz in Cumberland County.
Additionally, evidence of other crimes may be admissible where such
evidence is part of the natural sequence or complete story of the case.
Commonwealth v. Lark, 518 Pa. 290, 303, 543 A.2d 491, 497 (1988). Cleady,
defendant's crimes committed in Clearfield. Schuylkill, and York Counties were
relevant and admissible to show the complete story of his crime spree and attempt
to avoid capture. Defendant suffered no undue prejudice and no error occurred in
allowing the jury to hear about defendant's separate criminal acts as he moved
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NO. 95-0794 CRIMINAL
from county to county attempting to avoid the police.
Admission of Witness Statements
Defendant next challenges the Court's refusal to suppress the eyewitness
testimony of Ryan Neumyer, Stephanie Mason, Donna Sellers, and Samantha
Zaengle. Defendant claims that the testimony of Ryan Neumyer, Stephanie Mason
and Donna Sellers was impermissibly tainted by pretrial media coverage.
Defendant also asserts that the Court committed error by admitting the
identification testimony of Samantha Zaengle without first subjecting it to a pretrial
suppression hearing.
If an identification is impermissibly suggestive, the potential for
misidentification arises and a due process violation occurs if the identification is
admitted into evidence at trial. Commonwealth v. McGahey, 510 Pa. 225, 228, 507
A.2d 357, 359 (1986). "Thus, an in-court identification following a suggestive out
of court identification will be admissible only if, considering the totality of the
circumstances, it is determined that the in-court identification had an origin
sufficiently distinguishable to be purged of the primary taint." Commonwealth v.
Carter, 537 Pa. 233, 253, 643 A.2d 61, 71 (1994), cert. denied, _ U.S. _, 115 S.
Ct. 1317, 131 L. Ed. 2d 198 (1995). This rule requires a court to find an
independent basis for the identification. The factors used in determining whether
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NO. 95-0794 CRIMINAL
an independent basis exists are: (1) the opportunity of the witness to view the
criminal; (2) the witness's degree of attention; (3) the accuracy of the witness's
prior description of the criminal; (4) the level of certainty demonstrated by the
witness at the confrontation; and (5) the length of time between the crime and the
confrontation. Carter at 253-54, 643 A.2d at 71.
No error occurred when the testimony of Ryan Neumyer was admitted into
evidence. Neumyer's identification of the defendant was based solely on his
personal encounter with the defendant. Neumyer, a clerk at Dunham's Sporting
Goods, waited on the defendant and the victim as they purchased a large amount
of Orlando Magic merchandise. Neumye'r placed particular significance on the
transaction because it was not an ordinary sale. Neumyer remembered the
Orlando Magic merchandise, the large size of the sale and the fact that a young
man, the defendant, paid with the VISA card of an elderly woman, the victim.
Neumyer had a clear view of the defendant during the transaction. He was able
to provide these details and give an accurate description of the defendant to the
police. At the pretrial hearing, Neumyer was definite in his identification of the_
defendant and the fact that he remembered the defendant from the personal
encounter at the Dunham's checkout counter, not from media coverage. At trial,
his testimony remained consistent. Under these circumstances, it is clear that
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NO. 95-0794 CRIMINAL
although Neumyer did see the defendant in the media, his testimony had an
independent basis and was correctly admitted.
Stephanie Mason, a bank teller, was permitted to give an in-court
identification of the defendant based upon her personal encounter with the
defendant and the victim during a bank transaction on February 2, 1995. Mason
had ample opportunity to view the defendant in the driver's seat of the victim's car,
two or three feet from her teller window. Mason remembered the name "Betty" on
the $500 check the defendant was cashing with the victim and Mason noted that
the defendant, not Mrs. Amstutz, answered that he wanted large bills when Mason
asked the victim how she wanted her casl'i back. Mason was positive about her
identification, even noticing that the defendant had a lot less hair at the time of the
confrontation. When Mason saw the defendant's picture on the television news,
she recognized him as the man she had seen at the bank. Her recollections and
bases for identifying the defendant were independent of her view of him on the
television news and, therefore, were properly admitted.
Donna Sellers, another bank teller, identified the defendant at trial. Like
Stephanie Mason, Sellers cashed one of the victim's checks for the defendant.
Sellers was at her teller window, just a few feet from the defendant who was in the
driver's seat of the victim's car. The $1000 check was memorable because it was
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NO. 95-0794 CRIMINAL
over a "certain limit" and Sellers required authorization to cash it. Sellers also
remembered the name "Betty ^mstutz". Sellers' testimony remained certain and
consistent that the defendant was the man she saw through her teller window.
Media coverage did not impermissibly affect the independent basis for Sellers'
identification of the defendant, and no error was committed when she was allowed
to testify.
Defendant argues that Samantha Zaengle should not have been permitted
to testify at trial because her identification of the defendant was not subjected to
a pretrial suppression hearing. The subject of defendant's suppression motion was
witnesses whose identifications could hav(~ been influenced by media coverage of
defendant's crimes, not all witnesses who could identify him. Zaengle had an
independent basis for identifying the defendant because she was familiar with both
the defendant and his brother in the past. Due to her prior contact with the
defendant, Zaengle was able to recognize him at the 720 Bar. Media coverage did
not affect her independent ability to identify the defendant. Zaengle's identification
testimony was properly admitted.
All four of these witnesses had independent bases for identifying the
defendant. Each had ample opportunity to view the defendant. The
Commonwealth met its burden of proving by clear and convincing evidence that
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NO. 95-0794 CRIMINAL
there was no impermissible taint of the identifications. No error was committed
when each of the witnesses was permitted to testify.
Admission of "Enhanced" Bank Security Photo._qraph~
Defendant claims that the Court erred in admitting "enhanced" bank security
photographs taken from surveillance videotape because no witness authenticated
the accuracy of the photographs' depiction of the occupants of the car? The
photographs in question are part of Exhibits 96 and 97, admitted at trial.
A photograph may be admitted into evidence if it is properly authenticated
by witness testimony asserting that the photograph is a fair and accurate depiction
of the scene. Commonwealth v. Rovinski, ~04 A.2d 1068, 1074 (Pa. Super. 1997),
alloc, denied, 1998 PA LX 1389 (1998).
In the case sub judice, Stephanie Mason and Donna Sellers, bank
employees, testified that the photographs were accurate depictions of the banks
and the areas around the teller windows. An FBI employee testified about the
validity of the process used to enhance the photographs taken from security
videotapes of the two banks defendant and the victim visited. Defendant never
2 Defendant does not challenge the admission of the photographs based upon
the fact that they are frames frozen and enhanced from a video tape. In Pennsylvania,
it is possible that photographs frozen from a videotape are the best evidence and should
be admissible. See Commonwealth v. Hindi, 429 Pa. Super. 169, 631-A.2d 1341 (1993).
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NO. 95-0794 CRIMINAL
claimed that the photographs were not authentic depictions of the two banks; he
merely argues that no one authenticated the fact that defendant and the victim
were pictured. Who is in the photograph is a question for the jury, going toward
the weight of the evidence. The jury had to decide if the photographs implicated
the defendant in the crimes charged.
The testimony of Stephanie Mason and Donna Sellers was sufficient to
authenticate the photographs. Given the reliability of the enhancement process
and the fact that the photographs were accurate depictions, no error occurred
when the photographs were admitted into evidence.
Refusal to Grant Defendant's Request for a Mistrial
Defendant claims that the Court erred when it refused his request for a
mistrial after the jury learned that he was o.n parole. Trooper Scott Miller testified,
on direct examination, that while the defendant was in custody, defendant asked
another officer if he would have to serve life plus the remaining time on his parole.
Immediately after the parole reference, a recess was taken and the defendant
requested a mistrial, pursuant to Pa. R. Civ. P. 1118(b). Although it was
impermissible for the jury to hear that the defendant was on parole, his request for
a mistrial was denied.
.The granting of a mistrial is an extreme remedy that is within the sound
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NO. 95-0794 CRIMINAL
discretion of the trial court. Commonwealth v. Montgomery, 533 Pa. 491,497, 626
A.2d 109, 112 (1993). A request for a mistrial should only be granted when the
effect of presenting inadmissible evidence to the jury is to deny a defendant a fair
trial. Commonwealth v. Montalvo, 434 Pa. Super. 14, 38, 641 A.2d 1176, 1188
(1994).
In the case at bar, the Court gave the jury a cautionary instruction after they
heard that defendant was on parole. The jury was told to disregard the witness's
statement because it had no bearing on this case. The reference to defendant
being on parole was not unduly prejudicial to him. The Court had already
determined that evidence of defendant's other crimes in Clearfield, Schuylkill and
York Counties was admissible. The jury already heard that the defendant was
possibly a violent criminal. The jury hearing that the defendant was on parole, then
being told to disregard that information, did not create an unfair trial. In light of
everything heard by the jury, it is clear that the defendant received a fair trial. As
an exercise of the Court's discretion, defendant's request for a mistrial was
properly denied.
Instructions to the Jury at the Guilt Phase of the Trial
Defendant asserts that the Court made a series of errors in instructing the
jury at the guilt phase of the trial. The errors claimed are: (1) the Court failed to
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NO. 95-0794 CRIMINAL
give a cautionary instruction on limited admissibility at the time evidence of
defendant's other crimes in Clearfield, Schuylkill, and York Counties was heard; (2)
the cautionary instruction, given in the general charge to the jury, emphasized the
uses forwhich the evidence was admissible rather than stressing the caution which
must accompany the use of the evidence; (3) the Court should not have instructed
the jury that defendant's prior crimes could be considered on the issue of malice;
and (4) the Court erred when it noted only a simple assault conviction of a
Commonwealth witness while instructing the jury on credibility.
Defendant's first two claims of error will be addressed together. In reviewing
jury instructions, the instructions must be iooked at as a whole. Commonwealth
v. Gibson, 547 Pa. 71, 91,688 A.2d 1152, 1162 (1997), cert. denied, _ U.S._, 118
S. Ct. 364,. 139 L. Ed.2d 284 (1997). "The trial court has broad discretion in its
phrasing of jury instructions so long as the instructions given adequately reflect the
law." Id.
"A limiting instruction may be given either as the evidence is admitted or as
part of the general charge." Commonwealth v. Covil, 474 Pa. 375, 384, 378 A.2d
841,845 (1977). A trial judge shall determine on a case by case basis whether
a limiting instruction is necessary at the time evidence is presented or can wait
until the general charge is given to the jury. Commonwealth v. Enders, 407 Pa.
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NO. 95-0794 CRIMINAL
Super. 201, 211, 595 A.2d 600, 605 (1991). A court should give a limiting
instruction at the time evidence is presented if there is substantial danger that the
jury will misuse the evidence without an accompanying limiting instruction. Id.
In Enders, the trial judge declined to give a limiting instruction when
evidence, admissible for a narrow purpose, was heard by the jury. Enders at 211,
595 A.2d at 606. Because so much evidence required the limiting instruction, the
trial judge believed that it would be most effective if given to the jury in the general
charge. Enders at 211-12, 595 A.2d at 606. The Pennsylvania Superior Court
found that the trial judge did not commit abuse of discretion, because his
determination was reasonable given the n'umber of witnesses and the volume of
evidence. Id._~.
Before trial in the case at bar, the suppression court determined that
evidence of defendant's prior killings in Clearfield, Schuylkill, and York Counties
was admissible to show motive, intent and identity. At trial, many witnesses were
scheduled to testify concerning these other crimes? Defendant requested a
limiting instruction and the Court told him it would be given at the appropriate time.
The Court asked for each side to submit a proposed limiting instruction. The Court
3 The Commonwealth presented a substantial number of witnesses who testified
about defendant's other crimes. If the cautionary instruction was given with each
witness, the jury could have been confused by repetitive instructions..
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NO. 95-0794 CRIMINAL
determined that the appropriate time to give the instruction was in the general
charge to the jury.
The charge given to the jury was lengthy. Its purpose was to make clear to
the jury that evidence of defendant's prior crimes had only limited admissibility.
The Court told the jury that "[e]vidence of other distinct crimes is not admissible
against him to show his bad character or propensity for committing criminal acts."
(Notes to Testimony, hereinafter N.T., Vol. IX, p. 1553.) The Court used more time
to explain the purpose for which the evidence was admissible. The Court formed
an overall charge to reflect the relevant law. No abuse of discretion was
committed when the Court chose the phrasing and timing of its instruction on the
limited admissibility of the evidence of defendant's prior crimes because the
charge, taken as a whole, adequately reflected the law.
Defendant's third contention is-that the Court erred when it instructed the jury
to consider defendant's prior crimes on the issue of malice in the Cumberland
County crime. "In order to convict a defendant of murder of the first degree, the
Commonwealth must prove beyond a reasonable doubt that (1) the defendant has
killed another (2) willfully, deliberately and with premeditation (otherwise referred
to as malice), and (3) without lawful justification. Commonwealth v. Carbone, 524
Pa. 551,560, 574 A.2d 584, 588 (1990).
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In the case at bar, hearing of the defendant's prior crimes could have caused
the jury to conclude that the defendant acted with premeditation and malice when
the killing of Betty Amstutz occurred. Defendant's prior crimes demonstrate his
willful and deliberate behavior in attempting to avoid capture. No error occurred
when the Court instructed the jury on malice because malice is an element
necessary to prove murder in the first degree.
Defendant's final assertion of error in the instructions at the guilt phase of
the trial is that the Court erred when it only noted the simple assault conviction of
a Commonwealth witness while instructing the jury on credibility because there had
been testimony that the witness had been'convicted of forgery and false reports
to police. The Court's instruction on credibility encompassed four full pages of
transcript. (N.T., Vol. IX, p. 1544-48.) The focus of the instruction was to inform
the jury that they were the sole judges of credibility and to instruct them to use
their collective recollection of the testimony to determine the credibility of the
evidence. Id___,. Defendant disputes one portion of the instruction which stated, "for
example, I think I heard evidence that Michelle Rhinehart, for example, was
convicted of simple assault, or something like that. You recollect. I am just trying
to give you an example." (N.T., Vol. IX, p. 1547.)
The standard for evaluating jury instructions is clear: "[w]hen reviewing jury
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instructions, the charge must be considered as a whole. The trial court has broad
discretion in its phrasing of jury instructions so long as the instructions given
adequately reflect the law." Commonwealth v. Gibson, 547 Pa. 71, 91,688 A.2d
1152, 1162 (1997). It is up to the jury to evaluate the credibility of all witnesses.
Commonwealth v. Williams, 532 Pa. 265, 274, 615 A.2d 716, 720 (1992).
The Court gave an accurate instruction to the jury on credibility. The jury
was not confused or misled because it was made clear to them that it was their
responsibility to judge credibility and to remember the testimony. The Court offered
a Commonwealth witness, Rhinehart, as an example to show how testimony could
be discredited. No error occurred with the [Jse of the example because the charge,
as a whole, accurately conveyed to the jury their role as the sole judge of
credibility.
Instructions to the Jury at the Penalty Phase of the Trial
Defendant claims that the Court made the following errors in instructing the
jury at the penalty phase of trial: (1) the Court erred in refusing defendant's
proposed instruction on mitigating circumstances; (2) error resulted when the Court
paraphrased defendant's six proposed mitigating circumstances into four; (3) the
Court erred in telling jurors to list mitigating circumstances on the verdict slip taken
from the written instructions on the previous page of the verdict slip; (4) error was
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committed when the Court denied defendant's request for an instruction on
preponderance of the evidence; and (5) error occurred when the Court failed to
instruct the jury that there is no parole from a life sentence in Pennsylvania.
Defendant's first three assertions of error involve the Court's instruction on
mitigating circumstances. Defendant proposed an instruction on mitigating
circumstances that read, in pertinent part:
In this case, under the Sentencing Code, the
following matters, if proven to your satisfaction by a
preponderance of the evidence, can be mitigating
circumstances: (a) the Defendant was under the influence
of extreme mental or emotional disturbance; (b) the
capacity of the Defendant to appreciate the criminality of
his conduct or to conform his conduct to the law was
substantially impaired; (c) the age of the Defendant at the
time of the offense.
Any other mitigating matter concerning the
character and history of~ the Defendant or the
circumstances of his offense, including, but not limited to:
(a) the Defendant suffered extreme neglect in his
formative years; (b) the Defendant suffered physical
abuse from his stepfather and from his older brother; (c)
the Defendant was actively taught antisocial behavior by
his mother and stepfather in his formative years; (d) the
Defendant was denied the treatment he needed by his
mother and stepfather; (e) despite his difficult history,
Defendant has helped others in need of help; (f) the
Defendant is a talented artist and writer...
(Defendant's Brief in Support of Appeal, p. 27.) Instead, the Court gave the jury
the following oral instruction:
22
NO. 95-0794 CRIMINAL
In this case, under the sentencing code, ladies and
gentlemen, the following matters, if proven to your
satisfaction by a preponderance of the evidence, can be
mitigating circumstances. We are on page two. The first
one is that the defendant was under the influence of
extreme mental or emotional disturbance. Two, the
capacity of the defendant to appreciate the criminality of
his conduct or to conform his conduct to the requirements
of the law was substantially impaired. Three, the age of
the defendant at the time of the crime. And four, any
other evidence of mitigation concerning the character
and record of the defendant, and the circumstances of
his offense, including but not limited to that the
defendant was neglected during his childhood, including
any treatment he failed to receive, that the defendant was
physically abused, that the defendant had a poor
upbringing by his parents, that the defendant could have
been helpful to others. Consider counsel's argument in
that --in all these respects, I~dies and gentlemen.
(N.T., Vol. X, p. 1909-10)(emphasis added). After receiving oral instructions, the
jury took into deliberations a verdict slip which included a written instruction stating:
2. The following mitigating circumstances are submitted
to the jury and must be proved by the defendant by a
preponderance of the evidence.
(1) The defendant was under the influence of
extreme mental or emotional disturbance.
(2) The capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct to the
requirements of the law was substantially impaired.
(3) The age of the defendant at the time of the
crime.
(4) Any other evidence of mitigation concerning the
character and record of the defendant and the
circumstances of his offense, including but not limited to
(a) that the defendant was neglected during his
23
NO. 95-0794 CRIMINAL
childhood, including any treatment he failed to receive;
(b) that the defendant was physically abused; (c) that the
defendant had a poor upbringing by his parents; (d) that
the defendant could have been helpful to others.
(Jury Verdict Slip.)
The essence of defendant's argument is that the mitigating circumstances
instruction given by the Court violated his constitutional rights because the
instruction limited the mitigating circumstances the jury could consider in choosing
between a sentence of death or a life sentence. Defendant asserts that the
outcome of his sentencing hearing would have been different absent the prejudicial
mitigating circumstances instruction.
A challenged jury instruction must be reviewed as a whole to determine if it
is fair and complete. Commonwealth v. Hall, 549 Pa. 269, 303, 701 A.2d 190, 207
(1997), cert. denied, _ U.S. _, 118 S. Ct. 1534, 140 L. Ed.2d 684 (1998). A trial
court has discretion to phrase an instruction as it chooses so long as the law is
adequately and clearly presented to the jury. Id._=. In reviewing jury instructions, a
court shall only be reversed if it committed clear abuse of discretion or an error of
law which controlled the outcome of the case. Commonwealth v. Wilson, 538 Pa.
485, 515, 649 A.2d 435, 450 (1994), cert. denied, 516 U. S. 850, 116 S. Ct. 145,
133 L. Ed.2d 91 (1995). "[lin order for a new sentencing hearing to be warranted,
the instruction must have caused some articulable prejudice." Commonwealth v.
24
NO. 95-0794 CRIMINAL
Saranchak, 544 Pa. 158, 174, 675 A.2d 268, 276 (1996), cert. denied,_ U. S. _,
117 S. Ct. 695, 136 L. Ed.2d 617 (1997).
The Eighth Amendment of the United States Constitution requires that the
sentencer in a capital case consider all relevant mitigating evidence.
Commonwealth v. Williams, 532 Pa. 265, 279, 615 A.2d 716, 723 (1992). In
Pennsylvania, juries are required to consider all mitigating evidence without
limitation. Commonwealth v. Jasper, 531 Pa. 1, 11,610 A.2d 949, 954 (1992).
In Jasper, a defendant argued that the trial court erred when it did not offer
guidance to the jury as to how to consider mitigating evidence that was Presented
on his behalf. Jasper at 10, 610 A.2d at 953. The mitigating evidence presented
was not enumerated into distinct categories but fell within the catch-all provision
which instructed the jury to consider "any other evidence of mitigation concerning
the character and record of the defendant and the circumstances of his-arrest."
Jasper at 12, 610 A.2d at 954. Jasper argued that the trial court unconstitutionally
limited the mitigating circumstances the jury could consider when it gave the "any
other evidence of mitigation" instruction without further explanation of the evidence
actually presented. The court found no merit in the argument and said,
in the most elementary and plain sense, "any other" is
itself an enumerated consideration as the jury was
instructed, and by "any other" we mean "any other" in
any language which is spoken on the face of the earth,
25
NO. 95-0794 CRIMINAL
including especially ordinary English.
Jasper at 11,610 A.2d at 954.
Reviewing the instructions given in the case at bar, it is clear that the Court
did not commit abuse of discretion by formulating its own instruction on mitigating
circumstances. The Court included the "any other evidence of mitigation", catch
all instruction in the charge to the jury. The jury was properly instructed that they
were free to consider any possible mitigating circumstances proven by the
defendant. The instruction given was a clear and accurate reflection of the law.
Paraphrasing defendant's six proposed circumstances into four did not
unfairly prejudice the defendant. The Court's paraphrasing essentially covered all
but one of defendant's enumerated considerations of mitigating circumstances.
The only mitigating circumstance that cannot be read into the Court's paraphrasing
is that defendant "is a talented writer and artist." Although not specifically
enumerated, all evidence of defendant's drawings and wdtings was given to the
jury for consideration. The Court properly presented to the jury, both orally and
written on the verdict slip, an instruction which told them to consider "any other
evidence of mitigation concerning the character and record of the defendant, and
the circumstances of his offense, including but not limited to .... " It must be
assumed that the jury could understand the plain meaning of this instruction: they
26
NO. 95-0794 CRIMINAL
were to consider any mitigating evidence. The instruction given, in conjunction with
the evidence presented to the jury for deliberation, makes it evident that defendant
did not suffer undue prejudice.
The Court did not err when it asked the jury to list on the verdict slip any
mitigating circumstances taken from the written instructions on the previous page.
Defendant complains that, because the Court did not use his proposed instruction
with six enumerated mitigating circumstances, asking the jury to take mitigating
circumstances from the verdict slip instruction acted as a barrier to full
consideration by the jury. Defendant is mistaken. The written instructions were
proper. Neither the written nor the oral ihstructions acted to limit the possible
mitigating circumstances that the jury could consider. Because the jury was free
to consider all mitigating evidence, the defendant was not unfairly prejudiced and
his claim is meritless.'~ No new sentencing hearing is merited.
Defendant claims that the Court erred when it denied defendant's request
for a preponderance of the evidence instruction. Defendant's claim is without
merit. The Court did in fact give a complete preponderance of the evidence
instruction. Following a detailed instruction on reasonable doubt, the Court gave
4 In ineffective assistance of counsel claims, counsel can never be found
ineffective for failing to raise a meritless claim. Commonwealth v. Wilson, 538 Pa. 485,
498, 649 A.2d 435, 442 (1994). See also Commonwealth v. Williams, 532 Pa. 265, 615
A.2d 716 (1992); Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981).
27
NO. 95-0794 CRIMINAL
an instruction which stated, "[b]y contrast, the defendant must prove any mitigating
circumstances. However, the defendant only has to prove those mitigating
circumstances by a preponderance of the evidence. That is by the greater weight
of the evidence." (N.T., Vol. X, p. 1906).
The Pennsylvania Supreme Court has upheld an instruction nearly identical
to the one given in the case at bar. See Commonwealth v. Hall, 549 Pa. 269, 701
A.2d 190 (1997). The relevant section of the Hall instruction stated, "by contrast,
the defendant must prove any mitigating circumstance. However, he only has to
prove it by a preponderance of the evidence, that is, the greater weight of the
evidence." Hall at 305, 701 A.2d at 208. The court found that all of the
instructions, when viewed together, sufficiently conveyed the meaning of
preponderance of the evidence. Id.
Like the instructions in Hall, the instructions in the case at bar accurately
reflected the law and conveyed to the jury the meaning of preponderance of the
evidence and how to determine if aggravating and mitigating circumstances were
present. The Court later told the jury,
different treatment of aggravating and mitigating
circumstances is one of the law's safeguards against
unjust death sentences. It gives a defendant full benefit
of any mitigating circumstances. It is closely related to
the burden of proof requirements. Remember, the
Commonwealth must prove any aggravating
28
NO. 95-0794 CRIMINAL
circumstance beyond a reasonable doubt. While the
defendant only has to prove any mitigating circumstance
by a preponderance of the evidence.
(N.T., Vol. X, p. 1912).
Through the original preponderance of the evidence instruction and the
follow-up discussion, the Court made it clear to the jury what preponderance of the
evidence meant. When taken as a whole, it is clear that the jury received a full
and complete instruction on preponderance of the evidence. No error occurred
when defendant's request for an instruction was denied.
Defendant claims that the Court should have given the jury an instruction
that a life sentence in Pennsylvania does' not offer a defendant a possibility of
parole. Under the circumstances, the Court was not compelled to give such an
instruction.
The law is clear that if the state rests its case for imposing the death penalty
on the future dangerousness of a defendant and a life sentence means life without
parole in that state, a defendant's due process dghts are violated if an instruction
stating that a life sentence means life without parole is not given. Simmons v.
South Carolina, 512 U.S. , ,114 S.Ct. 2187, ,129 L. Ed.2d 133, 145-46
(1994). In Pennsylvania, the old rule of law was that capital juries were expressly
prohibited from hearing about the life without parole statute. Commonwealth v.
29
NO. 95-0794 CRIMINAL
Christy, 540 Pa. 192, 217 n. 22, 656 A.2d 877, 889 n. 22 (1995), cert. denied, 516
U. S. 872, 116 S. Ct. 194, 133 L. Ed.2d 130 (1995). Simmons announced a new
rule of law in Pennsylvania which now "mandates that where future dangerousness
is at issue and a specific request is made by the capital defendant, it is a denial
of due process to refuse to tell a jury what the term "life sentence" means."
Christy at 216-17, 656 A.2d at 889.
Defendant's argument that the Court should have given the instruction is a
make weight argument in spite of a clear ruling to the contrary. Defendant
concedes that the Commonwealth did not put his future dangerousness at issue
and that he did not request an instruction on the meaning of "life sentence"at trial.
If the Pennsylvania Supreme Court had meant for all capital juries to hear the
meaning of "life sentence", it could have required the instruction in all capital
cases. This is not the rule of law in Pennsylvania. The defendant was not denied
due process when the Court failed to give an instruction defining "life sentence."
30