HomeMy WebLinkAboutCP-21-CR-0794-1995
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
MARK NEWTON SPOTZ : CP-21-CR-0794-1995
IN RE: PETITION FOR POST-CONVICTION RELIEF
OPINION AND ORDER OF COURT
Bayley, J., June 26, 2008:--
May 15, 1996
On , with Hoffer, P.J., presiding, Mark Newton Spotz, who
represented himself, was convicted by a jury of murder in the first degree. At the
penalty phase, in which Spotz was represented by the Chief Public Defender of
Cumberland County, Taylor Andrews, the jury imposed the death penalty after finding
three aggravating circumstances and two mitigating circumstances and that the
aggravating circumstances outweighed the mitigating circumstances. Spotz was
June 17, 1996October 20, 2000
formally sentenced to death on . On , the Supreme
Court of Pennsylvania, on a direct appeal in which Spotz was represented by Attorney
1 July 14, 2002
Andrews, affirmed the judgment of sentence. On , the Supreme Court of
2
the United States denied a petition for a writ of certiorari.
In the opinion in support of the order affirming the judgment of sentence, the
Supreme Court of Pennsylvania stated:
The evidence adduced at trial showed that on February 2, 1995,
appellant, who was on the run after committing multiple homicides in other
Pennsylvania counties, arrived in Harrisburg and unsuccessfully
attempted to sell rings stolen from one of his previous victims to his friend,
__________
1
Commonwealth v. Spotz,
759 A.2d 1280 (Pa. 2000).
2
Spotz v. Pennsylvania
, 122 S.Ct. 902 (2002).
CP-21-CR-0794-1995
Juan Maldonado. Appellant told Maldonado that he was wanted on a
homicide charge in Schuylkill County and that his gun was dropping them
like flies. After leaving Maldonado, and sometime before 4:00 p.m.,
appellant abducted the elderly Betty Amstutz at or near her home in
3
Harrisburg. Over the next few hours, appellant drove to various places
with Ms. Amstutz being held hostage, obtaining money, clothing, and
lodging by use of her credit card and checking account. Thus, at 3:59
p.m. a bank employee in Harrisburg, cashed a $500 check from Ms.
Amstutz, who was accompanied by appellant. A bank security camera
filmed the transaction. At approximately 5 p.m. an employee of a sporting
goods store in Cumberland County, sold appellant and Ms. Amstutz
$262.05 worth of Orlando Magic products, which were purchased with a
credit card belonging to Ms. Amstutz. At 5:26 p.m. an employee of a
Camp Hill bank, cashed another check in the amount of $1,139.95 for
appellant and Ms. Amstutz. A bank security camera filmed that
transaction as well. Finally, at 6:04 p.m., Ms. Amstutz and appellant
checked into the Knight’s Inn in Carlisle, Pennsylvania using Ms.
Amstutz’s credit card. Shortly thereafter, at approximately 6:30 p.m. a
woman and her daughter were driving on McClures Gap Road in Carlisle,
Pennsylvania, where they saw a white male standing near a car matching
the description of the vehicle owned by Ms. Amstutz. The car was parked
at the location where Ms. Amstutz’s lifeless body was discovered the next
4
day.
Later that evening, appellant and a friend, Charles Carothers,
invited Michelle Rhinehart, the mother of appellant’s two children, to join
appellant in his room at the Knight’s Inn in Carlisle. There, appellant
Carothers and Rhinehart smoked crack cocaine purchased by appellant.
Appellant then gave $200 cash to Rhinehart and gave Ms. Amstutz’s car
to Carothers. Carothers left Rhinehart and appellant in the hotel room
and drove in Ms. Amstutz’s car to the apartment of Rhinehart’s sister and
her friend.
3
The time frame for the abduction was established in part by the fact that
investigators found groceries requiring refrigeration on Ms. Amstutz’s
kitchen counter. The Commonwealth introduced a tape receipt from a
local grocery store indicating that her purchases were made on February
2, 1995, at 3:15 p.m.
4
Other evidence was introduced proving appellant’s familiarity with the
area where Ms. Amstutz’s body was found. Specifically, appellant had
previously received a traffic citation and met friends on a bridge on that
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road. After his arrest, appellant falsely denied ever having been on the
road.
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The next morning, an employee of a tree service accidentally
discovered Ms. Amstutz’s body on the side of McClures Gap Road and
contacted local authorities. Police investigated the scene and broadcast
information concerning Ms. Amstutz’s missing vehicle. Later that
morning, Rhinehart’s sister and her friend were en route to the Knight’s
Inn to pick up Rhinehart and appellant, at Carothers’ request. The police
stopped them because their vehicle matched the description of Ms.
Amstutz’s vehicle. Police learned from the two women that appellant was
staying at the Knight’s Inn.
Thereafter, a police team surrounded appellant’s hotel room and,
after a lengthy standoff, appellant finally tossed his silver nine-millimeter
semiautomatic pistol outside of the hotel room, surrendered and was
arrested. A subsequent search of the hotel room yielded a pair of
bloodstained jeans, a knife, nine-millimeter full metal jacket ammunition,
and five credit cards issued in the name of one of appellant’s previous
murder victims, Penny Gunnet. In addition, a note written by appellant
was recovered, which itemized the money appellant had stolen and his
expenditures on crack cocaine and other purchases. At the bottom of the
note, appellant had written, a good day’s work.
An autopsy performed on Ms. Amstutz showed that she had been
shot nine times, including one lethal shot through the neck and another
lethal shot to the head. A ballistics test showed that the full metal jacket
bullets recovered at the scene of the murder and from Ms. Amstutz’s body
5
matched appellant’s handgun. Furthermore, appellant’s fingerprints were
found on Ms. Amstutz’s vehicle and an analysis of blood found on
appellant’s shoe was consistent with Ms. Amstutz’s blood.
Christina Noland established the chain of events that led to
appellant’s presence in Harrisburg and his motive for abducting and
executing Ms. Amstutz. On January 31, 1995, Noland and appellant had
fled from appellant’s mother’s home in Clearfield County after appellant
had shot his brother, Dustin, during a family fight. In need of a vehicle to
escape, appellant and Noland abducted June Ohlinger in Schuylkill
County, stole her car and later murdered her. The two then fled to
Rehoboth Beach, Delaware, in Ohlinger’s car, where they attempted to
alter their appearances. Noland and appellant then returned to York
County, Pennsylvania, where they abducted Penny Gunnet, stole her car,
and murdered her. Following this murder, Noland and appellant became
separated and Noland returned to the home of a friend.
5
The bullets used to kill Ms. Amstutz also matched those that were used
to kill appellant’s three previous victims, Dustin Spotz, Penny Gunnet and
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CP-21-CR-0794-1995
June Ohlinger.
Spotz filed this counseled “Petition for Habeas Corpus Relief Under Article I,
Section 14 Of The Pennsylvania Constitution And For Statutory Post-Conviction Relief
Under The Post-Conviction Relief Act,” and supplemental petitions. A petition seeking
post-conviction relief must be treated as a petition under the Post-Conviction Relief Act,
et seq
42 Pa.C.S. Section 9541., regardless of the title of the document filed. See
Commonwealth v.Bronshtein,
752 A.2d 868 (Pa. 2000). The Supreme Court of
Bronshtein
Pennsylvania stated in :
Although Appellant’s petition was filed as an “Amended Petition for
Habeas Corpus Relief under Article I, Section 14 of the Pennsylvania
Constitution and for Statutory Post-Conviction Relief Under the Post-
Conviction Relief Act,” his petition for habeas corpus relief will be
subsumed into the discussion of his PCRA petition given that the PCRA
specifically states: “The action established in this subchapter shall be the
sole means of obtaining collateral relief and encompasses all other
common law and statutory remedies for the same purpose that exist when
this subchapter takes effect, including habeas corpus and coram nobis.”
Hearings were conducted over a period of six days. The issues were then
briefed (Spotz’s brief was 278 pages) and orally argued. Spotz maintains that there
were errors in both the guilt phase and penalty phase of his trial that warrant the award
of a new trial. We will review each of the issues raised that Spotz deemed significant
enough to brief.
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CP-21-CR-0794-1995
GUILT PHASE
I.SPOTZ IS NOT ENTITLED TO A NEW TRIAL BASED ON HIS WAIVER OF
COUNSEL BECAUSE HIS WAIVER WAS VOLUNTARY, KNOWING AND
INTELLIGENT
Attorney Andrews represented Spotz and prepared for trial. He told Spotz that it
was his opinion that he would be found guilty of first degree murder; therefore, he
advised entering a plea and concentrating on defending against the death penalty.
Spotz would not enter a plea of guilty. He did not admit to Andrews or the psychologist
who had examined him on behalf of the defense that he killed Betty Amstutz. Spotz
then applied to the court to represent himself in the guilt phase of his trial. On May 2,
1996, after a thorough on-record colloquy, the court allowed Spotz to represent himself
3
and appointed Andrews as stand-by counsel. Spotz had just done the same thing in
his York County homicide trial where, just before jury selection on April 8, 1996, he was
Commonwealth v. Spotz,
allowed to represent himself. 756 A.2d 1139, 1149 (Pa.
2000).
sub judice,
In the case when the trial commenced on May 6, 1996, Spotz
represented himself at the guilt phase and was convicted of murder in the first degree.
He then had Attorney Andrews represent him at the penalty phase. Andrews also
represented him on his direct appeal from the judgment of sentence to the Supreme
__________
3
Commonwealth v. Bryant
See ,855 A.2d 726 (Pa. 2004). All of the relevant factors that the
Bryant
Supreme Court relied on in to conclude that the defendant’s waiver of counsel was
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CP-21-CR-0794-1995
Court of Pennsylvania. At the post-conviction hearing, Spotz testified that Andrews told
him that he was not going to present a defense; therefore, he had no choice but to
represent himself. He now argues that his waiver of counsel was not voluntary
because he believed that his choice was between either giving up any defense
whatsoever at the
guilt phase of the case or proceeding himself. Taylor Andrews testified in the post-
conviction proceeding that when he advised Spotz to plead guilty to the homicide,
Spotz did not take it well and then chose to represent himself. Andrews did not tell
Spotz that he would not represent him at the guilt phase. The argument that Spotz had
no choice but to represent himself is wholly without merit.
Spotz further argues that Attorney Andrews had a conflict of interest because he
had previously represented his brother Dustin Spotz in a criminal proceeding
concerning Dustin’s commitment to Warren State Hospital. Therefore, his waiver of
counsel was not voluntary because he was faced with either representing himself or
accepting representation by counsel with a conflict of interest. This same issue was
raised in the Schuylkill County post-conviction proceeding. Spotz was convicted in
Schuylkill County of first degree murder and sentenced to death for killing June
Ohlinger. That conviction was upheld on a direct appeal by the Supreme Court of
Commonwealth v. Spotz,
Pennsylvania, and in 896 A.2d 1191 (Pa. 2006), the
Supreme Court upheld a denial of post-conviction relief. At the trial stage in Schuylkill
knowing and intelligent are present in Spotz’s waiver colloquy.
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CP-21-CR-0794-1995
County, Attorney Andrews participated in a coordinated multi-county defense effort in
investigating and gathering Spotz’s background information and institutional records.
Spotz argued in his post-conviction petition in Schuylkill County, as he does in the
present case, that Andrews had a conflict of interest. The Supreme Court concluded
that “Spotz has failed to show how Attorney Andrews’ previous representation of the
now deceased Dustin adversely affected trial counsel’s representation of Spotz in the
4
present matter.” Likewise, in the present case, Spotz has failed to show that Andrews’
previous representation of Dustin Spotz affected his representation in this case or that
it affected Spotz’s decision to represent himself. We find that it did not and that there
was no conflict of interest that rendered his waiver of trial phase counsel involuntary.
Spotz also argues that his waiver was involuntary because he was not
competent to waive counsel. In order to prove that he was not competent, Spotz must
establish that he was either unable to understand the nature of the proceedings against
Commonwealth v. Starr,
him or to participate in his own defense. 664 A.2d 1326 (Pa.
1995). At the post-conviction proceeding, Spotz presented the testimony of Robert A.
Fox, a psychiatrist, who examined him at SCI Graterford in September, 2000, and at
SCI Greene in February, 2007. Dr. Fox offered an opinion that Spotz should have had
a full psychiatric evaluation before he was allowed to waive counsel in order to
determine if he could competently represent himself and that Spotz should not have
been allowed to represent himself because he was not capable of making informed
__________
4
Commonwealth v. Spotz,
896 A.2d 1191, 1232 (Pa. 2006).
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CP-21-CR-0794-1995
decisions regarding his trial. This testimony, however, was directly contradicted by
another psychiatrist, Neil Blumberg, M.D., who was called by Spotz. Dr. Blumberg
conducted a psychiatric evaluation of Spotz at SCI Greene on October 19, 2005, and
November 6, 2006. He offered an opinion that Spotz was competent to represent
himself in the guilt phase of his trial. Attorney Andrews testified that there was no
indication at any stage of his involvement with Spotz before or during trial that he was
not competent to represent himself. Considering all of the evidence, we find that Spotz
was competent to represent himself at trial and that his waiver of counsel was
voluntary, knowing and intelligent.
II. SPOTZ IS NOT ENTITLED TO A NEW TRIAL BECAUSE COUNSEL WAS NOT
INEFFECTIVE IN FAILING TO INVESTIGATE, DEVELOP AND PRESENT GUILT
PHASE DEFENSES OF INTOXICATION AND MENTAL HEALTH DEFICIENCIES AT
THE TIME OF THE OFFENSE
During the post-conviction proceedings, Spotz offered expert testimony that at
the time Betty Amstutz was killed in February, 1995, he could not have formed a
specific intent to kill her because of his mental condition and voluntary intoxication.
Such diminished capacity defenses, if successful, can reduce murder to third degree.
Such defenses, however, were not available to Attorney Andrews because Spotz never
admitted that he killed Betty Amstutz. This same issue was raised in the post-
conviction proceeding in the Schuylkill County homicide. The Supreme Court of
Pennsylvania noted that trial counsel could not be ineffective for failing to present a
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CP-21-CR-0794-1995
diminished capacity defense because it would require Spotz to concede liability, which
Commonwealth v. Spotz,
he did not do. 896 A.2d 1191, 1218 (Pa. 2006). In
Commonwealth v. Rainey,
928 A.2d 215 (Pa. 2007), the Supreme Court stated that:
A diminished capacity defense requires that a defendant establish
he had a mental defect at the time of a murder that affected his cognitive
abilities of deliberation and premeditation necessary to formulate specific
intent to kill. Commonwealth v. McCullum, 558 Pa. 590, 738 A.2d 1007,
1009 (1999). This defense requires the defendant to admit that he killed
the victim. Commonwealth v. Johnson, 572 Pa. 283, 815 A.2d 563, 578
(2002); Commonwealth v. Laird, 555 Pa. 629, 726 A.2d 346, 353 (1999)
(“We have held that ‘[a] defense of diminished capacity is only available
to a defendant who admits criminal liability but contests the degree of
guilt’.”) (citing Commonwealth v. Weaver, 500 Pa. 439, 457 A.2d 505
(1983)).
III. SPOTZ IS NOT ENTITLED TO A NEW TRIAL BECAUSE THE
COMMONWEALTH DID NOT IMPERMISSIBLY FAIL TO DISCLOSE TO HIM AN
AGREEMENT WITH CHRISTINA NOLAND IN EXCHANGE FOR HER TESTIMONY
AGAINST HIM
Spotz made this same argument in his post-conviction proceeding in Schuylkill
County where the Supreme Court stated that “[t]o be eligible for post-conviction relief
on this claim, Spotz must prove by a preponderance of the evidence that an agreement
between the Commonwealth and Noland existed and that its introduction would have
5
changed the outcome of the trial. 42 Pa.C.S. § 9543(a).” Christina Noland was not
__________
5
Commonwealth v. Spotz,
896 A.2d 1191, 1214 (Pa. 2006). The Supreme Court concluded
that Spotz had presented no evidence of an actual agreement between Noland and the
prosecutor or that the Commonwealth had entered into an agreement whereby Noland would
testify against Spotz in exchange for a more lenient sentence.
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CP-21-CR-0794-1995
present when Betty Amstutz was killed in Cumberland County. She testified in Spotz’s
trial in Cumberland County to the events occurring between January 31, 1995, and
February 2, 1995. On January 31, 1995, she was present at the house of Mark Spotz’s
mother when a fight broke out between Spotz and his brother Dustin which led to the
death of Dustin. Following that incident, she and Spotz fled to Harrisburg, Dauphin
County, and then to Pine Grove, Schuylkill County, where Spotz stole June Ohlinger’s
car and subsequently shot and killed her. From Pine Grove, they drove to Rehoboth
Beach, Delaware, in Ohlinger’s car, and then to Lancaster where they spent the night in
the car. On February 2, 1995, they drove to York where Spotz stole the car of Penny
Gunnet. Noland testified that she drove Ohlinger’s car and followed Spotz, who was
driving Gunnet’s car, before getting separated from him. She then left Ohlinger’s car
on the side of the road and walked into York. She took a bus to Altoona where she
went to the police. During her testimony, Noland maintained her innocence of any
crimes and characterized herself as being a frightened, unwilling participant.
Noland testified in this post-conviction proceeding that she never made an
agreement with the Commonwealth regarding her testimony at trial and that she had no
expectations regarding such testimony. While Spotz has attempted to show a
connection between Noland’s testimony here and her prosecution in York County, we
find that there was no agreement between her and the Commonwealth regarding her
testimony in Cumberland County that was impermissibly withheld from Spotz at trial,
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CP-21-CR-0794-1995
much less an agreement that would have changed the outcome of this trial.
IV. SPOTZ IS NOT ENTITLED TO A NEW TRIAL REGARDING THE HEARSAY
STATEMENT OF CHARLES CAROTHERS REPORTED BY THOMAS WITMAN
At trial, Spotz sought to have Thomas Witman testify to a statement that Witman
reportedly heard Charles Carothers make to a third person while they were both
6
incarcerated at the Cumberland County Prison. According to Witman, Carothers
stated that he was “going to let the white mother fucker take it, let him fry” - the “white
mother fucker” being Spotz - and that he, Carothers, “shot the old bitch in the head” –
7
the “old bitch” being Betty Amstutz. After Spotz had related the substance of this
statement to the trial judge, Witman was brought before the court and asked if Spotz
had accurately characterized the testimony he would offer. Before Witman could
answer, the court asked Witman if he would prefer to speak with an attorney prior to
8
answering the court’s questions. Witman said that he would, and counsel was
9
appointed to represent him. Witman conferred with counsel and returned to the court-
10
room. The Commonwealth objected to his proffered testimony as hearsay. The judge
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6
The statement at issue was reported by Witman to Officer Sancenito and Chief Rudolph. N.T.
VIII 1223-24.
7
N.T. VIII 1224.
8
N.T. VIII 1226.
9
N.T. VIII 1285.
10
N.T. VIII 1283.
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CP-21-CR-0794-1995
told Spotz that the court was prepared to hear argument concerning the proposed
testimony of Witman. Spotz conferred with Attorney Andrews, off the record, and then
stated that “Mr. Andrews . . . has indicated that there is no argument to be made.
11
Witman cannot be used unless . . . Carothers would be an unavailable witness.” After
further discussion with the court, the following occurred:
MR. ANDREWS: This statement could only be admitted if Mr. Carothers
were unavailable. If he is unavailable, then there is a decision for the
Court to make as to whether that renders the statement admissible.
THE COURT: Well, I think, for openers, you have to call Carothers.
MR. SPOTZ: Call him as a witness?
THE COURT: Yes. Because he is not available or – excuse me, he is
available and can be brought up here to testify.
MR. ANDREWS: In the absence of that, I think what Mr. Spotz is saying
is accurate, I don’t think there is an argument, a disagreement, a
12
divergent point of view between the two tables.
The judge informed Spotz that he had not done what would be necessary for the
court to admit the statement, i.e., have Carothers determined to be unavailable
13
pursuant to Pa.R.E. 804(a) and demonstrate the reliability of the statement. Spotz
then conferred with Carothers, who was in the Courthouse. After which, Spotz told the
14
judge that he was not going to call Carothers as a witness; he was going to “let it go.”
The judge never made a ruling adverse to Spotz which Attorney Andrews could have
__________
11
N.T. VIII 1425.
12
N.T. VIII 1426-27.
13
N.T. VIII 1428. At the post-conviction proceeding, Andrews was asked if he had advised Spotz
that Carothers could be unavailable as a result of taking the Fifth. Mr. Andrews answered: “I
don’t think I did.”
14
N.T. IX 1504.
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CP-21-CR-0794-1995
raised as error on the direct appeal from the judgment of sentence.
Notwithstanding, Spotz now maintains that Attorney Andrews, in his capacity as
stand-by counsel, was ineffective for failing to make a valid argument for the
admissibility of the Carothers’ statement through Witman either under state law or on
constitutional grounds. He argues that stand-by counsel’s role had become that of
counsel when he addressed the trial court on the issue of the admissibility of Carothers’
statement. A defendant who has “waived his right to counsel and asserted his right to
self-representation, which was honored after colloquy . . . may not rely upon his own
lack of expertise as a ground for relief,” and ineffectiveness claims “that arise from the
Commonwealth v. Bryant
period of self-representation” will not be considered. , 855
A.2d 726 (Pa. 2004). In determining if the exchange at trial between Andrews and the
judge may be the basis of an ineffective assistance of counsel claim, two questions
must be addressed: (1) is a claim of ineffective assistance of stand-by counsel
cognizable; or, in the alternative, (2) if Andrews was acting as counsel, however briefly,
can an ineffective assistance of counsel claim be raised despite Spotz having waived
Bryant
counsel. Both of these claims are barred by . The only determinations to be
Bryant
made in applying are: (1) was defendant’s waiver of counsel knowingly and
intelligently made; and (2) did the alleged ineffectiveness occur during a period of self-
representation. The first we previously addressed. As to the second, at no time during
the guilt phase of the trial did Spotz withdraw his waiver of counsel (stand-by counsel’s
brief statements to the court, quoted above, did not function to rescind a valid waiver of
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counsel as is made clear by defendant’s colloquy), and, therefore, the alleged
ineffectiveness occurred during a period of self-representation. Consequently, Spotz is
Bryant
barred by from making any ineffective assistance of counsel claims which relate
to his period of self-representation.
Bryant
We note that Justice Saylor in a dissent in took issue with the majority for
framing the consequences of a waiver of counsel as categorical without any express
consideration of the line of cases from other jurisdictions cited in the appellant’s brief
holding that a failure on the part of stand-by counsel to adequately perform the limited
role assigned to him by a trial court can implicate errors of constitutional dimension.
Bryant
Notwithstanding, Justice Saylor subsequently applied the bright line test in in
Commonwealth v. Fletcher
authoring the majority opinion in , 896 A.2d 508 (Pa.
2006), while noting:
This author has taken the position applied by a number of other courts
that a post-conviction petitioner should be permitted to challenge standby
counsel’s stewardship relative to the limited duties that were assigned to
him. The Bryant majority, however, implemented a categorical approach
in refusing to consider any claims of ineffectiveness arising from a period
of self-representation, which we also apply here, based on Bryant.
(Citations omitted.)
Bryant
Justice Saylor made it clear that the Court’s intention in was to
“implement a categorical approach” and exclude ineffective assistance of stand-by
counsel claims, without exceptions. A defendant who validly waived a right to counsel
and opted for self-representation may not bring any claims of ineffective assistance of
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counsel -- not against stand-by counsel and not against advisory counsel even if
advisory counsel assumed or was assigned specific duties -- if that ineffectiveness
occurred during a period of self-representation. Consequently, Spotz, who at all
relevant times represented himself in the guilt phase of his trial, cannot raise any
ineffective assistance of counsel claims.
Even though the issue of the reported hearsay statement by Carothers cannot
be raised in this post-conviction proceeding on a claim of the ineffective assistance of
stand-by counsel, we will, as a matter of judicial economy, address whether, if
Carothers had been determined unavailable to testify at trial, his hearsay statements
would have been admissible through Witman. If Spotz had called Carothers outside of
the presence of the jury to determine if he would testify or refuse to testify on the
grounds of self-incrimination, and if Carothers had been successful in exercising his
Fifth Amendment right, then he would have been unavailable and the judge would have
had to determine whether the hearsay statements were admissible on the basis that
15
corroborating circumstances clearly indicated the trustworthiness of such statements.
The admissibility of a hearsay statement against penal interest is determined
pursuant to Pa.R.E. § 804(b)(3) which states:
(b) Hearsay Exceptions.
The following statements, as hereinafter
defined, are not excluded by the hearsay rule if the declarant is
unavailable as a witness:
__________
15
At the post-conviction proceeding Spotz sought to call Carothers. Counsel was appointed for
Carothers. Carothers then exercised a Fifth Amendment privilege not to testify.
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* * *
(3) Statement against interest. A statement which was at the time of its
making so far contrary to the declarant's pecuniary or proprietary
interest, or so far tended to subject the declarant to civil or criminal
liability, or to render invalid a claim by the declarant against another, that
a reasonable person in the declarant's position would not have made the
In a criminal case, a statement
statement unless believing it to be true.
tending to expose the declarant to criminal liability is not
admissible unless corroborating circumstances clearly indicate the
trustworthiness of the statement.
(Emphasis added.)
clearly
Specifically at issue here is whether or not “corroborating circumstances
indicate the trustworthiness of the statement.” (Emphasis added.) Although there is no
required list of factors to consider when evaluating the trustworthiness of a statement,
the basic components are “when and where the statements were made, to whom they
Commonwealth v. Robins
were made and what was said.” , 812 A.2d 514, 526 (Pa.
Robins
2002). In , Coins and Computers, a coin, stamp, and collectibles store, was
burglarized and approximately $500,000 worth of merchandise was stolen. After
receiving information from a witness, the police were led to a Rent-a-Wreck franchise
and discovered that Robins had rented a van two days prior to the burglary matching
the description supplied by the witness. Robins claimed he had rented the van for a
friend, Barry Auman. Upon searching Robins’ home pursuant to a search warrant,
16
police failed to discover any evidence directly linking him to the crime.
__________
16
Police did, however, find locksmithing tools and a police scanner but all were legally
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Nearly a year after the search, Joseph Downey, a police informant, contacted
the investigators. While incarcerated at Allegheny County jail in May of 1996, Downey
came into contact with Auman, Robins’ friend, and the two discussed various crimes
they had participated in. One such crime was the Coins and Computers burglary.
Auman confided in Downey that he participated in that burglary and even disclosed
details of the crime, including the use of a white van rented from Rent-a-Wreck.
17
Auman also referenced an accomplice who was a locksmith and had rented the van.
In exchange for being released from prison, Downey agreed to participate in a sting
operation targeting Auman.
After Downey and Auman were both released from jail, a meeting between
Auman and an undercover Pittsburgh police detective posing as a stamp collector was
arranged. During that meeting, Auman, in an attempt to explain how he came into
possession of the stamps, related details of the burglary to the undercover detective,
including the use of the Rent-a-Wreck van. Subsequent to the meeting, Auman
informed the detective that he was unable to locate the stamps and would therefore be
unable to sell them. Auman and Robins were arrested shortly thereafter.
In a pre-trial motion, Robins sought to exclude both Auman’s jailhouse
confession to Downey and the tape-recording of Auman’s conversation with the
undercover detective. The trial court admitted those portions of each which related
possessed by Robins.
17
The locksmith presumably being Robins.
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solely to Auman’s own involvement in the burglary and excluded those portions
implicating Robins. On appeal, Robins argued that the trial court erred in allowing any
of Auman’s statements to be admitted into evidence, redacted or not. The Superior
Court affirmed and an appeal to the Supreme Court followed.
Where a hearsay exception is at issue, and leaving aside the question of
18
unavailability required by Pa.R.E. 804(b), the Supreme Court stated that compliance
with the Confrontation Clause of the United States Constitution is established “through
__________
18
Hearsay Exceptions
Pa.R.E. 804(b) states: . The following statements, as hereinafter defined,
unavailable
are not excluded by the hearsay rule if the declarant is as a witness . . . (emphasis
added).
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CP-21-CR-0794-1995
the demonstration of reliability of a hearsay statement by reference to particularized
guarantees of trustworthiness such that cross-examination would be of ‘marginal utility’
in determining truthfulness.” Although there is no required list of factors when
examining the circumstances surrounding a statement to assess its reliability, the basic
components of the inquiry are “when and where the statements were made, to whom
they were made, and what was said.”
In analyzing the circumstances surrounding Auman’s jailhouse confession to
Downey, the Supreme Court held that Auman’s statements lacked sufficient indicia of
19
reliability. First, the statements were made in jail with the possible motive of
“enhance[ing] [Auman’s] standing in the eyes of his cellmate, rather than to speak
truthfully of his role in a serious crime.” Second, the statements were made to Downey,
someone Auman had no previous relationship with, and, therefore, it was unlikely that
they “shared a bond inspiring mutual trust.” Third, Auman’s statements gave “him a
pivotal role in a sensational, and still unsolved burglary . . . .” Finally, summarizing
these circumstances, the Supreme Court stated that “[c]onversations between
__________
19
While the statutory language refers to “corroborating circumstances [that] clearly indicate the
trustworthiness of the statement,” the Supreme Court in analyzing the circumstances surrounding
Robins
the statement in consistently used “indicia of reliability” as an equivalent standard.
-20-
CP-21-CR-0794-1995
20
cellmates do not carry any special indicia of reliability.”
In the present case, the statements at issue were made by Charles Carothers
and overheard by Thomas Witman in the Cumberland County Prison sometime
between May and July of 1995. On April 3, 1996, Witman made a statement to Chief
Rudolph and another officer in which he claims to have heard Carothers tell another
inmate, Vernon Washington, that he, Carothers, “shot the old bitch in the head,”
referring to the murder of Betty Amstutz. PCRA, petitioner’s Exhibit 57. Witman also
heard Carothers say “I am going to let the white mother fucker take it,” meaning Spotz.
Id
. At the time these statements were made, Witman was standing outside the cell
Id
where Carothers and Washington were talking. . Neither of the statements was
IdRobins
made to Witman. . These facts parallel those in . First, Carothers’
statements were made while he was incarcerated with the possible motive of
“enhance[ing] [his] standing in the eyes of his cellmate, rather than to speak truthfully of
his role in a serious crime.” Second, his statements were made to a fellow inmate with
whom he had no previous relationship and with whom he did not “share[] a bond
inspiring mutual trust.” Third, the statements gave “him a pivotal role in a sensational .
Robins
. . [murder] . . . .” We reach the same conclusion as that reached in : Carothers’
__________
20
Robins
Although the opinion of the Court in did not garner a majority, Justice Saylor, in a
concurring opinion, stated: “I agree with the lead that the Court is obliged to proceed with the
remaining, relevant Sixth Amendment analysis, confining the inquiry to the circumstances
surrounding Auman’s statements.” Justice Saylor’s main disagreement with the opinion of the
Court related to the taped conversation and not to Auman’s jailhouse confession; it is only the
analysis of the jailhouse confession, which Justice Saylor endorsed, that is relevant to our
purposes.
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CP-21-CR-0794-1995
statements lack sufficient indicia of reliability and do not fall within the hearsay
exception of Pa.R.E. 804(b)(3). The circumstances surrounding communications
clearly
between cellmates simply do not “ indicate the trustworthiness” of those
communications, and, without sufficient indicia of reliability, it cannot be said cross-
examination of Carothers would be of “marginal utility” in determining the truthfulness of
his statements.
Beyond the basic components of the above inquiry, i.e., who, what, when, and
where, Spotz argues in a brief several additional circumstances to buttress his
argument for the reliability of Carothers’ statements:
Carothers was in the company of Spotz around the time of the
murder, shared in drugs ostensibly purchased with the robbery
proceeds (NT, at 808, 824), was seen suspiciously “polishing” the
gun that was later shown to be the murder weapon (NT, at 820),
was in sole possession of Amstutz’s car within hours of the murder,
and exhibited consciousness of guilt by fleeing the police while
operating the Amstutz vehicle.
While these circumstances may relate to the crime itself, they are beyond the
scope of the reliability inquiry. The only circumstances that are relevant when
examining the reliability of a hearsay statement are “those attendant to the making of
the statement; and in this regard, the use of hindsight or ‘bootstrapping’ based upon
21
independent evidence is proscribed.” These additional circumstances, none of which
were attendant to the making of the statements, constitute independent evidence and
are not relevant to the issue of reliability.
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CP-21-CR-0794-1995
Chambers v.
In an attempt to overcome these deficiencies, Spotz cites
Mississippi
, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), in which the
Supreme Court of the United States stated that “the hearsay rule may not be applied
mechanistically to defeat the ends of justice.” However, in the paragraph immediately
following the above quote, the Supreme Court clearly limits the applicability of its ruling
Chambers
to the facts and circumstances of :
In reaching this judgment, we establish no new principles of
constitutional law. Nor does our holding signal any diminution in
the respect traditionally accorded to the States in the establishment
and implementation of their own criminal trial rules and procedures.
Rather, we hold quite simply that under the facts and
circumstances of this case the rulings of the trial court deprived
Chambers of a fair trial.
Chambers
The facts and circumstances here are not those of . A significant
Chambers
difference is that in the hearsay statement at issue was made at the offices
of, and in the presence of, Chambers’ attorney, not to a cellmate. The statement was
transcribed, signed, and witnessed. The Supreme Court based its holding not only on
the exclusion of the hearsay statement but also on Chambers being barred from cross-
Id
examining the man who confessed to Chambers’ attorney. . at 302. There was no
such bar here. Spotz, for his own reasons, chose not to call Carothers to testify. He
was not barred from doing so. The Supreme Court made clear that its ruling was the
in conjunction with one another
result of the two issues and not based singly on
either. Yet, we have one weak issue, the hearsay issue, and the other not at all.
21
Robins
, 812 A.2d at 525 (citations omitted).
-23-
CP-21-CR-0794-1995
-24-
CP-21-CR-0794-1995
Chambers
Consequently, the distinctions between the present case and are just too
numerous.
In conclusion, there was no error at trial regarding the hearsay statement of
Carothers overheard by Witman, and, because the hearsay issue would not have
provided Spotz with a meritorious argument for the grant of a new trial, Attorney
Andrews could not have been ineffective for not raising the issue on direct appeal.
V. SPOTZ IS NOT ENTITLED TO A NEW TRIAL BECAUSE OF ALLEGED
IMPROPER PROSECUTORIAL CLOSING ARGUMENT IN THE GUILT STAGE
Spotz maintains that the District Attorney made three comments during closing
arguments at the guilt stage that went beyond permissible limits. He challenges these
comments both on general grounds of improper prosecutorial argument, claiming that
they denied him a fair trial, and on specific grounds related to each of the three
comments. These comments consisted of the following:
And he [Spotz] wanted to come in here in front of you and show how
smart he is, and how he can control things, and how he manipulates
women, and then fool you.
* * *
I submit to you whoever did this to a 70-year-old woman had malice and
specific intent. So we are down to one thing. Is that the guy that was
pulling the trigger?
* * *
[T]he judge was “required to give you instructions about third degree and
second degree murder.”
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CP-21-CR-0794-1995
Although Spotz did not object at trial to the comments in question, he argues
that, pursuant to the Supreme Court of Pennsylvania’s relaxed waiver rule in effect at
22
the time of his direct appeal, the issue of improper prosecutorial argument was not
waived and should have been raised by appellate counsel on direct appeal.
Additionally, he maintains that stand-by counsel was ineffective for failing to either
object to the claimed improper comments at trial or to advise him at trial of the
objectionable nature of the comments. We do not have to address this claim on the
merits. No objection to the prosecutor’s comments was made at trial. Therefore, the
issue is waived. Spotz proceeded pro se at trial and, as discussed elsewhere,
ineffectiveness claims “that arise from [a] period of self-representation” will not be
Commonwealth v. Bryant
considered. , 855 A.2d 726, 737 (Pa. 2004). Furthermore,
Commonwealth v. Fletcher
, 896 A.2d 508 (Pa. 2006), discussed elsewhere, makes it
Bryantall
clear that the rule implemented in applies to claims of ineffectiveness arising
from a period of self-representation, including claims of ineffective assistance of stand-
Fletcher
by counsel. , 896 A.2d at 522 n.13.
__________
22
See generally Commonwealth v. McKenna
, 476 Pa. 428, 383 A.2d 174 (1978) (“We
recognize, of course, that the doctrine of waiver is, in our adversary system of litigation,
indispensable to the orderly functioning of the judicial process. There are, however, occasional
rare situations where an appellate court must consider the interests of society as a whole in
seeing to it that justice is done, regardless of what might otherwise be the normal procedure.
Commonwealth v.
One such situation is surely the imposition of capital punishment.”), and
Freeman
, 573 Pa. 532, 827 A.2d 385 (2003) (“[T]he operating principle behind the relaxed
waiver doctrine, as originally formulated, was ‘to prevent this court from being instrumental in an
Commonwealth v. Albrecht
unconstitutional execution.’” (quoting , 554 Pa. 31, 720 A.2d 693
(1998))).
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CP-21-CR-0794-1995
VI. SPOTZ IS NOT ENTITLED TO A NEW TRIAL BECAUSE OF THE
INSTRUCTIONS THE COURT GAVE THE JURY REGARDING “OTHER CRIMES”
EVIDENCE
This issue was raised and finally litigated on Spotz’s direct appeal when the
Commonwealth v. Spotz,
Supreme Court of Pennsylvania, at 759 A.2d 1280, 1287
(Pa. 2000), stated:
In a related argument, appellant next complains that the trial
court’s instruction concerning the other crimes evidence was defective
because it over-emphasized the relevance of the evidence rather than
emphasizing the caution with which the jury should consider it. Appellant
argues that, rather than being a cautionary limiting instruction, the court’s
instruction wrongly elaborated on the value of the evidence to the
Commonwealth.
An instruction will be upheld if it clearly, adequately and accurately
reflects the law. Commonwealth v. Hawkins, 549 Pa. 352, 391, 701 A.2d
492, 511 (1997). The trial court may use its own form of expression to
explain difficult legal concepts to the jury, as long as the trial court’s
instruction accurately conveys the law. Id. There was no error in the
comprehensive instruction here. The Court began the charge by noting
the single, improper purpose for which the jury could not consider the
evidence, i.e., to show bad character or criminal propensity. Part and
parcel of any instruction as to what use of the evidence could not be
made was guidance as to the proper purpose for which it could be
considered. Those purposes and concepts, i.e., intent, motive etc., were
not self-explanatory, but required elaboration. Appellant does not dispute
that the evidentiary purposes outlined in the court’s charge here were
both applicable and accurately described. Instead, his complaint appears
to be that the instruction was too accurate. Because the instruction
accurately explained the purpose for which the evidence could, and could
not, be considered in light of the circumstances, it was not erroneous.
Accordingly, appellant’s claim fails.
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CP-21-CR-0794-1995
VII. THERE WAS NO VIOLATION OF SPOTZ’S DOUBLE JEOPARDY AND DUE
PROCESS RIGHTS IN DENYING HIS MOTION TO CONSOLIDATE HIS THREE
CAPITAL TRIALS
This issue was raised and finally litigated in Spotz’s direct appeal and rejected
Commonwealth v. Spotz,
by the Supreme Court of Pennsylvania. 759 A.2d 1280,
1285-86 (Pa. 2000). Furthermore, in the Schuylkill County post-conviction proceeding,
Commonwealth v. Spotz,
896 A.2d 1191 (Pa. 2006), Spotz contended that the
Schuylkill County trial court erred in refusing to join the charges for the four deaths then
pending against him, the three others being in Clearfield County, York County and
Cumberland County. The Supreme Court of Pennsylvania concluded that this was a
meritless claim.
VIII. SPOTZ IS NOT ENTITLED TO A NEW TRIAL BECAUSE OF THE
CUMULATIVE EFFECT OF ALLEGED ERRORS DESCRIBED IN HIS PETITION
Commonwealth v. May,
In 898 A.2d 559 (Pa. 2006), the Supreme Court of
Pennsylvania stated:
We have held that “no number of failed claims may collectively attain
Commonwealth v. Williams,
merit if they could not do so individually.”
532 Pa. 265, 615 A.2d 716, 722 (1992).
We have determined that there were no guilt phase errors warranting relief.
Spotz’s allegation fails.
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CP-21-CR-0794-1995
PENALTY PHASE
I. SPOTZ IS NOT ENTITLED TO A NEW SENTENCING HEARING BECAUSE
COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO INVESTIGATE, DEVELOP
AND PRESENT AVAILABLE MITIGATING EVIDENCE IN PREPARATION FOR THE
PENALTY PHASE
In the penalty phase, the jury found all three aggravating circumstances
submitted: that Spotz committed a killing while in the perpetration of a felony; that he
had a significant history of felony convictions involving the use or threat of violence to
the person; and that he had been convicted of another murder, committed either before
or at the time of the offense at issue. Four mitigating circumstances were submitted by
Spotz:
(1) He was under the influence of extreme mental or emotional
disturbance,
(2) His capacity to appreciate the criminality of his conduct or to
conform his conduct to the law was substantially impaired, and
(3) His age at the time of the offense.
(4) All 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
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.
The jury found in the catch-all mitigator No. 4 that Spotz was neglected during his
childhood, including any treatment he failed to receive, and that he had a poor
upbringing by his parents.
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CP-21-CR-0794-1995
Spotz argues that he is entitled to a new penalty phase trial because Attorney
Andrews failed to adequately investigate and present mitigating evidence in that phase.
Commonwealth v. Jones,
In 912 A.2d 268 (Pa. 2006), the defendant was convicted in
1983 of murder in the first degree and sentenced to death. The judgment of sentence
was affirmed by the Supreme Court of Pennsylvania. At the original trial, the
defendant’s counsel presented no evidence during the penalty phase. On a petition for
post-conviction relief, the court found that trial counsel was ineffective for failing to
present: (1) mental health mitigation evidence, under 42 Pa.C.S. Section 9711(e)(3),
and (2) other evidence of mitigation concerning Jones’ character and record and
circumstances of his offense pursuant to 42 Pa.C.S. Section 9711(e)(8), known as the
catch-all mitigator. The death penalty was vacated and a new penalty phase hearing
was granted. On appeal, the Supreme Court stated:
To succeed with a claim of ineffective assistance of counsel, a
defendant must show that such ineffectiveness “in the circumstances of
the particular case, so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken place.” 42
Pa.C.S. § 9543(a)(2)(ii). We have interpreted this standard to require a
petitioner to prove that: (1) the underlying claim is of arguable merit; (2)
counsel’s performance lacked a reasonable basis; and (3) the
ineffectiveness of counsel caused appellant prejudice. Commonwealth v.
Todaro, 549 Pa. 545, 701 A.2d 1343, 1346 (1997).
In the instant case, the PCRA court found that the underlying claim
of trial counsel’s ineffectiveness was of arguable merit. We agree.
Numerous prior cases of this Court, as well as the United States Supreme
Court, detail the obligations of defense counsel to develop mitigating
evidence in a capital sentencing proceeding. Where counsel fails to
investigate reasonably mitigating evidence of childhood abuse, family
dysfunction and neglect, as well as mental health impairments, deficient
performance exists. Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156
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CP-21-CR-0794-1995
L.Ed.2d 471 (2003); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146
L.Ed.2d 389 (2000); Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d
717, 737 n. 21 (2000) (“Evidence of a difficult family history and emotional
disturbance is typically introduced by defendants in mitigation.”) (citing
Eddings v. Oklahoma, 455 U.S. 104, 115-16, 102 S.Ct. 869, 71 L.Ed.2d 1
(1982)). In the instant matter, Johnson had an obligation to investigate
potential mitigating evidence. He failed to do so. As the evidence
presented at the PCRA hearing demonstrates, there was a wealth of
material available at the time of sentencing that could have led to
persuasive evidence of mitigation. Therefore, we agree with the PCRA
court that Jones has succeeded in proving that trial counsel was
ineffective.
Further, we can discern no strategy on the part of Johnson for
failing to conduct a review of available records, interviews of available
family members, and subsequent investigation stemming from such
research. In fact, Johnson offered no strategic reason for failing to do so,
stating instead that he did not see any need. Finally, the PCRA court’s
conclusion, that there was a substantial likelihood that the outcome of the
penalty hearing would have been different with the addition of the Section
9711(e)(3) and (e)(8) mitigators, is without error.
To show prejudice in the penalty phase of a death penalty
case, an appellant must show the reasonable probability that,
absent trial counsel’s failure to present mitigating evidence, he
would have been able to prove at least one mitigating circumstance
by a preponderance of the evidence and that at least one jury
member would have concluded that the mitigating circumstance(s)
outweighed the aggravating circumstance(s).
Commonwealth v. Ford, 570 Pa. 378, 809 A.2d 325, 332 (2002) (Opinion
Announcing the Judgment of the Court). Such prejudice existed in this
23
case.
Commonwealth v. Rainey,
In 928 A.2d 215 (Pa. 2007), the Supreme Court
stated:
__________
23
The Court still vacated the PCRA court order that vacated the death penalty and granted a new
penalty phase hearing. It remanded to the PCRA court to allow Jones to plead and argue his
claim of layered counsel ineffectiveness which is whether his appellate counsel had a reasonable
basis for failing to argue that trial counsel was ineffective for failing to investigate and present
evidence of the Section 9711(e)(3) and (e)(8) mitigators and whether appellate counsel’s failure
in this regard prejudiced Jones.
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CP-21-CR-0794-1995
It is well established that trial counsel has an “obligation to conduct a
thorough investigation of the defendant’s background.” Gorby, 787 A.2d
at 371-72; Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d
389 (2000). This obligation includes the duty “to discover all reasonably
available mitigating evidence and evidence to rebut any aggravating
evidence that may be introduced by the prosecutor.” Commonwealth v.
Hughes, 581 Pa. 274, 865 A.2d 761, 813 (2004) (quoting Wiggins v.
Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). The
reasonableness of a particular investigation depends upon evidence
known to counsel, as well as evidence that would cause a reasonable
attorney to conduct a further investigation. Hughes, 865 A.2d at 813-14;
Wiggins, 539 U.S. at 527, 123 S.Ct. 2527. At the same time, counsel’s
obligations do not require an investigation into “every conceivable line of
mitigating evidence no matter how unlikely the effort would be to assist
the defendant at sentencing.” Id. at 533, 123 S.Ct. 2527.
Presenting evidence to the jury on a capital defendant’s background, education,
employment, mental health, and any childhood abuse, neglect and family dysfunction,
is a constitutional constituent to a valid sentencing scheme, and the significance of
counsel’s role in evaluating this information has been recognized as essential. See
Commonwealth v. Hughes,
865 A.2d 761 (2004). The Supreme Court stated:
It is the duty of the lawyer to conduct a prompt investigation of the
circumstances of the case and to explore all avenues leading to facts
relevant to the merits of the case and the penalty in the event of
24
conviction.
24
Commonwealth v. Romero,
In 938 A.2d 362 (Pa. 2007), which upheld a denial of a petition
for post-conviction relief in a capital case where the trial occurred in 1996, and rejected a claim
that trial counsel was ineffective for failing to investigate, develop, and present substantial
mitigating circumstances, Justice Eakin, who authored the opinion of the court, stated that “[t]he
degree of investigation required for capital counsel to not be deemed ineffective had not evolved
to the extent currently required.” He concluded that a review of counsel’s conduct required the
court to evaluate it from counsel’s perspective at the time. That conclusion did not carry the
Commonwealth v. Williams,
support of a majority of the Justices. See 2008 WL 2420903, FN 6
(Pa.).
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CP-21-CR-0794-1995
An adequate review of Spotz’s claim requires that we first review the evidence
that Attorney Andrews did present to the jury in the penalty phase of the trial. Jean
Redden, the maternal grandmother of Spotz, testified that she has known Spotz since
he was born. She identified a chart that was admitted into evidence and that followed
Spotz from when he was born on February 14, 1971, through the first eighteen years of
his life. When he was born, he and his mother, Jean Newpher, lived in Redden’s
home. At that time his older brother Dustin was a year and four months old. In August
of 1971, the mother married Bill Beish and the two boys went to live with them. Spotz
lived in the Beish household until May, 1976, during which time another child, Annette,
was born. The mother left Beish and moved her children into another home. They
moved from there to Indianapolis, Indiana, into the home of her sister where they lived
from August, 1976, until March of 1977, when they returned to Clearfield County.
25
Annette went to live in Dauphin County with another sister of Jean Redden. In
September of 1977, Mark and Dustin were moved into a children’s home in Clearfield.
th
On October 8, Jean Redden and her husband then got the children who lived with
them until June, 1979, when she took the boys to the mother and Darrall Newpher in
Ravenna, Ohio. The mother, Newpher and the two boys moved back to Clearfield
County in September, 1979. For ten days in 1983, they were under the control of the
Clearfield Aid Society. From February 2, 1984, until March, 1984, they were at the
__________
25
Annette was later adopted.
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CP-21-CR-0794-1995
Milton Hershey School after which they went to live with their father, Danny Spotz.
Mark Spotz stayed with his father for about a month and then went to live with his
mother and stepfather. In September, 1984, the mother, stepfather and Mark Spotz
went to live in Alabama, but they were back in Clearfield County by the end of 1984.
Mark Spotz broke his back in an accident in 1984. He was living with his mother and
Darrall Newpher, but Jean Redden was providing much of his home care. Redden
described the dilapidated home they were living in as “terrible.” Between the end of
January, 1985, and June, 1985, the boys were living in Clearfield with foster parents,
then with other foster parents. Between July 3 and July 25, 1985, they were in a third
foster home. From July 25, 1985, until September 12, 1985, they lived in the Ampcet
Home, a boys’ home in Bigler, Pennsylvania. On September 12, 1985, Mark Spotz
moved in with his mother and Darrall Newpher. During this time, he went to an
intermediate school unit for socially and emotionally disturbed children. In December,
1987, he was charged with an offense involving a fire at a drugstore, and he was
placed in a detention center in Bellefonte. He was discharged in September of 1988,
and his mother and Darrall Newpher took him to St. Cloud, Florida. Spotz was later
placed in another juvenile facility in Indiana, Pennsylvania, at the beginning of 1999,
where he stayed until he was released on his eighteenth birthday.
Jean Redden testified to an incident when Beish held a lighter to the back of
Dustin’s hand and burned it until it was scared and scabbed. Beish told her that he did
this in order to teach Dustin a lesson. Redden saw the injury. There were other times
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CP-21-CR-0794-1995
that Redden saw marks indicating that Beish had physically abused Spotz’s mother.
Redden was personally aware of Darrall Newpher drinking excessively and being
physically abusive to the boys and their mother. On one occasion she saw marks on
the boys’ butts. They had been put there by a leather strap, and they could not sit
down for three days. Their mother wrote a note to the school that they were sick those
days. There were times when Jean Redden bought the children clothes and helped
pay the family‘s utilities so that they would have heat and electricity.
Molly Muir, the administrator of Clearfield County Children and Youth Services,
who had worked for that service since 1984, testified to the Agency’s extensive
involvement with Mark, Dustin and their family. She reviewed records that outlined the
depression and severe emotional problems of the mother and set forth that the mother
never wanted to have Dustin and Mark. She wanted to hurt them and to adopt them
out. They were always a burden to her, and she never loved them. The Spotz
marriage ended in 1971, and the mother was married to Beish between October, 1974,
and August of 1976. Muir reviewed the many placements of Dustin and Mark due to
the severe family dysfunction and uncontrollable behavior of the children. Those
placements included a period of time with their grandmother, Jean Redden, as well as
the various foster parents and group homes. Muir outlined how Spotz was adversely
affected by Dustin’s anger, resentment and aggressive behaviors. Her testimony is
replete with incidents of Dustin’s volatile nature which resulted in him being
involuntarily committed to DuBois Hospital in 1984, and later to George Junior
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CP-21-CR-0794-1995
Republic.
Stephen Ragusea is a board certified forensic psychologist with a doctorate in
clinical psychology. Dr. Ragusea testified that he was retained to look into: anything
related to the issue of psychology that might be pertinent to the case, whether or not an
insanity defense might be appropriate, whether or not Spotz was competent to stand
trial, and whether there were any factors in the case which might be considered
mitigating factors. He interviewed Spotz at SCI Camp Hill, reviewed many records from
his whole life including Children and Youth Service records, prison reports, arrest
records, testimony in various hearings that had been conducted up to that point, and he
listened to tape recordings of investigators speaking to various individuals who know
Spotz, including his mother, Jean Newpher, and his grandmother, Jean Redden. His
clinical evaluation included many hours of interviewing Spotz and ten or twelve hours of
testing. His review included “hundreds of hundreds of pages of documents, including
past psychological evaluations.”
Dr. Ragusea testified that among his conclusions he found this case to be:
one of the most appalling descriptions of how society’s safety
mechanisms for children haven’t worked. Mark Spotz had an awful
childhood and an awful adolescence. As you look at this guy’s life, he
went – he lived in something like twenty-three different places, he went to
. . . eleven different public schools and specialized schools before he
finally dropped out in the eleventh grade. He was abused. At the very
least, we have evidence for physical abuse. He also contends he was
sexually abused by his brother, by his step-father, and by others. In
addition to all that, we know that he was neglected for long periods of
time. We know that his mother vacillated back and forth, based upon the
records, from saying I hate this child, take him away from me, I don’t love
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CP-21-CR-0794-1995
him, I have never loved him, I don’t ever want to see him again; to saying,
all of you people in the Children’s Services Agency are bad people
screwing up my family, stay out of my life and I take care of my kids.
Bring them back to me. And so this kid went back and forth, back and
forth, between his mother and something like a dozen different other
people and institutions at various times.
Dr. Ragusea testified that the type of abuse suffered by Spotz is likely to lead to
violent behavior. The mental illnesses that he suffered from tend to lead individuals
into having trouble with reality. He noted that Spotz had been subject to the violence of
being hit as a child with a belt, and to the extraordinary violence of having his hand
burned by his father and being stabbed by his brother Dustin. He considered Spotz to
have been vulnerable from the beginning because of continual neglect and abuse. His
childhood use of marijuana started by being introduced to it by his father at age seven.
His home was one in which drugs were commonly used, bought and sold. Mark Spotz
told him that he was used as a drug runner in his home. Dr. Ragusea noted that
Dustin’s death occurred after he said he was going to kill everybody in the house. After
that statement, Spotz got a gun, got into a fight with Dustin who stabbed him in the
back two times; they got into a fight to the death, and he killed Dustin.
Dr. Ragusea diagnosed attention deficit hyperactive disorder and poly-
substance abuse in that he abused different substances: marijuana, cocaine, hashish
and alcohol. Spotz had a history of sexual abuse, psychological abuse, and neglect.
He suffered from post-traumatic stress disorder following the death of his brother. He
had a mixed personality disorder. He never had the kind of paternal guidance or love
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CP-21-CR-0794-1995
that would allow him to develop in a normal way. His personality disorder was reflected
in his having trouble maintaining intimate relationships with others, his tendencies to be
impulsive and self-destructive, and his having trouble being in contact with reality. He
exhibited anti-social behavior, repeatedly getting into trouble with the law. He broke
the law and broke the rules. He had features of a schizotypal personality which speaks
to his having trouble being in contact with reality.
Dr. Ragusea testified that Spotz was under the influence of extreme mental and
emotional disturbance. He thought, although he was not certain, that Spotz could have
conformed his conduct to the law if he chose to, “the reason for that having to do with
the fact that Mark Spotz told me that he did not commit these murders. And, therefore,
any time I asked him what was it like at the time of the murder, what were you thinking,
he said I was unconscious behind the driver, I was lying in the backseat of the car. So,
as far as I was concerned, he couldn’t explore that area really at all. But, in general,
my answer is I couldn’t tell.” However, when asked hypothetically if Spotz had
committed the offense as charged could he offer an opinion as to whether he had been
subject to an extreme mental and emotional disturbance that would bear upon his
ability to conform his conduct to the law, he answered, “It could have impacted him
adequately so that he would have trouble doing it.” He also opined that if Spotz had
been taking LSD or other drugs prior to the crime, that could have potentially influenced
his ability to conform his behavior.
Karen Socoski, one of Spotz’s foster parents, testified that when Spotz lived in
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her household he was extremely disruptive. She felt that he had never been given an
opportunity to develop a conscience. She was unable to continue to live with him and
had Children Services remove him from her home.
Elaine Elensky was Spotz’s third grade teacher in 1979-80. She testified that
while Spotz was bright and creative, he had significant disruptive behavior problems.
There were times when she wrote weekly to his parents. His stepfather did not speak
up and his “mother was often defensive and seemed to be blaming other children, felt
that we were picking on hers.”
Lorraine Page, Spotz’s great-aunt, testified that she and her husband adopted
Annette. Before the adoption she had witnessed situations in the mother’s home when
there was not enough food for the family. She remembered how upset Mark and Dustin
were when their mother enrolled them in the Milton Hershey School. Dustin ran away
from the school on one occasion and came to her house.
Annette Perkins, the adopted daughter, testified that the few memories she had
of living with her mother were negative.
Nancy Jo Dale is a second cousin of Spotz. She babysat Mark and Dustin
between 1971 and 1976. When she was sixteen and seventeen years old there were
times when there was not enough food in the house so she would ask her parents for
food and take it to them. She felt the children were ignored and needed love.
Carol Dale, the mother of Nancy Jo Dale, is Spotz’s great-aunt. There was one
occasion where she stepped in because she felt Mark needed help and took him into
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CP-21-CR-0794-1995
her home. She hoped to keep him indefinitely as he was the same age as her son.
Because of the needs of her own family, she later felt that she could not continue to
keep him and arranged through a court for him to leave. Spotz was fourteen at the time
and his brother Dustin was in George Junior Republic.
David Thompson, a psychologist, has been the director of psychological
services at the Milton Hershey School since 1967. As part of the admission process,
Spotz told him that his home life was psychologically and physically abusive. Mark and
Dustin stayed at Hershey for only about a month when they were in seventh grade.
Dustin exhibited aggressive behavior, was extremely difficult to live with, and ran away.
He was discharged. Mark’s adjustment was satisfactory during the time he was there.
Two days after Dustin was discharged his mother signed Mark out and he never
returned to the school.
Jean Newpher, Spotz’s mother, testified that she was separated from Mark’s
father, Danny Ray Spotz, by the time Mark was born. She was living at 810 Martin
Street, Clearfield. She married Bill Beish in May, 1971, and they had a daughter
Annette and a son Nathan. Nathan died in his crib in April, 1973, six weeks after his
birth, from sudden infant death syndrome. Her husband blamed Dustin for killing
Nathan because Dustin had been the last one to hold him while he was awake. Dustin
then stopped associating with his stepfather. She left her husband in May, 1976,
because both she and the children were abused by him. She described incidents of
abuse including hitting, the children being locked in their bedrooms immediately after
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CP-21-CR-0794-1995
supper and made to stay there until morning, and the lighting of a book of matches on
the back of Dustin’s hand and watching it burn.
She moved with Dustin and Mark to Indiana where they stayed with her sister,
and then they moved to Indianapolis, Indiana. They then came back in March, 1977,
and lived in Curwensville, Clearfield County. In September, 1977, Mark and Dustin
went into the custody of Children Services. The boys then went to live with their mother
during which time she met Darrall Newpher. She and Darrall went to North Carolina,
then to Ravenna, Ohio. In June of 1979, her mother brought Mark and Dustin to them.
She testified that Dustin was the one she always had trouble controlling. When Dustin
was not around, she did not have trouble controlling Mark. When Dustin was around,
Mark would follow his lead. Mark admired Dustin but there were times when they would
fight, and there were several times that Dustin cut Mark with a knife or other sharp
object. She testified that during “Mark’s whole life Dustin was beating up on him,
hurting him.” She described in detail many of those altercations. She described how in
December, 1987, Mark was charged regarding a fire in a drugstore in Curwensville and
was placed in detention. He was adjudicated for a lesser charge having to do with the
fire and sent to Adelphoi Village. Mark was released and the family went to Florida for
a month. They then returned to Curwensville.
Tonya Grove dated Mark Spotz. She described how he was good with her
children. They lived together for about two and a half months in 1992. Crystal Miller is
a cousin of Mark Spotz. She testified that there was a time in Curwensville when she
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CP-21-CR-0794-1995
was staying in the home of the boys, and Dustin would wake her up in the morning
touching her. She described Mark as her protector. She was nine or ten years old at
the time. She never told her parents about these incidents because she was afraid to.
Linda Spotz married Mark Spotz on May 28, 1995. She knew him about two
years before she married him. At the time she married him, he was already imprisoned
on these charges. She testified that Mark was her best friend, somebody very special
to her, and she realized she had taken him for granted as he was always there for her.
She was aware that he had a problem with drugs. He smoked marijuana, used LSD
and crack, and drank beer. He was very different when he was using drugs.
In this post-conviction proceeding, Spotz maintains that Attorney Andrews was
ineffective for failing to discover and present evidence of the full scope of his
dysfunctional family including his relationship with his brother Dustin, and the
emotional, sexual, and physical abuse he suffered as a child. A component of this
argument is that Attorney Andrews failed to secure his entire Children and Youth
Services records and those of his family. With regard to petitioner’s claim, Dr.
Ragusea testified that post-conviction counsel has provided to him a large amount of
material that he did not have at trial. That has enabled him to get a better picture of
petitioner’s background than he had at the trial. At trial, he did not have the psychiatric
history of petitioner’s biological father, Danny Spotz. The information he had from Jean
Redden did not include any sexual abuse of petitioner. The information he had as to
sexual abuse of petitioner was not in the detail that the current investigation revealed.
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CP-21-CR-0794-1995
Before the trial, petitioner told him of sexual abuse but greatly understated it. The more
extensive information he now has, including additional information that Spotz himself
has given him as to the extent of the abuse he suffered growing up and his greater
knowledge of petitioner’s family dysfunction, warrants moving his diagnosis up from a
mixed personality disorder to a specific personality disorder which is a schizotypal
personality disorder. The prior diagnosis included an acute distress disorder which he
now believes is a chronic post-traumatic stress disorder.
The mitigator at 42 Pa.C.S. Section 9711(e)(2) is: “The defendant was under the
influence of extreme mental or emotional disturbance.” While Dr. Ragusea testified at
trial that Spotz met the E-2 statutory mitigator by being under the influence of extreme
emotional disturbance, he testified at the post-conviction hearing that based on the
additional information he has he could testify to the E-2 mitigator “with a much greater
degree of certainty now because the emotional disturbance was far greater and far
bigger than it was – that was related to that single incident with his brother. His level of
emotional disturbance was broader, deeper, more severe than I had an appreciation for
based upon the evidence that I had available to me at the time.”
The mitigator at 42 Pa.C.S. Section 9711(e)(3) is: “The capacity of the defendant
to appreciate the criminality of his conduct or to conform his conduct to the
requirements of law was substantially impaired.” Ragusea testified that at the time of
trial it was difficult for him to reach a conclusion as to this mitigator. Now he testified:
Given that it is impossible for us to be inside somebody’s head, there are
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CP-21-CR-0794-1995
limits to what we can conclude. But to a degree that psychologists can
make such a determination, yes, within a reasonable degree of
psychological certainty I can say that he did not have the capacity to
appreciate the criminality of his conduct.
Based on what he knows now about petitioner’s drug use at the time Betty
Amstutz was killed, Ragusea is of the opinion that Spotz “would have had difficulty
conforming his conduct to the requirements of the law” in the sense that he “would have
been substantially impaired.” Ragusea further testified that based on his current review
of Children and Youth records it is his opinion that Spotz was a person “who could
26
have been helped and saved.”
__________
26
To support Dr. Ragusea’s revised diagnosis, Spotz had Robert A. Fox, Jr., M.D., and Neil Blumberg, M.D.,
testify at the post-conviction proceeding. Dr. Fox, a psychiatrist, testified that he conducted two forensic
evaluations of Spotz long after the murder of Betty Amstutz. The first took place in September of 2000, and the
second on February 3, 2007. Based on these evaluations, and based on mental health records, prison records,
Department of Children and Family Service records, and statements from people who knew Spotz, Dr. Fox
diagnosed him as of the time of the murder with post-traumatic stress disorder, chronic and severe with
psychotic features; poly-substance dependence; obsessive compulsive disorder; and borderline personality
disorder.
Dr. Fox’s diagnoses differed slightly from Dr. Ragusea’s revised diagnoses, which he testified to at the
post-conviction hearing. They both testified to Spotz having chronic post-traumatic stress disorder, which
existed prior to the killing of Dustin Spotz, and poly-substance dependence. But, while Dr. Ragusea diagnosed
Spotz with a schizotypal personality disorder, Dr. Fox diagnosed him with a borderline personality disorder. Dr.
Fox added a diagnosis of obsessive compulsive disorder. Dr. Fox agreed with Dr. Ragusea that Spotz met two
mitigating circumstances as defined at 42 Pa.C.S.A. § 9711(e). First, he testified that Spotz “was suffering from
See
an extreme mental or emotional disturbance at the time of the killing.” 42 Pa.C.S.A. § 9711(e)(2). Second,
See
he testified that Spotz “was not able to appreciate the criminality of his conduct.” 42 Pa.C.S.A. §
9711(e)(3).
Dr. Fox testified that “unless one has background information . . . it’s almost impossible to get an
accurate picture of the person’s past history which is a crucial element in making a complete and accurate
diagnosis,” and that much of the collateral information he was given prior to his evaluating Spotz was not
available to Dr. Ragusea at the time of trial and that Dr. Ragusea would have been able to arrive at the same
diagnosis he testified to at the PCRA hearing if Dr. Ragusea had had this collateral information at trial.
(Contrary to this testimony, Dr. Fox testified at Spotz’s PCRA hearing in Schuylkill County that “the absence of
these records [the collateral information not available at the time of defendant’s trial] would [not] have materially
Commonwealth v. Spotz
affect[ed] [Dr. Ragusea’s diagnosis].” , 896 A.2d 1191, 1234 (Pa. 2006)).
Dr. Blumberg, a forensic psychiatrist, testified that he conducted a psychiatric forensic evaluation of
Spotz on October 19, 2005, and November 6, 2006, long after the murder of Betty Amstutz. This evaluation
was a combination of history taking, direct observations of Spotz, and psychological testing. The history taking
portion of the evaluation consisted of a family history, a past psychiatric history, a past legal history, and a
personal history. While Dr. Blumberg was taking these histories, he was conducting a mental status
examination which consisted of “making observations about [Spotz’s] behavior and demeanor during the course
of the interview, his appearance, [and] the different patterns of his speech.” Dr. Blumberg also did various
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CP-21-CR-0794-1995
screening tests to determine if Spotz suffered from any brain damage or cognitive impairment.
Based upon his evaluation, Dr. Blumberg offered an opinion that Spotz suffered from three different
mental disorders at the time of the murder: post-traumatic stress disorder, chronic, severe; personality disorder
not otherwise specified with dependent schizotypal, borderline and antisocial features; and poly-substance
abuse. Like Dr. Fox and Dr. Ragusea, he also testified that Spotz suffered from post-traumatic stress disorder
which is chronic and severe and from poly-substance abuse. All three testified that Spotz suffered from a
personality disorder but disagreed about the type of personality disorder. Dr. Blumberg diagnosed Spotz as
having a personality disorder not otherwise specified with dependent schizotypal, borderline and antisocial
features; Dr. Fox diagnosed Spotz as having a borderline personality disorder; and Dr. Ragusea diagnosed
Spotz as having a schizotypal personality disorder. Dr. Blumberg made no reference to the statutory mitigators
found at 42 Pa.C.S. §§ 9711(e)(2)-(3).
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CP-21-CR-0794-1995
Attorney Andrews testified at the post-conviction proceeding that because Spotz did not
admit that he killed Betty Amstutz, he did not pursue the level of his drug use in the
time frame of the killing because there was not going to be a diminished capacity
defense. He did not seek to present evidence at the penalty phase of any drug use of
Spotz at the time of the killing because he did not believe it would be in the best
interest of Spotz. Rather he presented positive mitigation evidence through Dr.
Ragusea and others. Attorney Andrews testified that he was involved in a coordinated
investigation effort with the defense in all of the counties except Clearfield County in
which Spotz was convicted of killing his brother Dustin. Andrews had his own
investigator, and he retained Dr. Ragusea, who testified for the defense in the
Schuylkill County and York County capital cases. Andrews did two recorded life story
interviews with Spotz. He recognized that Spotz had a dysfunctional family history and
that Dustin had violent propensities. He believed that he had obtained the entire
Clearfield County Children and Youth files for both Mark and Dustin from Molly Muir.
He met personally with Jean Redden. She was anxious to help Spotz and wanted to
assist him. He tape recorded an interview with her in which he thought she was
forthcoming. His investigator also separately talked with Redden. Much of the problem
for Andrews was that Spotz, in his many interviews with Andrews and Dr. Ragusea, did
not inform them of all of the details of his dysfunctional family and/or of the extent of his
claimed neglect and abuse, including sexual abuse, he suffered while growing up.
Jean Redden in particular failed to reveal the full extent of the abuse that she testified
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CP-21-CR-0794-1995
Commonwealth v. Bracey,
to at the post-conviction hearing. See 795 A.2d 935 (Pa.
2001), (stating that counsel cannot be deemed ineffective for failing to present
evidence of abuse that the defendant and his family failed to reveal during
consultations with counsel). An “evaluation of counsel’s performance is . . . highly
deferential, and the reasonableness of counsel’s decisions cannot be based upon the
distorting effects of hindsight. . . . [R]easonableness in this context depends, in critical
Commonwealth v. Rega
part, upon the information supplied by the defendant.” , 933
A.2d 997, 1025-26 (Pa. 2007) (internal quotations and citations omitted).
The post-conviction testimony of Jean Redden in comparison to her trial
testimony is a matter of degree. We conclude, as did the Supreme Court in the
Schuylkill County post-conviction proceeding where the same issue was raised, that:
Spotz has failed to show how the result of his penalty hearing
would have been different had this additional testimony of Redden been
presented. We fail to see how the absence of Redden’s newly offered
testimony at the PCRA hearing “so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have
taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). Accordingly, counsel will not
be deemed ineffective for failing to present testimony, the absence of
which did not prejudice Spotz.
Commonwealth v. Spotz
, 896 A.2d 1191, 1227 (Pa. 2006).
As to the institutional Children and Youth records, the same issue was raised
and rejected in the Schuylkill County post-conviction proceedings. The Supreme Court
stated:
In continuing his argument that trial counsel was ineffective for
failing to investigate and present available mitigating evidence, Spotz
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CP-21-CR-0794-1995
contends that his trial counsel conducted no independent investigation of
available institutional records. Spotz acknowledges that his trial counsel
had been provided a variety of institutional records through a coordinated
effort with his defense counsel in the other counties where he had been
charged. Nonetheless, Spotz maintains that these institutional records,
including his Clearfield County Children & Youth records, which were
provided by Cumberland County Public Defender Taylor Andrews
(Attorney Andrews), were “woefully incomplete.” Moreover, Spotz claims
that trial counsel failed to obtain any mental diagnoses of other Spotz
family members, including the institutional records of Dustin, which,
,
according to Spotzwere necessary “to understand the shocking extent of
the abuse, neglect, and violence in the Spotz home or the genesis of the
Clearfield County incident that precipitated this killing.”
At the PCRA hearing, trial counsel explained that, because Spotz
had been charged with homicide in three different counties, the defense
attorneys in each county developed a joint investigation effort. Pursuant
to this coordinated effort, Attorney Andrews, counsel for Spotz in
Cumberland County, was in charge of investigating and gathering Spotz’s
background information concerning potential penalty phase issues. In
addition, trial counsel testified that he had sent out his own investigators
from Schuylkill County “to get additional information to supplement what
[he] had been given by the investigator that Attorney Andrews had hired.”
As Spotznotes, the Clearfield County Children & Youth records
obtained by Attorney Andrews and utilized by trial counsel were
incomplete. However, these institutional records were purposely
condensed because of their extensive volume. Because the file was so
large, joint counsel asked Molly Muir (Muir), the caseworker assigned to
the Spotz family file, to “pick out the documents that would provide the
best overview of the family’s file.” In response, Muir testified at the PCRA
hearing that she “tried to pick out examples until the case was closed that
would give the counsel an overview of how [the Spotz] family functioned
and what Children & Youth did during its involvement.”
We fail to see how Spotz was prejudiced by the failure of trial
counsel to obtain the full text of each and every available institutional
record relating to Spotz and Dustin. Contrary to the position of Spotz, the
condensed institutional records provided by Muir from Clearfield County
Children & Youth more than adequately detailed the abuse, neglect, and
violence prevalent in the Spotz household. Moreover, as referenced
above, numerous penalty phase witnesses meticulously recounted the
substantial abuse, neglect, and violence to which Spotz had been
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CP-21-CR-0794-1995
subjected at home. Hence, the jury found, by a preponderance of the
evidence, the “catchall” mitigating circumstance, namely that Spotz had
been raised in a dysfunctional household.
Spotz has failed to demonstrate that there is a reasonable
probability that, but for counsel’s alleged failure to obtain the full text of all
available institutional records, the outcome of the penalty phase would
have been different. Additional [sic], full-text institutional records
reiterating the abuse, neglect, and violence in the Spotz home would have
been merely cumulative and redundant. A defendant is not prejudiced by
the failure of counsel to present merely cumulative evidence. Thus, this
claim of ineffective assistance of trial counsel is meritless.
Id.
at 1230-31. (Citations omitted.)
In the present case, the difference in the information about Spotz and his family
that Dr. Ragusea had at trial, including the information that Jean Redden provided to
post-conviction counsel but not to trial counsel, resulted in his upgrading his trial
diagnosis of post-traumatic stress disorder to chronic post-traumatic stress disorder
and a mixed personality disorder to a schizotypal personality disorder. His trial
diagnosis of attention deficit hyperactive disorder and poly-substance abuse did not
change. As previously set forth, trial counsel was not ineffective for not having the
complete Children and Youth records available for review or because Jean Redden did
not tell him personally or his investigator all of what she told post-conviction counsel.
Trial counsel presented to the jury significant evidence as to Spotz’s background,
mental health, childhood abuse, neglect and family dysfunction. This evidence was
constitutionally sufficient to provide Spotz with a fair penalty phase hearing. We are
satisfied that the differences between Dr. Ragusea’s diagnosis of Spotz at trial and his
revised diagnosis did not prejudice Spotz because the revised diagnosis would not
-49-
CP-21-CR-0794-1995
have resulted in the jury concluding that any mitigating circumstances outweighed the
aggravating circumstances of (1) a significant history of felony convictions involving the
use of violence to the person, (2) his having been convicted of murders committed
before he killed Amstutz, and (3) the perpetration of a felony when he shot her nine
times including one lethal shot through the neck and another lethal shot to the head.
The outcome of the penalty phase would not have changed. There was no ineffective
assistance of counsel regarding the investigation, development and presentation of the
penalty phase evidence that warrants the grant of a new penalty phase trial.
II. SPOTZ IS NOT ENTITLED TO A NEW SENTENCING HEARING BECAUSE
TRIAL COUNSEL WAS NOT INEFFECTIVE FOR NOT PRESENTING EVIDENCE
THAT HE WOULD ADJUST WELL TO PRISON
Attorney Andrews testified that he sought all psychological records of Mark
Spotz from the Department of Corrections. The Department informed him that he
needed a court order. He knew that the attorneys in the York County prosecution had
prepared a motion to obtain those records. Pursuant to the York County order, the
Department sent its files that were compiled until just prior to the Clearfield County
conviction on September 26, 1995. The York County attorneys were sent these
materials on November 13, 1995, and they were forwarded to Andrews on February 26,
1996. Post-conviction counsel have discovered a report in the records of the
Department of Corrections dated January 31, 1996, which contained a note by its chief
psychologist, Franklin P. Ryan, Ph.D., that in his judgment Spotz “will adjust well to
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CP-21-CR-0794-1995
Skipper v. South Carolina,
prison life.” Spotz cites 476 U.S. 1, 106 S.Ct. 1669, 90
L.Ed.2d 1 (1986), in which the Supreme Court of the United States stated that “a
defendant’s disposition to make a well-behaved and peaceful adjustment to life in
prison is itself an aspect of his character that is by nature relevant to the sentencing
determination.”
Spotz now argues that Andrews was ineffective for not obtaining the information
in the Department’s records dated January 31, 1996, and for not using it in the penalty
Brady v. Maryland,
phase of his trial. He also maintains, citing 373 U.S. 83, 83 S.Ct.
1194, 10 L.Ed.2d 215 (1963), that the Commonwealth’s failure to produce this
mitigating information violated his due process under the Eighth Amendment. The
latter argument is without merit because the Department of Corrections provided its
records on November 13, 1995, well over three months before Dr. Ryan’s note was
made part of its records on January 31, 1996. Counsel was not ineffective for not
having these records updated immediately before trial which occurred in May, 1996,
three and a half months after the note by Dr. Ryan was generated. There is no
evidence that Spotz told Andrews that he had received an evaluation by a psychologist
in January, 1996. This same issue was raised and rejected in the post-conviction
Commonwealth v. Spotz,
proceedings in the Schuylkill prosecution. 896 A.2d 1191,
1237 (2006).
III. SPOTZ IS NOT ENTITLED TO A NEW SENTENCING HEARING BECAUSE
THE TRIAL COURT DID NOT INSTRUCT THE JURY THAT IF IT SENTENCED
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CP-21-CR-0794-1995
SPOTZ TO LIFE RATHER THAN DEATH HE WOULD BE STATUTORILY
INELIGIBLE FOR PAROLE
Spotz maintains that the trial court erred in failing to instruct the jury in the
penalty phase that if he were sentenced to life in prison he would be statutorily
ineligible for parole. He also maintains that his penalty phase counsel was ineffective
for failing to request a life without parole instruction and that as appellate counsel he
was ineffective for failing to properly present that claim in his direct appeal from the
judgment of sentence to the Supreme Court of Pennsylvania. As to the first claim, that
he “was entitled to a life without parole instruction irrespective of whether his future
dangerousness was in issue and the court should have provided the instruction sua
sponte,” this claim has been previously litigated and is not subject to further review. 42
Pa.C.S. Section 9543(a)(3). An issue has been previously litigated if “the highest
appellate court in which the petitioner could have had review as a matter of right has
ruled on the merits of the issue.” 42 Pa.C.S. § 9544(a)(2). On his direct appeal to the
Supreme Court of Pennsylvania, Spotz raised the issue that the trial court should have
instructed the jury that if he were sentenced to life in prison he would be ineligible for
Commonwealth v. SpotzSimmons v.
parole. , 759 A.2d 1280 (Pa. 2000). Under
South Carolina
, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed. 2d 133 (1994), such an
instruction is required only if the prosecution makes the defendant’s future
dangerousness an issue and the defendant requests the jury instruction. The Supreme
Court of Pennsylvania concluded that “neither of the conjunctive predicates requiring a
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CP-21-CR-0794-1995
27
Simmons instruction exists.” Consequently, the court held that “[t]he trial court did not
err in failing to issue a charge appellant was not entitled to and did not request.”
Spotz maintains that trial counsel was ineffective for failing to request a life
28
without parole instruction. In order to establish an ineffective assistance of counsel
claim, Spotz must show that:
(1) the underlying claim is of arguable merit; (2) the particular
course of conduct of counsel did not have some reasonable basis
designed to effectuate his interests; and (3) counsel’s
ineffectiveness prejudiced him.
Commonwealth v. Howard
, 538 Pa. 86, 93, 645 A.2d 1300, 1304 (1994). Spotz’s
claim fails to meet the first requirement. Since the Supreme Court has stated that he
was not entitled to a life without parole instruction because neither of the conjunctive
Simmons
predicates of was present, trial counsel was under no obligation to request
such a jury instruction. The underlying claim is not of arguable merit so the remaining
Howard
two prongs set forth in need not be addressed.
Finally, Spotz argues that appellate counsel was ineffective for failing to properly
present the claim of trial court error in his direct appeal. Specifically, he maintains that
appellate counsel was ineffective for failing to argue that the prosecution made future
__________
27
Spotz
, 759 A.2d at 1291.
28
Although this issue was not raised on direct appeal, it has not been waived. As stated in
Commonwealth v. Hubbard
, 472 Pa. 259 (1977),the law in effect at the time of Spotz’s direct
appeal, claims of ineffectiveness “must be raised as an issue at the earliest stage in the
proceedings at which the counsel whose effectiveness is being challenged no longer represents
the defendant.” Here, Spotz’s appellate counsel was the same as his trial counsel during the
penalty phase of trial, and this PCRA petition is the earliest stage at which Spotz is no longer
represented by trial/appellate counsel whose effectiveness during the penalty phase is being
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CP-21-CR-0794-1995
dangerousness an issue when it introduced evidence of his prior criminal history.
However, there is not a single instance where the prosecution explicitly made reference
challenged.
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CP-21-CR-0794-1995
to any future dangerousness of Spotz. An argument that the prosecution made future
dangerousness an issue impliedly by focusing on his past behavior, including prior
criminal activity and evaluations of his mental health, does not afford relief. In
Commonwealth v. May
, 710 A.2d 44 (Pa. 1998), the Supreme Court of Pennsylvania,
Commonwealth v. Speight
citing , 677 A.2d 317 (Pa. 1996), stated that “a jury must be
informed that life means life without the possibility of parole only when the prosecutor
May
injects concerns of the defendant’s future dangerousness into the case.” In , the
“appellant reason[ed] that by raising the aggravating circumstance of a significant
history of felony convictions involving the use or threat of violence to the person, the
Commonwealth injected the issue of his future dangerousness into the sentencing
Id
hearing.” . The court found this claim meritless, stating that “appellant’s prior record
for violent felonies addressed only appellant’s past conduct, not his future
29 Id
dangerousness.” . Here, the underlying claim is not of arguable merit; therefore,
appellate counsel was not ineffective for failing to raise it in the direct appeal.
IV. SPOTZ IS NOT ENTITLED TO A NEW SENTENCING HEARING BECAUSE
TRIAL COUNSEL WAS NOT INEFFECTIVE IN NOT OBJECTING TO THE
INTRODUCTION OF HIS PRIOR CONVICTIONS FOR BURGLARY IN SUPPORT OF
__________
29
This reasoning here is consonant with that of the Supreme Court of the United States as
SimmonsSimmons
stated in . In , the Court stated that “[t]he defendant’s character, prior
criminal history, mental capacity, background, and age are just a few of the many factors, in
addition to future dangerousness, that a jury may consider in fixing appropriate punishment,”
Simmons
, 512 U.S. at 163, making it clear that criminal history and mental capacity are distinct
categories from future dangerousness.
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THE AGGRAVATING FACTOR AT 42 PA.C.S. SECTION 9711(d)(9)
This same argument was raised and rejected by the Supreme Court of
Pennsylvania in the Spotz post-conviction proceeding in Schuylkill County.
Commonwealth v. Spotz,
896 A.2d 1191, 1240-42 (Pa. 2006). The Supreme Court
Commonwealth v. Bracey,
had determined that such evidence was admissible in 662
A.2d 1062 (Pa. 1995).
V. SPOTZ IS NOT ENTITLED TO A NEW SENTENCING HEARING BECAUSE OF
COMMENTS MADE BY THE PROSECUTOR DURING THE PENALTY PHASE
Spotz maintains that various comments made during the penalty phase of the
trial which were not objected to by his counsel warrant a new death penalty hearing.
Those comments were as follows:
I am required by law to be in front of you. I did ask each one of you when
you were questioned about being a juror on the case if you could promise
me that in an appropriate case, you could vote for the death penalty. I
have to now ask each and every one of you to live up to that oath, to be a
juror.
* * *
[E]very time I do this, I look in your faces, all the jurors look the same,
every time.
It’s always easy to talk about the death penalty when you are out on the
street and you hear about all the polls and everything else. But
fortunately there are few people like you or like me that ever get
personally involved in it.
We are here because of certain things. I have a duty as the elected
prosecutor for the people of Cumberland County to present cases where
the law says that the penalty should be death.
You, by I guess sheer chance of lot, got chosen to take on a special duty
to follow the law . . . .
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Don’t ever lose sight of the fact of why we are both here. It is because of
the actions that that man chose . . . . We are here to set the appropriate
sentence.
* * *
I’m sure Mr. Andrews, doing his job as he is required, is
going to have a long list of things that we heard yesterday.
***
[T]he Doctor [said] that every time somebody gets in trouble
their profile will probably fit into that diagnostic manual.
***
I pointed it out before, the computer suggested that this is
an invalid profile due to exaggeration tendencies.
***
To accept that mitigation that has been presented to you – and think
about it – he has got that for the rest of his life, anything he does now is
mitigated because of his childhood. No responsibility to society. No
responsibility to make some positive choices about don’t take one of
these [a gun] and do that to an old woman.
Commonwealth v. Stokes,
In 839 A.2d 226, 231-32 (2003), the Supreme Court
of Pennsylvania stated: “[d]uring the sentencing phase of a capital case, a prosecutor
must be afforded reasonable latitude in arguing his position to the jury and he may
employ oratorical flair in arguing in favor of the death penalty.” A new trial should be
granted only where remarks were prejudicial to a jury such that it was incapable of
Commonwealth v. Carson,
rendering a true verdict. 913 A.2d 220 (Pa. 2006). Spotz
argues that the statement by the prosecutor that he was required by law to be in front of
the jury at sentencing was incorrect because the prosecutor has discretion to seek a
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death penalty. However, once the prosecutor chose to seek the death penalty, he was
required by law to be in front of them. The remark was not prejudicial nor did it imply
that the jury was required to impose the death penalty. Spotz also argues that the
prosecutor misrepresented and trivialized the testimony of Dr. Ragusea. The
prosecutor may make fair comment on the evidence and seek to have the jury find facts
and draw certain inferences that are favorable to the Commonwealth.
Additionally, Spotz argues in his PCRA brief that the prosecutor: (1)
“impermissibly burdened the defense presentation of mitigation by suggesting that
Mark Spotz’s life should not be spared because he failed to advance particular
statutorily enumerated mitigating circumstances that were irrelevant to his case;” (2)
improperly argued that the fact that the killing was willful, deliberate, and premeditated
is an element of an aggravating circumstance by stating that part of the jury’s special
duty was to “decide the appropriate sentence for the willful, deliberate, and
premeditated killing of Betty Amstutz;” (3) “made materially false statements of facts
that were not in the record concerning the burglaries that the Commonwealth employed
as evidence of the significant history aggravating circumstance;” (4) “suggested to the
jury that it was only getting a partial picture of Petitioner’s criminal record;” (5)
“misstated the legal definition of the significant history aggravating circumstances in a
manner that relieved the Commonwealth of its burden of proving every element . . .
beyond a reasonable doubt;” and (6) misstated the burden of persuasion at sentencing
by stating that a juror must find that mitigation outweighs aggravation to impose a life
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sentence.
It is the jury that finds the facts upon which they apply the law charged by the
judge upon which they render a verdict. The closing of counsel is argument only.
Nothing stated by the prosecutor was so prejudicial that the jury was incapable of
rendering a true verdict. There was no ineffectiveness by counsel that would warrant
the grant of a new penalty phase trial.
VI. SPOTZ IS NOT ENTITLED TO A NEW SENTENCING HEARING BECAUSE
TRIAL COUNSEL WASNOT INEFFECTIVE FOR NOT OBJECTING TO A CHARGE
THAT DID NOT SHIFT THE SENTENCING-STAGE BURDEN OF PERSUASION
FROM THE COMMONWEALTH TO THE DEFENDANT AND DID NOT INCLUDE A
PRESUMPTION OF LIFE INSTRUCTION
Commonwealth v.
In Spotz’s direct appeal from the judgment of sentence,
Spotz,
759 A.2d 1280 (Pa. 2000), he contended that the trial court’s penalty phase
definition of the term preponderance of the evidence in explaining his burden of proving
mitigating circumstances was erroneous. He maintained that the court failed to
adequately convey the difference between the Commonwealth’s burden (beyond a
reasonable doubt) and his burden (preponderance). As set forth in the opinion of the
Supreme Court, the trial court gave the following instruction regarding the relative
burdens of proof at the penalty phase.
The Commonwealth must prove any aggravating circumstance
beyond a reasonable doubt. This does not mean, as I told you
before, that the Commonwealth must prove the aggravating
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circumstance beyond all doubt and to a mathematical certainty. A
reasonable doubt is the kind of doubt that would cause a
reasonable and sensible person to hesitate before acting upon an
important matter in his or her own affairs. A reasonable doubt must
be a real doubt [,] it may not be one that a juror imagines or makes
up to avoid carrying out an unpleasant duty. By 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
evidence.
N.T. 5/16/96 at 1905-06. The court further emphasized the
Commonwealth’s higher burden, as follows:
This different treatment of aggravating and mitigating
circumstances is one of the law’s safeguards against unjust death
sentences. It gives a defendant the full benefit of any mitigating
circumstances. It is closely related to the burden of proof
requirements. Remember, the Commonwealth must prove any
aggravating circumstance beyond a reasonable doubt. While the
defendant only has to prove any mitigating circumstance by a
preponderance of the evidence.
The Supreme Court concluded:
In assailing this charge, appellant cites to cases where the trial
court stated that the preponderance standard was a lesser burden. But
this Court has never suggested that that particular language was
required. To the contrary, in Commonwealth v. Hall, 549 Pa. 269, 701
A.2d 190 (1997), we specifically rejected a claim that a charge, materially
indistinguishable from the first quoted portion of the charge above, was
defective because it did not clarify that preponderance is a lesser
standard than reasonable doubt. We held that the charge issued in Hall,
though terse, was adequate because, [t]he trial court instructed the jury
that mitigating circumstances need only be proven by a preponderance of
the evidence and that a preponderance exists when the evidence for the
proposition to be proven is greater than the weight of the evidence
against the proposition. Hall, supra at 305, 701 A.2d at 208. The charge
here likewise accurately defined preponderance of the evidence.
Moreover, the instruction here was stronger than the charge in
Hall. In the second quoted portion of the charge, the trial court specifically
contrasted the relative burdens of the Commonwealth and appellant by
reminding the jury that the Commonwealth must prove any aggravating
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circumstance beyond a reasonable doubt. While the defendant only has
to prove any mitigating circumstance by a preponderance of the evidence.
The court also emphasized that aggravating and mitigating circumstances
were treated differently under the law. The court’s use of the terms
different, safeguard, full benefit, and its statement that the defendant only
had to prove his burden by a preponderance, clearly communicated to the
jury the qualitative differences in the respective burdens of proof.
Finally, the language used in the trial court’s charge was virtually
identical to the charge issued in Commonwealth v. Williams, 557 Pa. 207,
732 A.2d 1167 (1999). The Court in Williams held that, when viewed as a
whole, the trial court’s penalty phase instructions plainly informed the jury
concerning the relative burdens of proof applicable to aggravating
circumstances and mitigating circumstances and clearly conveyed that
Williams bore the lesser burden. Id. at 245, 732 A.2d at 1187. As this
Court has previously upheld the accuracy of this jury instruction, no relief
is warranted.
(Footnotes omitted.)
Accordingly, the trial court did not shift the sentencing-stage burden of
persuasion from the Commonwealth to the defendant. Spotz now cites a case decided
Commonwealth v. Eichinger,
by the Supreme Court in 2007, 915 A.2d 1122 (Pa.
2007), for the proposition that a court in a capital sentencing phase proceeding erred
when it failed to give a presumption of life instruction to the jury. However, in
Eichinger,
the Supreme Court stated:
Although acceptable, the words “presumption of life” are not
explicitly required to honor this concept. An explanation of the
deliberately disparate treatment of the aggravating and mitigating
circumstances under the applicable standards of proof and a clear
indication that life in prison is the sentence unless the Commonwealth
meets its high burden is sufficient to convey the fact that life is presumed.
sub judice,
In the case the charge to the jury met this standard. Since Spotz’s
underlying claim is without merit, penalty phase trial counsel was not ineffective for the
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reasons claimed.
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VII. SPOTZ IS NOT ENTITLED TO A NEW SENTENCING HEARING BECAUSE
TRIAL COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO THE
EXPLANATION OF AGGRAVATING AND MITIGATING FACTORS AS SET FORTH
IN A PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTION
The trial judge included the following in his charge to the jury on aggravating and
mitigating circumstances:
The sentence you impose will depend on what, if any, aggravating
and mitigating circumstances you find are present in this case. . . .
Loosely speaking, ladies and gentlemen, aggravating circumstances are
things about the killing or the killer which make first degree murder –
more terrible
which make a first degree murder case and deserving of
the death penalty; while mitigating circumstances are those things which
less terrible
make the case and less deserving of death.
(Emphasis added.)
This was part of a Pennsylvania suggested standard criminal jury instruction,
15.2502E, which was changed in 2005 with the following note:
The previous version of this instruction explained aggravating
circumstances as those that make the case “more terrible,” while
mitigating circumstances were those things that made the case “less
terrible.” The language was changed to the way it appears in the
instruction above for purposes of clarity and accuracy, as well as out of
fear of the prejudicial nature of the judge using the term “terrible.”
The use of the suggested instruction in 1996 was not prejudicial to Spotz and
not in error, and no court has concluded that such a charge was in error. By telling the
jury that the circumstances focused on the killing or the killer, the charge focused on
defendant. The court specifically instructed the jury concerning the aggravating and
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CP-21-CR-0794-1995
mitigating evidence presented in this case. There being no underlying merit in Spotz’s
claim, counsel was not ineffective and no relief is warranted.
VIII. SPOTZ IS NOT ENTITLED TO A NEW SENTENCING HEARING BECAUSE OF
THE CUMULATIVE EFFECT OF ALLEGED ERRORS DESCRIBED IN HIS PETITION
We have determined there were no penalty phase errors warranting relief.
Commonwealth v. May,
Spotz’s allegation fails. See 898 A.2d 559 (Pa. 2006).
POST-CONVICTION PROCEEDING
I. IT WAS NOT ERROR IN THE POST-CONVICTION PROCEEDING TO DENY
SPOTZ’S REQUEST FOR DISCOVERY
During the trial, the Commonwealth called Donald Bloser a forensic scientist who
works primarily in serology in the Pennsylvania State Police Laboratory. Bloser
identified a Phoenix Suns jacket, Exhibit 73, in which he found some stains of human
origin on the left arm and right pocket. Bloser cut out the stains and turned them along
with the jacket back to an investigator to be forwarded to Cellmark Diagnostics for DNA
testing. Bloser also prepared blood samples of Mark Spotz, Christina Noland, Dustin
Spotz, Penny Gunnet, June Ohlinger and Betty Amstutz for testing. The blood came
into the laboratory in vials and was put on white cotton cloth, dried, frozen and stored.
This procedure was utilized because otherwise the blood breaks down faster and can
become non-suitable for DNA analysis. These frozen samples were prepared for DNA
testing. Bloser also examined a set of Fila sneakers, Exhibit 152, from which he cut out
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CP-21-CR-0794-1995
30
a sample on the right sneaker in the upper ankle area which contained human blood.
He tested the blood and found that it contained a PGM subtype different from Spotz’s
PGM subtype. This sample was returned to investigators to be forwarded to Cellmark
Diagnostics for DNA analysis. Bloser examined a coat, Commonwealth Exhibit 154,
from which he cut a sample to be sent to the investigator and then to Cellmark
Diagnostics in an attempt to do DNA testing.
On cross-examination, Spotz elicited from Bloser that he did testing on the black
hooded sweatshirt which contained blood that was Type A with isoenzymes that
matched Spotz’s profile but not the profile of any other blood collected in the case.
There was human blood on a gray Marlboro sweatshirt for which he made the same
findings. Bloser testified that he cannot say that the blood on the sweatshirts definitely
contains Spotz’s blood although it matched his blood and did not match any of the
other blood samples. Bloser testified that he found human blood on some tan jeans
that matched the profile of Spotz. He also found human blood on a pair of white socks.
Bloser tested five towels. There was no blood detected on two of them. Of the other
three, one had blood of human origin but the quantity was insufficient to determine the
blood type. The other two towels had blood of Type A and a PGM subtype which
__________
30
The sneakers were found in Spotz’s hotel room which also yielded the blood stained jeans, a
knife, nine-millimeter full metal jacket ammunition, five credit cards issued in the name of one of
Spotz’s previous murder victims, Penny Gunnet, and a note written by Spotz which itemized the
money he had stolen and his expenditures on crack cocaine and other purchases on which he
had written, a good days work. There was evidence that the sneakers were size 10 and that
Spotz’s foot size was 10 while the foot size of Charles Carothers was 13. One of the sneakers
was shoved inside an air conditioning unit.
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matches Spotz’s blood type. There was no human blood found on three white
washcloths. There was human blood which matched Spotz’s profile found on another
washcloth. On re-direct, Bloser testified that all blood found on the victim’s clothing
was consistent with her blood. He tested a page from a Donley Directory,
Commonwealth Exhibit 180, and found a drop of a substance that resembled blood. He
could not however determine if it was human blood.
31
Spotz and the Commonwealth then entered into the following stipulation:
A report was prepared by Cellmark Diagnostics dated April 5,
1995. They are a DNA laboratory at 20271 Golden Rod Lane,
Germantown, Maryland, area code 20876.
They are certified with the American Society of Crime Lab Directors
– certified with the National Crime Lab Directors, a peer review group.
The report was prepared by Melisa A. Weber, Senior Molecular
Biologist, and reviewed by Doctor Charlotte Word, Molecular Geneticist.
The report, blood samples were taken from Mark Spotz, Christina
Noland, Dustin Spotz, Penny Gunnet, and June Ohlinger. They were
compared to a Phoenix Suns jacket.
The conclusion was that there was no conclusion can be made
regarding the material labeled the left arm. However, Mark Spotz,
Christina Noland, Dustin Spotz, Penny Gunnet, and June Ohlinger are
excluded as sources of the DNA obtained from the material labeled right
pocket.
A report was prepared by the same laboratory, by Melisa A. Weber
and reviewed by Doctor Robin Cotton, Director of Laboratories. This
report is dated April 20, 1995.
In this report, the same samples as mentioned previously were
taken, and a sample of Betty Amstutz’s blood was also taken. They were
compared to a sample of blood taken from the right sneaker of
Commonwealth Exhibit 152.
Six types of analysis were done on the DNA using the PCR
method. Conclusion was that Mark Spotz, Dustin Spotz, Penny Gunnet,
31
N.T. 1133.
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and June Ohlinger are excluded as sources of the DNA obtained from the
leather cutting labeled the right sneaker. Betty Amstutz cannot be
excluded as the source of the DNA obtained from the leather cutting
labeled the right sneaker.
A report was prepared on May 3, 1996, by Melisa Weber and
reviewed by Doctor Charlotte Word. In that report, an additional four
types of testing were done.
The conclusions are that the DNA obtained from the cutting labeled
right sneaker is from a female. Betty Amstutz cannot be excluded as the
source of the DNA obtained from the cutting labeled the right sneaker.
In this post-conviction proceeding Spotz filed a written motion for discovery that
included the following:
A. Any notes, memoranda or other writings or written
communication generated with regard to the discovery, processing and/or
testing of blood evidence recovered in this case, including Mr. Bloser’s
“bench notes.”
B. A copy of the file maintained by the Pennsylvania State Police
with regard to their laboratory work done on any blood recovered in this
case.
C. A copy of the file maintained by Cellmark with regard to their
laboratory work done on any blood recovered in this case.
D. Any notes, memoranda or other writings or written
communication reflecting mishandling of any forensic evidence by the
Laboratory Division of the the [sic] Pennsylvania State Police whether or
not misconduct was found, including but not limited [sic] the cases
assigned to Donald P. Bloser.
Spotz averred in the motion for discovery that he has learned that Donald
Commonwealth v. Abdul-Salaam
Bloser, in the unrelated capital case of , 678 A.2d
342 (Pa. 1996), and 808 A.2d 558 (Pa. 2001), “had tampered with blood evidence,
falsified his results, falsely maintained that his entire blood sample had been
consumed, and withheld handwritten notes that would have revealed his deception.”
Spotz’s counsel in the present case now represents Abdul-Salaam. Spotz’s allegations
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about Bloser’s conduct in Abdul-Salaam have arisen in a federal habeas corpus
proceeding. While he has made the allegations, no such findings have been made by
the District Court. In the present case, Spotz’s motion for discovery was denied.
Pa.R.Crim.P. 902(E)(2) provides:
On the first counseled petition in a death penalty case, no
discovery shall be permitted at any stage of the proceedings, except upon
leave of court after a showing of good cause.
Spotz states in his brief: “evidence that blood of the decedent was on the shoe
of Petitioner substantially undercut [his] defense” that Charles Carothers was the
person who shot Betty Amstutz. What Donald Bloser did with respect to the sneakers,
Exhibit 152, was cut out a sample on the right sneaker in the upper ankle area. He
offered an opinion that the sneaker contained human blood of a PGM subtype different
from Spotz’s PGM subtype. None of the other blood he tested, which included the
blood of Charles Carothers, contained the PGM subtype that was on the right sneaker.
Additional testing on the blood on the sneaker was done by Cellmark Diagnostics, the
result of which Spotz stipulated to, which was that the blood sample from the right
sneaker is from a female, and Betty Amstutz cannot be excluded as the source of the
DNA obtained from the sample. There is absolutely no good cause to grant discovery
into Donald Bloser’s work on this case, much less the work that was conducted by
Cellmark and stipulated to by Spotz.
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ORDER OF COURT
AND NOW, this day of June, 2008, for the reasons set forth above,
ARE DENIED.
all of the claims of Mark Newton Spotz for post-conviction relief,
By the Court,
Edgar B. Bayley, J.
Jaime Keating, Esquire
For the Commonwealth
Robert Brett Dunham, Esquire
David Zuckerman, Esquire
Mary Hanssens, Esquire
The Curtis Center
Suite 545-W 601 Walnut Street
Philadelphia, PA 19106
For Petitioner
:sal
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COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
MARK NEWTON SPOTZ : CP-21-CR-0794-1995
IN RE: PETITION FOR POST-CONVICTION RELIEF
ORDER OF COURT
AND NOW, this day of June, 2008, for the reasons set forth above,
ARE DENIED.
all of the claims of Mark Newton Spotz for post-conviction relief,
By the Court,
Edgar B. Bayley, J.
Jaime Keating, Esquire
For the Commonwealth
Robert Brett Dunham, Esquire
David Zuckerman, Esquire
Mary Hanssens, Esquire
The Curtis Center
Suite 545-W 601 Walnut Street
Philadelphia, PA 19106
For Petitioner
:sal