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HomeMy WebLinkAboutCP-21-CR-0794-1995 (2) COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : MARK NEWTON SPOTZ : CP-21-CR-0794-1995 IN RE: SUPPLEMENTAL OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Bayley, J., August 7, 2008:-- On June 26, 2008, an order was entered, supported by a written opinion, denying the petition of Mark Newton Spotz for post-conviction relief. Spotz filed a direct appeal from the order to the Supreme Court of Pennsylvania. The appeal lists “Questions for Review” under headings I, II, III, IV A i, ii, iii, iv, v, vi, vii, viii, ix, x, xi, B, C i, ii, iii, iv, v, vi, vii, viii, ix, D, E, V. Many of these headings are not concise and several list multiple issues. Except for the issue raised in Section E regarding deductions of monies from Spotz’s prison account that was addressed in a separate opinion filed in support of an order dated April 20, 2007, this opinion is filed to address those issues 1 that were not addressed in the opinion in support of the order of June 26, 2008. I. Under Section IV C vi of Questions for Review, Spotz avers: The (d)(6) aggravator was improperly applied in this case because of defects in the statute itself; further, application of (d)(6) is inconsistent with, and barred by, the guilt verdict in this case because Petitioner was not charged with robbery and he was charged with but not convicted of second-degree murder. During the counseled post-conviction proceedings, Spotz filed a pro se __________ 1 As set forth in the prior opinion we addressed only those issues that Spotz deemed significant enough to brief. Presently, Questions for Review III, IV A iii, xi, and C iv are stated so generally that we are unable to discern what is being alleged as error. CP-21-CR-0794-1995 supplemental petition. In that petition he averred: petitioner [sic] death sentence should be overturned because a sentence of death cannot constitutionally be imposed after a jury verdict of guilt of first degree murder and robbery and/or kidnapping, and then combined to allow then [sic] to find as an aggravatinf [sic] circumstance that ‘the defendant committed a killing while in the perpetration of a felony’ under 42 Pa.C.S. § 9711(d)(6), when the jury considered and rejected, as a non-capital offense that ‘the defendant committed a killing while in the perpetration of a felony’ during the guilt stage under 18 Pa.C.S. § 2 2502(b)(d). Spotz’s characterization of the issue misstates the facts of the case. Spotz was st charged on an information with “Criminal Homicide (Murder 1 Degree).” At the guilt phase of trial, the jury was instructed that there were four possible verdicts: guilty of first degree murder, guilty of second degree murder (felony murder), guilty of third degree murder, or not guilty. “Criminal homicide” is defined at 18 Pa.C.S. Section 2501 as: (a) Offense defined.— A person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being. (b) Classification. —Criminal homicide shall be classified as murder, voluntary manslaughter, or involuntary manslaughter. The jury’s verdict of guilty of first degree murder, which is defined in 18 Pa.C.S. Section 2502(a) as a criminal homicide “committed by an intentional killing,” was not a finding of not guilty of second degree murder. At the penalty phase of the trial the jury was not precluded from finding that the first degree murder of Betty Amstutz was __________ 2 Counsel did not address this issue in the brief that was filed in the post-conviction proceeding; therefore, it was not addressed by the court. Furthermore, we did not need -2- CP-21-CR-0794-1995 committed while in the perpetration of a felony, which is an aggravating circumstance under 42 Pa.C.S. Section 9711(d)(6). The Supreme Court of Pennsylvania addressed a challenge to the 9711(d)(6) Commonwealth v. Walker aggravator in , 656 A.2d 90 (Pa. 1995), in which the 3 defendant was convicted of murder in the first degree. At sentencing, the jury found that the two aggravating circumstances at 42 Pa.C.S. §§ 9711(d)(6) (the killing was committed in the perpetration of a felony) and 9711(d)(7) (in the commission of the offense the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense) outweighed the sole mitigating circumstance and sentenced the defendant to death. On appeal, the defendant argued that the death penalty statute is unconstitutional because the definition of the 9711(d)(6) aggravating circumstance is also the definition of felony murder, a non-capital offense. The Court stated: [A]ppellant contends that the jury is provided with an “unbridled choice” of penalties because felony murder could rise to the imposition of the death penalty as an aggravating circumstance. This convoluted argument, however, confuses the guilt and penalty phases of the Crimes Code and fails to take into account that if the jury finds a specific intent to kill, the crime is first degree murder, which may be punishable by death. In the Spotz trial, the jury found a specific intent to kill and thus found Spotz to address it because it was raised in a hybrid petition. 3 The defendant was also found guilty of aggravated assault, recklessly endangering another person, criminal trespass, possession of an instrument of crime, and carrying a firearm on a public street. -3- CP-21-CR-0794-1995 guilty of first degree murder. As set forth on pp. 1-3 of the opinion in support of the order of June 26, 2008, the evidence supported a finding during the penalty phase of the trial that Spotz killed Betty Amstutz during the commission of a felony. The death sentence was not imposed unconstitutionally. II. Among the many issues raised in Section V of the Questions for Review, Spotz avers that the court erred during the post-conviction proceedings in “permitting York D.A. Rebert to be intimidatingly present and visible to Christina Noland during her PCRA testimony.” Spotz sought to sequester District Attorney Rebert while Christina Noland testified. The motion was denied. “[The] standard of review for a trial court’s Commonwealth v. decision on sequestration of witnesses is abuse of discretion.” Stevenson , 894 A.2d 759, 767 (Pa. Super. 2006). In order to obtain relief, an Id appellant must demonstrate that he or she was prejudiced by the trial judge’s ruling. . Stevenson As stated by the Superior Court of Pennsylvania in , “[t]he purpose of sequestration is to prevent a witness from molding his testimony with that presented by Id other witnesses.” . Spotz’s characterization of Rebert being “intimidatingly present” during the testimony of Noland is fanciful. Rebert’s own testimony was clearly not molded to fit the testimony of Noland. The issue at hand was whether the Commonwealth impermissibly failed to disclose to Spotz during trial an agreement with Christina Noland in exchange for her testimony against him. We concluded: 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 -4- CP-21-CR-0794-1995 Spotz at trial, much less an agreement that would have changed the outcome of the trial. The court did not abuse its discretion in allowing Attorney Rebert to be in the courtroom during the testimony of Christina Noland. There was no prejudice to Spotz when the court did not sequester District Attorney Rebert during the testimony of Christina Noland. III. Under Section IV A viii of Questions for Review, Spotz avers that “The Commonwealth’s consumption of an entire blood sample that could have exculpated Petitioner violated due process.” This claim was pleaded in the counseled post- conviction petition as: At trial the Commonwealth put forth highly incriminating evidence that Petitioner’s blood purported found on Petitioner’s sneaker did not belong to Spotz but was consistent with that of decedent. The Commonwealth, in bad faith, failed to adequately preserve this evidence. Due process was violated. A new trial must be granted. There was no evidence presented during the post-conviction proceedings as to an entire blood sample being consumed much less that such blood sample could have et seq. exculpated Spotz. The Post-Conviction Relief Act, 42 Pa.C.S. Section 9541 , at 9543(a), provides that “the petitioner must plead and prove by a preponderance of the evidence” grounds for relief that are set forth in the subsections set forth therein. In the opinion in support of the order of June 26, 2008, denying post-conviction relief we noted that at trial Donald Bloser, a forensic scientist with the Pennsylvania State Police Laboratory, testified at trial he: [e]xamined a set of Fila sneakers, Exhibit 152, from which he cut out a -5- CP-21-CR-0794-1995 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. (Footnote omitted.) We further noted that Spotz and the Commonwealth entered into a stipulation for the report of Cellmark Diagnostics, a DNA laboratory, which concluded that a sample of Betty Amstutz’s blood was taken and compared to the sample of blood taken from the right sneaker of Commonwealth Exhibit 152. The “Conclusion was that Mark Spotz, Dustin Spotz, Penny Gunnet 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.” If, in fact, the entire blood sample that Bloser examined was consumed in the testing process, that would provide no basis for the grant of a new trial. There is no evidence presented by Spotz as to whether there was any way to preserve a portion of the blood that was tested. Furthermore, unless bad faith can be shown on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of Arizona v. Youngblood, due process of law. 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). There is not an iota of evidence presented by Spotz to support the grant of a new trial based on this claim. IV Among the many issues raised in Section V of the Questions for Review, Spotz avers that the court erred in “rulings limiting discovery to the defense.” We addressed -6- CP-21-CR-0794-1995 in the opinion in support of the order of June 26, 2008, that it was not error to deny Spotz’s request for discovery into the work on the case by the forensic scientist, Donald Bloser. Therefore, we assume that Spotz is referring to the following motion for discovery that he presented to the court: Discovery Request Pursuant to Petitioner’s Claim that the Commonwealth Withheld Exculpatory Evidence Regarding Charles Carothers: 1. In Petitioner’s Supplemental Post Conviction Relief Petition, Petitioner alleges he was precluded, through court rulings and ineffectiveness of counsel, from presenting compelling evidence that Charles Carothers, Jr. was the actual killer of Betty Amstutz. There was substantial evidence implicating Carothers as the shooter. Carothers made a jailhouse confession admitting he ‘shot the bitch’ (referring to the victim in this case) and that he was going to “let the white mother-fucker [Petitioner] take it – let him fry.” Carothers was in the company of Petitioner and was seen operating the victim’s car around the time of the murder. He was observed polishing a gun the Commonwealth claims was the murder weapon. He exhibited consciousness of guilt by being visibly scared upon seeing the police and actively sought to avoid them. Undisclosed to Petitioner, however, was that Carothers was implicated in 1 another murder 30 months earlier, evidence that was highly probative to show Carother’s motive, intent and propensity to commit the instant murder. Petitioner obtained trial transcripts of one of the two trials, which confirmed that three witnesses named Carothers as the shooter in that case. See Commonwealth v. Devenshire, 1803 Criminal 1992, Cumberland County, NT 273-408 (testimony of Phillip Leon Devenshire, Jr., Baishi Jermaine Bailey, and Timothy Nealy). 1 Petitioner only learned of this evidence through a conversation with Petitioner’s trial counsel on December 21, 2006, while discussing his anticipated testimony for the pending hearing. The motion then specifically requested in Paragraph F: All witness statements in the case of Commonwealth v. Phillip Leon Devenshire, Jr., 1803 Criminal 1992, Cumberland County and the related prosecution of Baishi Jermaine Bailey and Timothy Nealy, which -7- CP-21-CR-0794-1995 reference in any context Charles Carothers. On March 12, 2007, an order was entered denying the requested item in Paragraph F but directing that: A representative of petitioner shall be allowed to review the complete file Commonwealth v. Phillip Leon Devenshire, Jr. of , under the control of the District Attorney of Cumberland County to determine if there is any evidence of such “witness statements” therein. Pa.R.Crim.P. 902 regarding post-conviction proceedings, provides: (E) Requests for Discovery (1) Except as provided in paragraph (E)(2), no discovery shall be permitted at any stage of the proceedings, except upon leave of court after a showing of exceptional circumstances. (2) 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. We actually granted Spotz more discovery than we should have. Phillip Devenshire was convicted of murder in the first degree for shooting to death Samuel L. Thompson in July, 1992. An opinion was filed of record on January 25, 1994, in 4 support of an order denying post-trial relief to Devenshire. That opinion sets forth the testimony in that trial of Charles Carothers, Baishi Bailey and Timothy Nealy. To suggest that any evidence involving the killing of Samuel Thompson in July, 1992, could have been admissible at trial of Spotz for the killing of Betty Amstutz in February, 1995, on the basis that it would be “highly probative to show Carothers’ motive, intent and propensity to commit the instant murder,” is totally without legal merit. __________ 4 Commonwealth v. Devenshire , 1502 Criminal 1992. -8- CP-21-CR-0794-1995 (Date) Edgar B. Bayley, J. -9- CP-21-CR-0794-1995 Jaime M. Keating, Esquire For the Commonwealth Robert Brett Dunham, Esquire For Petitioner :sal -10-