Loading...
HomeMy WebLinkAboutCP-21-CR-0246-2001COMMONWEALTH WILLIAM HOWARD HOUSMAN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-0246 CRIMINAL TERM CHARGES: (10) (1) CRIMINAL HOMICIDE (2) KIDNAPPING (3) THEFT BY UNLAWFUL TAKING (4) UNLAWFUL RESTRAINT (5) ABUSE OF CORPSE (6) CRIMINAL CONSPIRACY CRIMINAL HOMICIDE (7) CRIMINAL CONSPIRACY KIDNAPPING (8) CRIMINAL CONSPIRACY THEFT BY UNLAWFUL TAKING (9) CRIMINAL CONSPIRACY UNLAWFUL RESTRAINT CRIMINAL CONSPIRACY ABUSE OF CORPSE AFFIANTS: TRP. ROGER HALL TRP. SALLY WORST IN RE: DEFENDANT'S POST-SENTENCE MOTIONS OPINION I]OITITE, R, P.J. During the evening hours of Wednesday, October 4, 2000, 18-year old college student, Leslie White, was strangled and suffocated to death. After authorities from Pennsylvania and Virginia conducted a thorough investigation, defendants William Housman and Beth Ann Markman admitted to murdering Leslie. At the conclusion of a jury trial at which the undersigned judge presided, both defendants were found guilty of all charges, including first degree murder, and were sentenced to death. I. FACTS The events leading up to Leslie's murder begin on August 2, 2000, when she took a job in the camera and film department at a Cumberland County Wal- Mart store. Miss White was a budding photography student enrolled to begin at Harrisburg Area Community College for the Fall 2000 term. She took on a job at a Wal-Mart in Cumberland County not only to fulfill her interest in photography, but also to earn extra spending money for college. In the orientation class for newly-hired employees of Wal-Mart was a twenty-six year old young man named William Housman. Housman is a drifter from the mountains of southern Virginia, a high school drop-out by tenth grade, and a two-time convicted felon of auto theft.1 Miss White, an outgoing person and friendly by nature, developed a friendship with Housman and many other co-workers at Wal-Mart.2 After graduating in June 2000 from Juniata High School, Leslie was on her own for the first time in her life. By August Miss White was beginning to show typical signs of teenage rebellion toward parental authority. She began a 1 Dr. Schneider's report, p. 2; N.T. 1280-81, Notes of Testimony, Jury Trial and Penalty Phase, before Hoffer, P.J., Oct. 22-26, 2001, Nov. 1-2, 5, 2001 (hereinafter N.T. __). 2 See Wingfield, E.A.; Kerstetter, J.A. 2 relationship with Housman. Nicole Sayre, another member of the Wal-Mart orientation class of August 2, 2000, and subsequent friend of Miss White,3 recalled the romantic nature of Miss White's relationship with Housman.4 However, Miss Sayre only remembers one instance when Leslie and Housman spent an evening in a hotel together in Chambersburg, Pennsylvania.5 Miss Sayre also recollected traveling to Miss White's home in East Waterford, Juniata County, sometime during the first week of September 2000 to meet Miss White's parents and attend a local fair.6 Housman accompanied the two young women on this trip.7 Miss White drove all three in her brand-new 2000 black Jeep Cherokee.8 After arriving at Miss White's parents' home, the young women went inside, but Housman hid in the back of the vehicle in order to avoid being seen by Leslie's parents.9 However, Miss White's father discovered him when he came out to check the Jeep's mileage.1° After briefly arguing with her parents over the discovery of Housman, Miss White left with Miss Sayre and 3 N.T. 114. 4 N.T. 123. 5 Id. 6 N.T. 116. 7 N.T. 258. 8 N.T. 259. 9 N.T. 117. lO Id. 3 Housman.~ They stayed in a hotel that night.~2 The following week Miss White stayed with Miss Sayre in Miss Sayre's dormitory room at Wilson College in Chambersburg, Pennsylvania.~3 Unbeknownst to Miss White, Housman had been living in a Newville, Cumberland County trailer park in a trailer rented by the co-defendant, Beth Ann Markman. At the time, Markman was age 34. She graduated from Carlisle High School, Carlisle, Pennsylvania, in 1984 at the age of 18. Markman has been convicted five times for prostitution in New York City, convicted once for possession of a controlled substance, and convicted once for theft by deception.~'~ Although Markman is a central Pennsylvania native, born and raised in Harrisburg, Pennsylvania, she drifted from Pennsylvania and New York to Virginia, before moving to Cumberland County in 1998. Her job skills were minimal, but since receiving her Certified Nurses' Aide Certificate in 1998, Markman worked as a practical nurse/certified nursing assistant at Manor Care, a nursing home, and Advanced Health Care, an agency.~5 ~ N.T. 260. 12 N.T. 117. 13 N.T. 116-7. Miss Sayre indicated that Leslie stayed with her for four days to a week. Id. ~'~ Dr. Hughes Report, p. 4; Commonwealth Exhibit, Markman Penalty 1' Summary of Criminal Convictions. 45 Dr. Hughes Report, p. 4. 4 Markman had been living in Big Spring Terrace, a trailer park community in Newville, Cumberland County since July 1999. She rented number 112. Sandra Kautz manages the entire park. While Housman is named on the original lease application, Mrs. Kautz testified that Markman completed a second lease application in August 2000 specifically to remove Housman from the lease.16 Markman informed Mrs. Kautz at that time that she and Housman were having difficulties in their relationship, and she wanted him out of the trailer. Mrs. Kautz approved the new lease, but by September, Markman had already allowed Housman back on the premises. On September 17, 2000, Mrs. Kautz recalled hearing a loud argument between the couple.17 She also saw Markman with a black eye.18 Although this information was unknown to Miss White, she would soon learn what a jealous and vindictive temperament Markman possessed. At trial, Nicole Gutshall, a probation officer with Cumberland County, testified that she was the supervising officer of Markman for the period of August through October 2000.19 Ms. Gutshall recalled receiving a message from Markman on August 24, in which Markman stated that her phone had been shut 16 N.T. 159. 17 N.T. 165. 18 N.T. 158. 19 See N.T. 655-62 (Gutshall was supervising Markman for the crime of theft by deception [she wrote 23 bad checks in 1990] on a sentence of probation). 5 Off.20 On September 7, Ms. Gutshall received a voicemail from Markman informing her of her new job.TM On September 13, Ms. Gutshall and Markman had an office meeting. Markman told Ms. Gutshall that she had caught Housman cheating earlier, but they had since reconciled.22 Markman told Ms. Gutshall that if she caught Housman cheating again, she would kill the girl.23 Ms. Gutshall testified that her response to Markman's statement was, "1 explained to her that she cannot go around talking like that. is going to get her in a lot of trouble.''24 That if she even laid a hand on this girl, it On September 14, Ms. Gutshall ran into Markman at the Big Spring Terrace Trailer Park while visiting another client.25 Markman told her that she wanted to move to Virginia.26 Markman also said that she wanted Housman to have Miss White over to the trailer so that Housman could tell Miss White that "it is over" in front of Markman.27 Two weeks later, on October 2, Markman left Ms. Gutshall a voicemail stating that she wanted to 20 N.T. 655. 21 N.T. 656. 22 N.T. 656-7. 23 N.T. 657. 24 Id. 25 N.T. 659. 26 Id. 27 N.T. 660. 6 move to Howard Housman's house in Virginia.28 Finally, on October 3, she received another message from Markman about her desire to move to Virginia.29 While working at Seidle Hospital in Mechanicsburg, Pennsylvania, Markman and a co-worker named Ginny Wilt exchanged confidences and gossip. Markman told Wilt that she had discovered an exchange of flirtatious emails on her home computer between Housman and a girl from Wal-Mart, later found to be Miss White.3° Markman confided to Wilt that she was fighting with her boyfriend, Housman, over the continued exchange of these emails. Markman went as far as to say, "I'm going to Wal-Mart, follow Leslie home, and kick her ass," and called her a "fuckin' bitch.''31 She also mentioned to Wilt that Housman had talked about leaving her.32 Cheryl Caraballo, another co-worker at Seidle Hospital, also recalled similar conversations with Markman, when Markman used foul language and acted hyper and angry when discussing Housman's relationship with Miss White.33 28 29 Gutshall did not grant the permit, and had no way to contact Markman. call, she did not hear from Markman again. Icl. 3O 31 32 N.T. 660-61. Howard Housman is defendant Housman's father. N.T. 661. In that message, Markman asked for a travel permit to Virginia. Ms. After this N.T. 58. N.T. 59. N.T. 60. 33 N.T. 71-3. 7 Tammy Crawford of Roanoke, Virginia, also testified about the volatile relationship between Markman and Housman. Ms. Crawford specifically recalled words exchanged on the evening of September 21,2000, when Markman and Housman stayed with her for the night.34 Both related to her that they would be moving back to Virginia as a team.35 In front of Markman, Housman confessed to cheating on her and told Crawford that they were trying to get over it and patch things up.36 Markman herself then stated that if she got her hands on Leslie she would kill her.37 Tammy's husband, Charles, confirmed Ms. Crawford's testimony in all respects, and added that Markman had at least temporarily kicked Housman out of the trailer over the email exchanges with Miss White.38 Nevertheless, Miss White and Housman were still engaged in some type of relationship. Melissa Sheaffer, a co-worker and friend of Miss White's from the August 2 orientation, remembered how Housman continued to give Miss White cards and flowers at work.39 Ms. Sheaffer also testified to Markman's growing anger over Miss White and Housman's relationship. She recalled how Miss 34 N.T. 80. 35 N.T. 80-1. 36 N.T. 81. 37 N.T. 82. 38 N.T. 96. 39 N.T. 106. 8 White was scared and crying after receiving a telephone call from Markman? Markman also visited the Wal-Mart during this time period, roaming the store for hours looking for Miss White. Sensing trouble, Ms. Sheaffer made a point to separate Markman from Miss White? At approximately 6:00 p.m. on October 4, 2000, various Wal-Mart employees testified to Miss White receiving a paged telephone call from Housman, who was not at work that day.42 Miss White related to these witnesses that she had to leave the store on an emergency: Housman had called to tell her his father had died and he needed her to console him. Josh Kerstetter, a co-worker, accompanied Miss White to her Jeep Cherokee and watched her drive out of the parking lot.43 Except for her killers, Mr. Kerstetter was the last person to see Miss White that fateful day. Carl Gruver testified as to the location of Leslie's Jeep Cherokee on the day of the murder. Mr. Gruver is a skilled worker with the Tuckey Mechanical Company who rents trailer number 114 beside Markman. On October 4, 2000, he recalled observing a black sport utility vehicle parked outside Markman's trailer sometime between 6:30 and 6:45 p.m. as he exited his home on his way to 4o N.T. 108. 44 N.T. 108-9. 42 See Wingfield, E.A.; Wriglesworth, C.D.; Martin, M.; Kerstetter, J. 43 N.T. 150. 9 Shippensburg, Pennsylvania.44 Upon his return home at approximately 9:00 to 9:15 p.m., he recalled seeing the same vehicle still parked by Markman's trailer.45 Through photographic exhibits, Mr. Gruver described the vehicle as one closely resembling the Jeep Cherokee owned by Miss White.46 Also on October 4, 2000, at approximately 5:30 p.m., Mrs. Kautz, the trailer park manager, testified to seeing Markman and Housman together in Markman's blue Buick Skylark, driving to number 1 12.47 Though Mrs. Kautz did not see Markman and Housman again, police did question her at 3:30 a.m. on Monday, October 9, as to the whereabouts of the couple and Miss White.48 Mrs. Kautz knocked on the trailer later that morning and determined that neither Markman nor Housman was at the residence.49 Jodi Hoover, the Human Resources/Staffing Coordinator of Advantage Health Care, testified about Markman's absence from work at and around the time of Leslie's murder. Ms. Hoover had hired Markman for her nursing position on September 6, 2000.5o Markman was scheduled to work on October 6, 7, and 44 N.T. 216-7. 45 N.T. 218. 46 N.T. 217; see also Commonwealth Exhibit 17. 47 N.T. 167. 48 N.T. 169. 49 N.T. 169-70. 5o N.T. 205-6. 10 8, but she called Miss Hoover on October 5 from Virginia to tell her that her daughter and parents had been in an automobile accident, and that she would not be at work on any of those days.51 On Friday, October 6, Markman again called Hoover and asked that she hold her paycheck for pick-up on Monday, October 9.52 No one picked up that last check.53 Also on Friday, October 6, 2000, at 8:31 p.m., Theresa Knepp, a police communications officer at the Pennsylvania State Police barracks in Lewistown, Pennsylvania, called Howard Housman's residence in Rocky Mount, Virginia and spoke with Howard Housman.54 Mr. Housman informed Knepp of his interaction with defendants Markman and Housman since October 4, 2000.55 Markman and Housman had arrived in separate cars at his home at approximately 5:30 to 6:00 a.m. on the morning of Thursday, October 5.56 Housman was driving the black Jeep, and Markman was driving her blue Buick Skylark.57 Mr. Housman spoke 51 52 53 54 55 and Howard Housman 2031-2038 hrs 10/6/00. at trial. N.T. 231, Commonwealth Exhibit 39. 56 Commonwealth Exhibit 40. 57 Id. N.T. 208-9. N.T. 209. N.T. 211. N.T. 230. Commonwealth Exhibit 40, transcript of taped phone call between PCO Knepp The jury listened to the taped call 11 with the couple for several hours on Thursday evening.58 On Friday they left him a note telling him that they had gone to the home of one of Housman's friends, and that if they were not back by 1 1:30 p.m. that evening, they would return the next day.59 They had left together in the black Jeep.® Mr. Housman also indicated to Knepp that he knew his son had told Miss White that he had apparently died?1 On Saturday, October 7, Nina Fields, a former acquaintance of defendant Housman, ran into Housman and Markman at a flea market in her hometown of Boones Mill, Virginia.62 Housman told her he bought a Jeep.63 He also said to her that the Jeep needed repair and that he wanted to have a trailer hitch attached in the rear.64 She then invited the couple to her home, where they stayed from approximately 12:00 p.m. until 4:00 p.m.65 58 Id. 59 Id. 60 Id. 61 Id. 62 N.T. 319-22. 63 N.T. 319. 64 Id. 65 N.T. 319. 12 While they were at Mrs. Fields home, Housman and Mrs. Fields' husband, Robert Fields, talked about the Jeep.® In the Fields' repair garage, Housman informed Mr. Fields that he had bought the Jeep.67 He stated again that he wanted to put a trailer hitch on it. He also told Mr. Fields that he had paid $6,000 for the Jeep.68 Also during the visit, Markman conversed with Mrs. Fields in the house. She confided to Mrs. Fields that although she had found Housman with another woman, she continued to love him and still desired to be with him.69 At one point she said in regards to the other woman, "1 don't have to worry about that bitch anymore because I took care of her.''7° Theodore and Patricia Lang, other friends of the Fields', were also at the Fields' home on October 7. At trial, Mrs. Lang recollected seeing Markman and Housman hugging and kissing that afternoon.TM She also recalled Markman 66 N.T. 335. 67 N.T. 336. 68 N.T. 336-7. 69 N.T. 325. 70 N.T. 322. 74 N.T. 350. 13 confiding that Housman had had an affair with Leslie White.72 Markman further added, "it won't happen again because I took care of her.''73 At 5:20 p.m. that same day, Robert Garner, a police communications operator at the Pennsylvania State Police barracks in Carlisle, Pennsylvania, received a telephone call from Markman from Virginia.TM Markman was inquiring into a supposed missing persons report filed on her by a family member.75 She stated that the police had come to the home of her boyfriend's father with information that she had been kidnapped by her boyfriend and was being held against her will.76 Garner was able to confirm neither the missing persons report nor the identity of the person who would have made such a report.77 Also on October 7, 2000, at 6:42 p.m., Housman called George White, the father of Miss White, from Virginia.78 Housman accused the Whites of harassing him, his father, and Markman, even going as far as threatening to sue the 72 N.T. 350-1. 73 N.T. 351. 74 N.T. 255. Commonwealth Exhibit 56, transcript of taped conversation with Beth Markman on 10/07/00. The jury listened to the taped conversation at trial. N.T. 256, Commonwealth Exhibit 55. 75 Commonwealth Exhibit 56. 76 Id. 77 Id. 78 N.T. 261. 14 Whites.TM When Mr. White told Housman that the police had informed him Housman was driving a black Jeep in Virginia, Housman told him that the police were wrong and that the Jeep he was driving in fact was blue.so When asked to describe Housman's harassing tone during the conversation, Mr. White recalled Housman threatening to come to Pennsylvania to hunt down his daughter.8~ By the time Housman made this call to Mr. White, Virginia State Police had twice visited Markman and Housman at Housman's father's home at 2805 Ruritan Road, Rocky Mount, Virginia. On October 6, 2000, at approximately 5:30 p.m., Deputy Brian Vaughan of the Franklin County Sheriff's office in Virginia was instructed to go to the Ruritan Road address to question Markman and Housman about Miss White's whereabouts.82 Deputy Vaughan observed the blue Buick Skylark in the driveway, but only Housman's father was there at the time.83 When Mr. Housman informed Deputy Vaughan that Markman and Housman were not there, Deputy Vaughan requested the father call him upon his son's return.84 He then departed. Mr. Housman did not call when his son returned.85 79 N.T. 262. 8o Id. 8~ N.T. 263. 82 N.T. 268-9. 83 N.T. 271-2. 84 N.T. 273. 85 Id. 15 Deputy Vaughan returned to Mr. Housman's home the next evening, October 7, 2000, at approximately the same time, in response to a dispatch call reporting that Markman and Housman had returned,s6 He observed both the black Jeep and the blue Buick in the driveway, and ran the license plate number on the Jeep.s7 The tag traced back to the Toyota Leasing Corporation.ss Subsequent investigation would determine that this was indeed Miss White's vehicle. Markman and Housman both came to the door when Deputy Vaughan knocked. Markman did not appear scared, nor did she tell Deputy Vaughan she was scared,s9 Markman's first words to Deputy Vaughan were, "1 don't know why my parents would be looking for me, I am old enough to be on my own.''9° After determining that Markman was not Miss White, Deputy Vaughan proceeded to question the couple separately in his patrol car. Both Markman and Housman willingly sat in the front seat of the unlocked vehicle while questioned. Housman, who was questioned first, explained to Deputy Vaughan that he had called Miss White at Wal-Mart on October 4, 2000 to ask her to console him about his dog s6 N.T. 273. s7 N.T. 276. ss N.T. 277. s9 N.T. 278. 90 N.T. 279. 16 who had been killed by a groundhog. According to Housman, Miss White never arrived at the trailer, and subsequently he and Markman left for Virginia. He also told Deputy Vaughan that the black Jeep in the driveway had been loaned to him by its owner, Debbie Baker of Newville, Pennsylvania.9~ When Housman exited the patrol car and returned to the house, Deputy Vaughan then interviewed Markman alone.92 Markman entered and sat in the patrol car voluntarily.93 Markman explained that she had only seen Miss White once in person, but had had several phone conversations with her. She denied any knowledge of Miss White's whereabouts, but indicated that Miss White had a "bad relationship" with her parents, suggesting that Miss White may be a runaway. Markman stated that she did not know how Housman obtained the Jeep, but did admit to the couple driving the separate cars from Pennsylvania. When Deputy Vaughan specifically asked Markman if she was afraid of Housman, she responded that she was not and in fact it was she who had a violent temper with him? She had provoked him in the past and thrown things at 94 N.T. 279-82. 92 N.T. 285-90. 93 N.T. 285. 94 N.T. 289. 17 him. She disclosed that Housman had never assaulted her or threatened her in any way.95 At the conclusion of Markman's interview, Deputy Vaughan asked Housman for permission to search the Jeep. Deputy Vaughan testified that his search was a "look-through" rather than an arrest-type search.96 He observed, among other things, a potato chip bag and three model cars wrapped in plastic.97 After the brief search, Housman informed Deputy Vaughan that he would be returning to Pennsylvania that night. At this point, Deputy Vaughan left.98 Upon returning to the Sheriff's office in Franklin County, Deputy Vaughan called the Whites with the little information he had learned from Markman and Housman.99 He obtained the vehicle identification number (VIN) of Miss White's Jeep from Mr. White in order to confirm that the Jeep Housman had been driving was in fact Miss White's, and not Debbie Baker's. When he telephoned Mr. Housman's residence to request that Housman delay his departure for Pennsylvania so that he could check the VIN number of the Jeep there, 95 N.T. 289. N.T. 284. 97 N.T. 283. N.T. 290. 99 N.T. 291. 18 Housman told him that Markman had already left in the Jeep.1°° Deputy Vaughan immediately returned to the Ruritan Road location, but in the ten minutes it took him to travel to that address both the Jeep and the Buick had departed.® On October 8, 2000, Housman's father called Deputy Vaughan. They discussed a piece of farm acreage termed by Mr. Housman as the "old home place." According to Mr. Housman, the "old home place" consisted of an abandoned building located on a piece of land so remote that "you would have to know it was there to find it.''1°2 Mr. Housman also indicated the Markman and Housman may have stayed with a friend of Housman's named "Big Boy.''1°3 Following the trail picked up from the interview of Howard Housman on October 8, the Virginia State Police eventually went to the mountain home of Larry Overstreet and Kimberly Stultz. They lived at 411 Sally Ridge Road in Henry, Virginia. Ms. Stultz, Overstreet's live-in girlfriend and mother of his young child, related how Markman and Housman had arrived at her home around 1:00 p.m. on Friday, October 6. Larry Overstreet had been working at the time. lOO N.T. 292. 101 Id. lO2 N.T. 293. lO3 N.T. 295. 19 During his testimony, Mr. Overstreet used a map4°'~ to describe the area and the arrival of Housman and Markman at his house.4°s Mr. Overstreet had known Housman for five years, but he described their visit as unexpected. Housman and Markman arrived at the Overstreet residence in Miss White's black Jeep Cherokee. Housman told Mr. Overstreet and Ms. Stultz that he had purchased the Jeep for $5,000.00, and that he was paying $150.00 a week to the seller. The defendants stayed the night at the Overstreet residence, watching television. Both Mr. Overstreet and Ms. Stultz described their behavior as "normal.''4°6 At some point in the evening, Mr. Overstreet drove to the Food Lion store with Housman for some supplies in the Jeep. Housman also explained that he and Markman planned to move back to Virginia and reestablish themselves. Housman described the Jeep as his "toy" to both Mr. Overstreet4°7 and Ms. Stultz.4°8 lO4 Commonwealth Exhibit 58. 4o5 See N.T. 470-2. 406 N.T. 472. 407 N.T. 472. 408 N.T. 494. 20 While the men were gone Ms. Stultz talked to Markman alone, and Markman brought up that "Bill had been seeing a girl" from Wal-Mart. Markman declared, "If she got a hold of her she was going to whoop her ass.''1°9 Both Ms. Stultz and Mr. Overstreet recalled seeing scratches on Markman's neck. In fact, Mr. Overstreet identified a photo of Markman during his testimony showing some scratches.~° After inquiring about the scratches, Ms. Stultz was told by Markman that a dog had scratched her. At one point, Markman asked Ms. Stultz for some cleaning supplies because the Jeep smelled like a dead animal was in it. Ms. Stultz also noted how Housman and Markman engaged in horseplay at the house and how Markman had "playfully" kicked Housman when he fell down.TM The defendants also had a fancy camera with them, which Markman had retrieved from the Jeep,~2 They informed Mr. Overstreet and Ms. Stultz that they wanted to sell it. However, that night they used the camera and took pictures of each other, which Mr. Overstreet and Ms. Stultz both later identified.~3 Ms. Stultz 4o9 N.T. 494. ~o N.T. 475. ~ See N.T. 494-503. 112 Commonwealth Exhibit 15. 113 Commonwealth Exhibit 97. 21 described how Markman later sought out a phone number of a pawn shop where the camera could be sold.~'~ The next morning, Saturday, October 7, after Mr. Overstreet had returned from dropping Ms. Stultz off at her work, Markman and Housman were gone. They returned that night however around 11:30 p.m. in Markman's car, a blue Buick Skylark. According to Mr. Overstreet, they stayed until October 11, when the police came and arrested them. One evening during that time they all watched a news incident on television about Miss White's body. When Mr. Overstreet inquired about the incident, the defendants denied any knowledge concerning the murder.~5 On Sunday, October 8, Russell Gillespie, half-brother of Housman, made a trip to the abandoned property known as the "old home place.''~6 He suspected trouble when he saw a brand new Jeep Cherokee with Pennsylvania tags in this remote location, so he called the police. The only other cars at the "old home place" were six other "junked" cars that Mr. Gillespie had himself abandoned. Thus, according to Mr. Gillespie, the new and usable Jeep stuck out.117 114 N.T. 493. ~5 See N.T. 473-79. ~6 N.T. 366. ~7 See N.T. 366-67. 22 Responding to the call of Mr. Gillespie, Special Agent Oliver of the Virginia State Police, lead investigator on the case, was called to the scene of the "old home place" around 11:30 p.m.~8 In the early morning hours of Monday, October 9, Agent Oliver walked past an abandoned and derelict Dodge and smelled an odor.~9 He opened the trunk and found Miss White's body wrapped in a tent. He then called for the medical examiner to come to the scene. Through the use of photographs during his testimony, he identified the body on the ground~2° and demonstrated how the gag around Miss White's mouth had been pulled extremely tight, pulling her mouth back into a stretched position.~2~ Dr. Susan Venuti, Medical Examiner for the Western District of Virginia in Roanoke, performed the autopsy and wrote the Coroner's Report, which further described the condition of Miss White's body. She explained that one piece of red cloth had been put in Miss White's mouth, while another piece had been tied tightly around her mouth as a gag.~22 She also described the way Miss White's feet and wrists were bound with speaker wire. She reported that the ultimate ~8 N.T. 576. ~9 N.T. 578. 12o Commonwealth Exhibit 76. 121 See N.T. 576-84. 122 N.T. 532. 23 cause of death was suffocation.~23 She further reported that Miss White was obviously dead in Cumberland County, Pennsylvania, prior to leaving the scene of the crime.~2'~ Along with other Virginia State Policemen, Special Agent Stephen Lester was called to the crime scene at the "old home place." He is an evidence technician, experienced in processing crime scenes. During his testimony he used a large map of the abandoned farm on Sandy Flats Road~25 to show photographs of the crime scene and the various objects he found at the scene. At the "old home place," he first ordered that the Jeep Cherokee be moved for further fingerprint processing in an appropriate garage. He next gathered various items from the Jeep which were later processed for fingerprints, including an empty potato chip bag, a license plate and a CD from the CD player inside the car. He also processed the abandoned Dodge, in which Miss White's body was found in the trunk, for fingerprints. 126 Also in the trunk, he discovered speaker 123 N.T. 545. 124 See Commonwealth Exhibit 1; N.T. 525-45. 425 Commonwealth Exhibit 58. 126 See N.T. 382-91. 24 wire127 that matched the wire with which Miss White's feet and wrists had been bound. 128 Agent Lester also picked up a number of items that were scattered around the entire "old home place" area. In an outhouse located on the property, he discovered Miss White's jewelry box,129 and her class ring,~3° which was subsequently identified in court by Miss White's mother and sister.~3~ He also recovered Miss White's drawing pads, a note from Housman, her checkbook and one of her contact lenses.~32 Helping Agent Lester were Special Agent Ron Cruise of the Virginia State Police and Pennsylvania State Policeman Christopher V. Manetta. Agent Cruise found a blue box under the house,133 which contained the fingerprints of both Miss White and Housman. Trooper Manetta assisted by taking photographs of the scene, some of which of the less graphic were later introduced at trial, and measuring the various distances involved at the scene. During his testimony, he 127 Commonwealth Exhibit 74. 128 See N.T. 404. 129 Commonwealth Exhibit 23. 430 Commonwealth Exhibit 24. 131 See N.T. 50; N.T. 565. 132 See N.T. 397-402. 133 Commonwealth Exhibit 22; N.T. 430. 25 used a chart to describe these distances.43'~ He also identified the underwear from the autopsy435 and Miss White's watch.436 Agent Michael Grimm, a forensic scientist with the Virginia Department, specializes in the examination and identification of latent fingerprints.437 His examination of the Dodge trunk lid438 showed the left index fingerprint of Housman. Agent Grimm's examination of the license plate439 showed the right little fingerprint of Housman. Housman's right index fingerprint was found on the CD4'~° and the latent print of Housman's right little finger was recovered from the rear hatch of the Jeep Cherokee. Agent Grimm further identified Housman's prints on various other pieces of evidence seized at the scene. He identified Markman's prints on the Moore's potato chip bag,4'~4 the passenger side door 134 Commonwealth Exhibit 86. 435 Commonwealth Exhibit 91. 136 Commonwealth Exhibit 30; See, N.T. 453. 137 See N.T. 416-26. 138 Commonwealth Exhibit 73. 139 Commonwealth Exhibit 18. 440 Commonwealth Exhibit 20. 444 Commonwealth Exhibit 66. 26 handle of the Jeep142 and the passenger door.143 He also identified three of Markman's prints on the rear hatch of the Jeep.TM In the meantime, by October 9, 2000, the Pennsylvania State Police had obtained a search warrant for the Markman trailer, executing it that day. The premises were vacant at the time. Jennifer Menther, forensic serologist from the Pennsylvania Crime Lab, tested various items of evidence seized from the trailer at the Big Spring Terrace Trailer Park. She found blood on a pillow,145 but could not type it any further than to say it was blood. She examined fingernail clippings of Miss White and found blood under them.~46 She sent this evidence for DNA testing. She also tested a carpet sample for urine in the likely place where Miss White was strangled. The test was positive for urine.~47 At trial, Pennyslvania State Trooper Sally Worst, who aided in the execution of the search warrant for Markman's trailer, testified with regard to the various items that were found inside the trailer. 148 Two lengths of speaker 142 Commonwealth Exhibit 67, item 53. 143 Commonwealth Exhibit 67, item 55; Commonwealth Exhibit 67, item 56. 144 Commonwealth Exhibit 67, item 58. 145 Commonwealth Exhibit 37. 146 Commonwealth Exhibit 13. 147 See N.T. 376-79. 148 N.T. 234. 27 wire,149 red fibers from the floor,® a piece of red cloth found on the floor,® a steak knife,452 red fibers from the knife,453 a tent storage bag,454 a hammer,455 and a stethoscope456 were all found during the warranted search of Markman's trailer. Pennsylvania State Policeman Jeffrey Stine assisted with the recovery of evidence from the crime scene at the Big Spring Terrace trailer. He seized eleven computer disks,457 which were subsequently submitted for analysis. The disks were found in the living room and turned out to be empty.458 He also investigated the hard drive of the computer at the trailer, and found several emails written between Housman, Markman, and Miss White. 459 149 Commonwealth Exhibit 41 N.T. 236. 45o Commonwealth Exhibit 45, N.T. 238. 454 Commonwealth Exhibit 46, N.T. 239. 452 Commonwealth Exhibit 48, N.T. 240. 453 Commonwealth Exhibit 49, N.T. 240. 454 Commonwealth Exhibit 50, N.T. 241. 455 Commonwealth Exhibit 51 N.T. 242. 456 Commonwealth Exhibit 52, N.T. 243. 457 Commonwealth Exhibit 92. 458 See N.T. 444-46. 459 Commonwealth Exhibit 93; N.T. 449. 28 Pennsylvania State Policeman Roger Hall established some times and distances involving the Big Spring Terrace crime scene and the Cumberland County Wal-Mart. He explained that the distance from Miss White's Wal-Mart store to the Markman trailer was 25.2 miles and took 29 minutes to travel by car.46° Also during his testimony, it was stipulated that Markman's DNA was found under White's fingernails.464 Officer Hall also identified a letter from Markman to Rodger Atwood.462 Late on October 1 1, Deputy Vaughan and his supervisor, Lieutenant Hunt arrived at the Overstreet residence to arrest the defendants for the theft of the Jeep Cherokee.4~3 Housman was the first to come out of the trailer, followed by Markman. Housman yelled to Deputy Vaughan, "Hey, I forgot to tell you that I was helping Miss White get away from her parents and that she didn't want you to find her.''4~4 Deputy Vaughan stated that Markman was "sobbing uncontrollably''4~5 when she came out of the residence. 46o N.T. 560. 464 Commonwealth Exhibit 85. 162 Commonwealth Exhibit 100. 163 See N.T. 312-13. 164 N.T. 313. 465 Id. 29 After the arrest of the defendants, Special Agent Minter of the Virginia State Police searched the Overstreet trailer on the morning of October 13.466 He searched the bedroom where Markman and Housman had been staying. He found a purse belonging to Markman. Inside the purse was a receipt signed by Markman for the pawning of the camera at the Franklin Rod and Gun Shop in Rocky Mount, Virginia. The pawnshop was located in the same town as the Overstreet residence. In addition to the receipt, he found a pawn ticket given to Markman for the camera.467 Curtis Young, owner and operator of the Franklin Rod and Gun Shop, related how Markman had appeared at his store on Saturday, October 7, before his closing time of 1:00 p.m.468 He identified the pawned camera469 and the original and copy of the pawn ticket issued to Markman.47° He identified the Pennsylvania driver's license given to him by Markman for identification. He also related how he had given Markman $80.00 for the camera. When the police later came for the camera, he explained that he turned it over to them without touching it. The camera was subsequently given to Officer Collins of the Roanoke Police 166 See N.T. 509-11. 167 Commonwealth Exhibit 94; Commonwealth Exhibit 95. 468 See N.T. 515-18. 469 Commonwealth Exhibit 15. 470 Commonwealth Exhibit 95. 30 Department, an experienced evidence technician. He developed the film in the camera and identified the negatives~7~ and the eight images that they showed at trial.172 After they were arrested for the theft of the black Jeep Cherokee, Agents Oliver, Cruise and Lester of the Virginia State Police interviewed the defendants in the early morning hours of October 12. Agent Oliver examined the scratches on Markman's neck the night he talked to her. Markman and Housman both gave tape-recorded statements to these policemen. ~ 73 Pursuant to these statements, as well as other gathered information, another search warrant was executed to search Markman's trailer on October 13. Pennsylvania State Police officers collected carpet samples,~7'~ a stethoscope,~75 and various other evidence. II. OMNIBUS HEARING ON DEFENDANTS' PRE-TRIAL MOTIONS Defendants William Housman and Beth Ann Markman both filed omnibus pre-trial motions to suppress certain evidence. A hearing was conducted beginning on May 21,2001 and continuing on June 6, 2001. ~7~ Commonwealth Exhibit 96. 172 Commonwealth Exhibit 97. 173 Commonwealth Exhibit 83-B; Commonwealth Exhibit 83-C. ~7,~ Commonwealth Exhibits 44, 45. 475 Commonwealth Exhibit 52. 31 All Defendants' motions within the Omnibus Pre-trial Motion were denied. A. FACTS The following testimony was heard at the above-mentioned hearing. Pennsylvania State Police trooper Roger Hall measured the driving time from Wal-Mart to Beth Ann Markman's trailer at 112 Big Spring Terrace.176 The distance was 25.2 miles and travel time was approximately 29 minutes.177 Trooper Hall made no stops, took the most likely route, and followed the speed limit the entire time.178 Nicole Gutshall, Markman's Cumberland County Probation Officer since September 1999, met with Markman two times in September 2000.179 Under the terms of Markman's probation, she and Gutshall were to meet one time per month. On September 13, 2000, Gutshall met with Markman at a scheduled meeting in her office. Markman indicated that she was having problems at home, and that she was planning to move and get a new job. When Gutshall asked for more specific information regarding her plans, Markman voluntarily discussed her relationship with Defendant William Housman. She told Gutshall that she had 176 Notes of Testimony Omnibus Hearing 13, May 21,2001, June 6, 2001 (hereinafter NTOH ). 177 NTOH 14. Trooper Hall testified that he took the following route: "1 left the Wal-Mart parking lot, got on Route 114 to 81 South. Got off at exit 11, Newville, took 233 north to Oak Flat Road into Big Spring Terrace to lot 112." Id. 178 NTOH 14-15. 179 NTOH 16-31. 32 discovered that Housman had been cheating on her with a girl, and that "if she found out he was cheating again, she would kill her.''~8° Gutshall warned Markman that if she harmed the girl she would end up in jail. She did not give Markman Miranda warnings as this was a non-custodial interview, and allowed her to leave the office on her own accord. On September 14, 2000, Gutshall and Markman had a chance meeting at the home of one Markman's neighbors in the Big Spring Terrace trailer park. Markman related to Gutshall that she wanted to move to Virginia. Gutshall informed Markman that in order to get approval she would need to provide Gutshall with a Virginia address. And, even with that information, approval could still take up to three months. At that point Markman voluntarily told Gutshall that she wanted to confront "this girl" at Markman's trailer so that Housman could tell her the relationship was over. Gutshall did not solicit these statements from Markman. No Miranda warnings were given, and Markman left the neighbor's trailer voluntarily before Gutshall. On October 2 and 3, 2000, Markman left two voicemails for Gutshall indicating that she was moving to Virginia. At that time she did not have authorization for the move. Sergeant Jesse Zorger, a Pennsylvania State Police officer in Carlisle in charge of the patrol section, identified a tape made of an incoming call from 48o NTOH 1 1-12. 33 Markman.181 The call was recorded under the normal course of Pennsylvania State Police business.182 Sergeant Zorger described that an alert tone in the recording system sounds every 10 to 12 seconds to alert callers that their conversations are being recorded,ls3 The police communications officers are not required to inform the caller that the conversation is being recorded because of this alert tone.1~4 At approximately 5 p.m. on October 6, 2000, Deputy Sheriff Brian Vaughan of the Franklin County Virginia Sheriff's Office was dispatched to the home of Howard Housman at 2805 Ruritan Road, Rocky Mount, Virginia, to check on the well-being of Leslie White.ls5 When he knocked on the door of the residence, Deputy Vaughan mistakenly informed Howard Housman, the father of William Housman, that Mr. Housman's son's female companion had been reported missing in Pennsylvania, because he believed at this time that Housman was 181 Commonwealth Exhibits 4,5; NTOH 31-41. 182 NTOH 33. Sergeant Zorger was asked at the hearing: Q' Anyone just calling into the main numbers for the Pennsylvania State Police barracks is going to have their conversation recorded? A: Correct. Id. ls3 NTOH 35. A caller may request that his call not be recorded. NTOH 40. 184 NTOH 41. 185 NTOH 42. Leslie White's father, George White, had reported his daughter missing. NTOH 43. 34 with Leslie.186 Mr. Housman then told Deputy Vaughan that neither Housman nor his female companion was present at the time, but he would call him upon their return. 187 At approximately 5 p.m. the next evening, October 7, 2000, Dispatch at the Sheriff's office received a call from Markman, hoping to speak with someone regarding a possible missing person's report on Markman.18~ In response to that call, Deputy Vaughan returned to Howard Housman's residence at 2805 Ruritan Road.ls9 He was in his marked patrol car and in full uniform. When he entered the property he observed the black Jeep Cherokee parked in the driveway.19° Because he had information that Miss White drove a black Jeep Cherokee, Deputy Vaughan checked the license plate.® It came back to a Toyota Leasing Corporation, with no direct link to Leslie White.192 As Deputy Vaughan approached the door, both Housman and Markman emerged from the residence. Without introducing herself, Markman volunteered to Deputy Vaughan that she did not understand why her parents were looking for 186 NTOH 43. 187 Id. 188 NTOH 43-4. 189 NTOH 44-52. 19o NTOH 51-52. 191 NTOH 51. 192 Id. 35 her and that she was old enough to be on her own.193 Housman and Markman then correctly identified themselves to Deputy Vaughan.194 At that point Deputy Vaughan asked to speak to Housman alone and asked Markman to return to the residence.195 Housman voluntarily agreed to be interviewed in the front seat of Deputy Vaughan's patrol car.196 The front passenger seat of the patrol car did not contain a cage of any kind, and could have been opened by any passenger.197 Housman voluntarily spoke with Deputy Vaughan for approximately fifteen to twenty minutes and was not in custody.198 Deputy Vaughan asked Housman if he knew Leslie White and if he knew her current whereabouts.® At this point in time, Deputy Vaughan did not know that Miss White was dead; he believed he was conducting a possible missing person's case and that Miss White perhaps was a runaway.2°° Housman indicated that Miss White was a friend and co-worker from Wal-Mart, and that he had asked 193 NTOH 45. 194 NTOH 46. 195 NTOH 46-47. 196 NTOH 47-50. 197 NTOH 48. 198 Id. 199 Id. 2oo Id. 36 Miss White to come to his home on October 4, 2000 to console him over the death of his dog.2°1 At the conclusion of this interview, Housman exited the patrol car and returned to the residence. Deputy Vaughan then asked to speak with Markman alone in his patrol car.2°2 Markman's interview was conducted in the exact manner as Housman's interview: she sat voluntarily in the front passenger seat of the patrol car, and freely answered Deputy Vaughan's questions for approximately ten to fifteen minutes.2°3 Deputy Vaughan asked Markman if she knew Miss White.2°4 She told Deputy Vaughan that she had only seen Miss White once and that they had spoken on the telephone a few times.2°5 After concluding this consensual interview with Markman, Deputy Vaughan asked Housman for permission to search the Jeep.2°6 After Housman agreed, Deputy Vaughan conducted a five to ten minute examination from outside the 201 Id. 202 NTOH 50-51. 203 NTOH 50. 204 NTOH 50-51. 2o5 NTOH 51. 206 NTOH 52. 37 vehicle. He removed nothing from the Jeep. He did observe, however, among other things, a potato chip bag and three model cars wrapped in plastic.2°7 Deputy Vaughan left the 2805 Ruritan Road property after this cursory search. Upon returning to the Sheriff's office in Franklin County, he called the Whites with the little information he had learned from Markman and Housman.2°8 He obtained the vehicle identification number (VIN) of Miss White's Jeep from Mr. White in order to confirm that it was in fact her Jeep on Howard Housman's property. Deputy Vaughan then telephoned Mr. Housman's residence to request that Housman delay his departure for Pennsylvania so that he could check the VIN number of the Jeep.2°9 However, Housman told him that Markman had already left in the Jeep.2~° Deputy Vaughan immediately returned to the Ruritan Road location, but in the ten minutes it took him to travel to that address, both the Jeep and the blue Buick Skylark were gone.2~ 207 N.T. 283. 208 N.T. 291. 209 NTOH 76-77. 21o N.T. 292. 211 Id. 38 On October 11,2000, at 10:50 p.m., the defendants were arrested on a grand larceny charge for the theft of the Jeep Cherokee.2~2 Deputy Vaughan was the charging officer for the arrest.2~3 Special Agent Steve Oliver of the Virginia State Police was the lead investigator in the Commonwealth of Virginia's case. Agent Oliver participated in the investigation and the gathering of evidence at the "old home place." It was there that he discovered Miss White's body around 1:30 a.m. on October 9, 2000. At approximately 11:00 p.m. on October 11,2000, while traveling in his car, Agent Oliver heard the radio reports of Housman and Markman's arrests.TM He immediately went to the Franklin County Sheriff's office. After arriving at approximately 12:45 a.m., he participated in the questioning of both defendants.2~5 He and Special Agent Steve Lester of the Virginia State Police interviewed Markman first. Before the questioning began Agent Oliver gave Markman Miranda warnings via the authorized Virginia standard SP form 168, a standard advice of rights form.2~6 Agent Oliver explained the waiver of rights form to her at 1:06 a.m., and she signed it at 1:08 a.m.217 After signing this 212 NTOH 53. 213 Id. 214 NTOH 80. 215 NTOH 92. 216 NTOH 82. 217 Id. 39 waiver, Markman made a statement to the police regarding her involvement in the murder of Leslie White. Pursuant to the Virginia Wiretap Act, which states in part, "[i]t shall not be a criminal offense under this chapter for a person to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception,''218 the statement by Markman was recorded with a recorder authorized by the Commonwealth of Virginia,219 and with the consent of both Agents Oliver and Lester, parties to the communication. Even though the recording device was located in a wall cabinet, with the microphone out of Markman's view, Agent Oliver testified that the recorder would make a distinct sound when the auto reverse would activate and the tape would change sides.22° In addition, Agent Oliver placed a personal micro recorder on the desk in front of him during Markman's entire interview, and turned it on when he believed the wall cabinet recorder tape was running out.221 The Markman interview lasted approximately two and one half hours.222 218 Va. Code Ann. § 19.2-62(2)(b). 219 NTOH 84. 220 NTOH 85. 221 NTOH 85. 222 NTOH 96. 40 Agents Oliver and Cruise also gave a full Miranda warning to Housman and Housman freely signed the waiver of his Miranda rights. Housman was given the advice of rights through the Virginia State Police standard form SP- 168.223 Agent Oliver began reading Housman these rights at 4:18 a.m., and Housman signed the waiver at 4:22 a.m.TM He then proceeded to give a voluntary statement.225 The same authorized recording system was used.226 Since Housman's statement was shorter, Agent Oliver did not have to use his personal micro-recorder, although it remained on the table throughout the interview.227 Based on the statements from Housman and Markman, Agent Oliver executed a valid search warrant for 41 1 Sally Ridge Road in Henry, Virginia, the site of Housman and Markman's arrest. Larry Overstreet and Kimberly Stultz reside at this address. In addition to having the valid search warrant, Overstreet and Stultz consented to the search of their entire trailer where Housman and Markman had been houseguests. Housman and Markman had at no point paid rent. Agent Oliver and Special Agent Stephen Lester of the Virginia State Police 223 NTOH 86. 224 Id. 225 Id. 226 Id. 227 NTOH 87. 41 spoke with Overstreet and Stultz while fellow officers searched the trailer for personal effects of Housman, Markman and Miss White. Overstreet mentioned an expensive or nice camera, and Stultz then referred to it as "that girl's camera, the victim's camera.''228 Special Agent James Minter of the Virginia State Police was the officer who executed the search warrant for 41 1 Sally Ridge Road at 8:09 a.m. on October 12, 2000. The warrant stated that officers were to collect blood, body fluids, hairs, fibers, clothing, and personal effects of Leslie White.229 Stultz was given permission to enter the bedroom where Housman and Markman had slept in order to indicate which items belonged to her and Overstreet, and which belonged to the defendants.23° A purse was one of the items that Stultz noted did not belong to her or Overstreet.231 Agent Minter looked in the purse to determine if any of the personal effects in it were Leslie White's.232 At that point he discovered the pawn ticket from the Franklin Rod and Gun Shop in Rocky Mount, Virginia, with Beth Ann Markman's name on it, dated October 7, 2000.233 228 NTOH 90. 229 Commonwealth Exhibit 8. 230 NTOH 148. 231 NTOH 149. 232 NTOH 151. 233 Id. 42 The pawn ticket and receipt were for the Canon Rebel 2000 camera that belonged to Leslie White. Markman's driver's license was also in the purse.TM B. Application of Vir.qinia Law to the Present Case Due to the investigation that involved authorities from both Pennsylvania and Virginia, the Court is subsequently presented with a conflict between the substantive laws of the two states. Pursuant to Commonwealth v. Sanchez, Virginia law should be applied in this case.235 The Pennsylvania Supreme Court in Sanchez held that where the substantive law of another state conflicts with Pennsylvania law, courts should give "the state having the most interest in the question paramount control over the legal issues arising from a particular factual context, thereby allowing the forum to apply the policy of jurisdiction most intimately concerned with the outcome.''236 The conflict in Sanchez arose out of whether a canine sniff search of a package being sent from California to Pennsylvania required probable cause. Pennsylvania law requires probable cause, but California law does not. Because the search took place on California soil, Pennsylvania did not have a greater state interest in the search, even if the evidence of the search could have later been used in Pennsylvania courts. 234 NTOH 152. 235 Commonwealth v. Sanchez, 552 Pa. 570,573, 716 A.2d 1221 (1998). 236 Id. at 576. 43 In the present case, all evidence presented against the defendant at the omnibus hearing was generated in Virginia, by Virginia policemen. It is the Commonwealth of Virginia that has the greater interest in protecting its citizens from police misconduct and improper searches because all activities took place on Virginia soil. Therefore, it is in the best interest of Virginia and its citizens to apply Virginia law. C. Discussion The defendant has raised the following issues in a post-sentence motion to the Court. All motions are refused. 1. Defendant's Motion to Sever Trials During Guilt Phase Defendant's motion to sever his trial from the trial of Defendant Markman is refused. Defendant asserts that he has been prejudiced by a joint trial with co- defendant Markman. "The decision of whether to sever trials of co-defendants is within the sound discretion of the trial COUrt.''237 Requiring prosecutors to bring separate proceedings and present the same evidence twice would impair the efficiency and fairness of the criminal justice system and possibly lead to inconsistent verdicts.238 On the other hand, a joint trial protects victims and 237 Commonwealth v. Travers, 564 Pa. 362,365, 768 A.2d 845, 846 (2001) (citing Commonwealth v. Lopez, 559 Pa. 131 (1999)). 238 Id. at 365, 768 A.2d at 847 (citing Richardson v. Marsh, 481 U.S. 200, 210 (1987)). 44 witnesses from the inconvenience and sometimes trauma of being required to testify more than once.239 In the present case, many of the witnesses for the Commonwealth had to travel over 300 miles from Virginia and be housed in Carlisle, at the expense of the Commonwealth. Conducting two trials with almost identical witnesses and testimony would have been both inconvenient and inefficient. In addition, severing the trials would have surely doubled the cost to the Commonwealth. In his motion to sever the trials, the defendant contends that the admittance of Markman's statement from October 12, 2000, prejudiced him. In her statement, Markman made reference to Housman's movements before, during and after the murder of Leslie White. The statement was subsequently redacted for trial, with all references of the defendant removed and replaced with the term, "the other person." In addition, the Court read a cautionary instruction to the jury instructing them that although insertions had been made no inference should be drawn regarding them.24° In Commonwealth v. Travers,241 the Pennsylvania Supreme Court held that a co-defendant's confession, redacted to include the neutral term, "the other man," in reference to his co-defendant, 239 Id. 240 N.T. 437. The instruction, read before jury listened to Housman's redacted statement, also applied to Markman's redacted statement, since both statements were redacted in the exact manner. 241 Travers, 564 Pa. 362,768 A.2d 845 (2001). 45 accompanied by a cautionary instruction, was sufficient to remove any potential prejudice.242 In the present case, this same combination of a neutral pronoun and proper cautionary instruction was present. Defendant first cites Bruton v. United States243 in support of his argument that he was prejudiced by the admittance of Markman's statement. In Bruton, the trial court admitted a non-testifying co-defendant's facially incriminating statement regarding Bruton's involvement in an armed robbery.244 The United States Supreme Court held that the admission violated Bruton's right to confront the witness.245 While the jury did receive an instruction only to use the statement against Bruton's co-defendant, the Court reasoned that the risk that the jury would not follow such instructions was too great, and that the consequences of such failure as well as the incriminating statements themselves would prove devastating to Bruton.246 In the present case, however, Markman's statement was in fact redacted. Therefore, the reasoning from Bruton should not be applied. 242 Id. at 373, 768 A.2d at 851. 243 Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620 (1968). 244 Id. at 124, 88 S.Ct. at 1621. 245 Id. at 126, 88 S.Ct. at 1622. 246 Id. at 135-36. 46 Defendant also cites Gray v. Maryland247 to support his argument that the admittance of Markman's statement prejudiced him. In Gray, the United States Supreme Court held that the co-defendant's redacted confession, which substituted blanks and the words "deleted" or "deletion" for the defendant's name, was inadmissible as the type of statement that the Bruton holding protects.248 In that case, both defendants were accused of participating in the same crime, but only the non-testifying defendant's redacted confession was admitted at trial. Immediately after the redacted tape was played for the jury, the prosecutor questioned the arresting officer about the defendant's involvement in the crime.249 The trial court did instruct the jury that the redacted statement was only to be used against the co-defendant, but the Supreme Court held that even with this combination of redacted statement and cautionary instruction, Gray's right to confront the witness was still violated. However, Gray is distinguishable from the case at hand. In Gray, the text was obviously altered by way of the blanks and the terms "delete" or "deletion." Also, the prosecutor asked questions about the defendant directly after the tape was played. The Court's reasoning when concluding he was prejudiced was largely based on these issues. In the case at bar, a neutral pronoun was used 247 Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151 (1998). 248 Id. at 197, 1 18 S.Ct. at 1 157. 249 "After he gave you that information, you subsequently were able to arrest [the defendant], is that correct?" The officer replied, "That's correct." Id. at 188-89. 47 rather than a blank or the word "delete". In addition, the Commonwealth did not ask questions about the defendant's involvement in the murder immediately after the redacted statement was read for the jury. Neither the rationale from Bruton nor Gray can be applied in the present case. In Bruton, the appellant was referred to by name. In Gray, the alterations to the statement were in the form of blanks and the words "delete" or "deletion," and served as the functional equivalent of naming the defendant. Instead, the Travers reasoning clearly applies. In Travers, as in the present case, the neutral term used did not have the same powerfully incriminating impact as an obvious deletion.25° By accepting this method of redaction, accompanied by the reading of the cautionary instruction, the defendant in this case was therefore not prejudiced by the redacted statement of Markman. In further support of his argument that the trials be severed, defendant Housman also contends that his defense and Markman's defense of duress were antagonistic to the point where defendant Markman's evidence of abuse, as well as the joint trial, resulted in prejudice towards the defendant. To the contrary, the Pennsylvania Supreme Court has reasoned that "the fact that defendants have conflicting versions of what took place, or the extents 250 Travers, 564 Pa. at 373, 768 A.2d at 851 (citing Commonwealth v. McGIone, 716 A.2d 1280, 1286 (Pa. Super. 1998) finding that the term "other man" not only eliminates the name of the defendant, but also eliminates the suggestion of alteration). 48 to which they participated in it, is a reason for, rather than against, a joint trial because the truth may be more easily determined if all are tried tegether.''251 In Commonwealth v. Chester,252 each defendant claimed the other had slashed the victim's threat.253 The Court held that the inconsistent claims did not rise to the level of antagonism requiring separate trials because both defendants conceded to their participation in the killing and disputed only their respective acts in furtherance thereef.254 The Court determined that antagonism exists only when the jury must disbelieve the testimony on behalf of one defendant in order to believe the testimony on behalf of the ether.255 Further, in Commonwealth v. Kinq,256 the defendants sought separate trials on the grounds that their defenses were mutually antagonistic. "[E]ach contended that the other manipulated him or her into participating in the crimes.''257 Instead of allowing severance to turn on the conflicting versions of the extent to which each defendant participated in the crimes, the Court looked to 251 Commonwealth v. Kin(I, 554 Pa. 331,347-48,721 A.2d 763, 771 (1998) (quoting Commonwealth v. Chester, 526 Pa. 578,590 (1991), cert, denied, 502 U.S. 959 (1991)). 252 Commonwealth v. Chester, 526 Pa. 578,587 A.2d 1367 (1991). 253 Id. at 590, 587 A.2d at 1373. 254 Id. at 590-91,587 A.2d at 1373. 255 Id. at 590 (citing United States v. Berkowitz, 662 F.2d 1127 (5th Cir. 1981)). 256 Commonwealth v. Kin(I, 554 Pa. 331,721 A.2d 763 (1998). 257 Id. at 347, 721 A.2d at 771. 49 several factors in the case to determine whether severance was proper. "The following factors militated in favor of a joint trial: Appellants were charged with conspiracy; the majority of the crimes charged were the same; the circumstances giving rise to the crimes were identical with respect to both defendants; and the witnesses necessary to prove the crimes were the same.''258 Because the conflicting versions did not fall within one of these factors, the Court determined that the trial court did not abuse its discretion in refusing to sever.259 In the present case, there is no dispute over who strangled Leslie White or the manner in which it was done.26° The defendants' defenses are not antagonistic because each version only differs as to the extent that he or she participated in the murder. Defenses that merely claim one co-defendant manipulated the other co-defendant into participating in a crime are not antagonistic. Therefore, the refusal of the defendant's motion to sever his trial from the trial of Markman was proper. 2. Defendant's Motion on the Refusal to Sever Trials at Penalty Phase because of Evidence of Abuse The defendant argues that the trial court erred by not severing the penalty phase of his trial from that of Markman. This argument is without merit. "The 258 Id. 259 Id. at 348. 260 Housman's statement 29, 31; Markman's statement 38-39, 62. 50 decision of whether to sever trials of co-defendants is within the sound discretion of the trial court.''261 The Pennsylvania Supreme Court and the United States Supreme Court have both considered the crucial role that joint trials of co- defendants play in the criminal justice system.262 In making its decision, the trial court should weigh the inconvenience and expense to the government of a joint trial against the potential prejudice to the defendants.263 "Only where there had been a manifest abuse of that discretion" will a trial court's decision whether to sever the trials of the defendant be reversed.264 Specifically in this motion, the defendant argues that the penalty phase of his trial should have been severed from that of Markman because he was unduly prejudiced by the evidence brought by Markman's psychologist, who testified that 261 Commonwealth v. Travers, 564 Pa. 362,365, 768 A.2d 845, 846 (Pa. 2001) (citing Commonwealth v. Lopez, 559 Pa. 131,739 A.2d 485 (1999)). Moreover, the Travers court noted that "it would impair both the efficiency and the fairness of the criminal justice system to require...that prosecutors bring separate proceedings, presenting the same evidence again and again, requiring victims and witnesses to repeat the inconvenience (and sometimes trauma) of testifying, and randomly favoring the last tried defendant who have the advantage of knowing the prosecution's case beforehand." Id. at 365, 768 A.2d at 847. 262 See Richardson v. Marsh, 481 U.S. 200, 209, 107 S. Ct. 1702, 1708 (1987). In Richardson, the court stated that the interests of justice are generally served by joint trials whereby inconsistent verdicts are avoided and more accurate assessments of relative culpability are fostered. Id. at 210, 107 S. Ct. at 1708-09. 263 See Commonwealth v. Lambert, 529 Pa. 320, 331,603 A.2d 568,573 (1992). 264 Id. (citing Commonwealth v. Lasch, 464 Pa. 573, 347 A.2d 690 (1975). 51 Markman had suffered abuse at the hands of the defendant. This argument is without merit. First, the defendant asserts that the evidence of abuse presented at the guilt phase created a prejudicial "carry over" effect towards him in the penalty phase.265 This argument fails.266 Additionally, the defendant's assertion that he was prejudiced during the penalty phase by the evidence presented by Markman's psychologist is without merit. The testimony of Markman's psychologist, which included the alleged abuse committed by the defendant upon Markman, was presented as mitigating evidence. Because the Commonwealth was seeking the death penalty for both defendants, the defendant and Markman each had the opportunity to present mitigating evidence. In accordance to 18 Pa C.S.A. § 1102(a)(1), Markman and Housman, both of whom were convicted of first degree murder, can be sentenced to death pursuant to 42 Pa. C.S.A. § 9711. Under 42 Pa. C.S.A. § 971 l(a), relative evidence regarding aggravating and mitigating circumstances may be presented. At the sentencing hearing, co- defendant Markman was permitted to present evidence of mitigating 265 Defendant's Brief at 31. The evidence of physical, verbal and other abuse introduced by co-defendant was rejected when her duress defense was refused. See Commonwealth v. Beth Ann Markman, Opinion Pursuant to Pa.R.A.P. 1925, Criminal 01-0245, at Guilt Phase Trial Motions, Part I. 266 The Court denied the defendant's motion to sever based on the allegations of abuse presented in the guilt phase of the trial in this opinion, Part II.C.1. 52 circumstances under 42 Pa.C.S.A. [}9711(e)(5), which states, "[t]he defendant acted under extreme duress, although not such duress as to constitute a defense to prosecution under 18 Pa. C.S.A. [}309 (relating to duress), or acted under the substantial domination of another person.''267 The defendant was also permitted to present any evidence relating to mitigating circumstances, pursuant to 42 Pa.C.S.A. [}971 l(e). Since both defendants were permitted to present evidence of mitigating circumstances, and it was not necessary to sever the trials at the guilt phase or the penalty phase, the defendant was not prejudiced by co- defendant's witness testimony at the penalty phase.268 The defendant also claims that the evidence presented by co-defendant's psychologist amounted to "inflammatory evidence of uncharged misconduct by Mr. Housman, evidence well beyond the statutory aggravating circumstance that the jury was to weigh in imposing death.''269 However, at trial the Court only instructed the jury on the aggravating circumstance of kidnapping for both defendants. There is a presumption in law that a jury follows the instructions provided by the trial judge.27° Moreover, the Pennsylvania Supreme Court has 267 42 PA.C.S.A. §9711(e)(5). At the beginning of the sentencing hearing, the Court informed the jury of the mitigating circumstances listed in 42 Pa.C.S.A. §9711(e). N.T. 1264-65. 268 At the penalty phase, not only did the defendant's half sister, a spiritual advisor from the Cumberland County Prison and a psychologist, testify on his behalf, but the defendant himself testified. 269 Defendant's Brief at 37. 270 See Commonwealth v. Steele, 522 Pa. 61, 78-79, 559 A.2d 904, 913 (1989). 53 asserted, "We will not presume that jurors disregarded their duty and the instructions of the Court." 271 Since the instruction given to the jury stated that committing a killing while in the perpetration of a felony (kidnapping)272 was the only aggravating circumstance to be considered, the Court makes the presumption that the jury did not disregard its duty or the instructions of the Court, and therefore considered kidnapping the sole aggravating circumstance in sentencing.273 The defendant makes the assertion that his constitutional right to confrontation was prejudiced by waiving his right to cross-examine Markman's witnesses. The defendant claims he was prejudiced because he had to agree not to cross-examine Markman's psychologist, Dr. Hughes, and Markman's other witnesses during the penalty phase of the trial. Because he had to agree to this in order to avoid being cross-examined himself at the penalty phase, the defendant argues that this was not really a choice. However, these assertions made by the defendant are without merit. 271 Commonwealth v. Stoltzfus, 462 Pa. 43, 55, 337 A.2d 873, 879 (Pa. 1975). 272 42 PA.C.S.A. § 9711(d)(6). 273 In finding that the aggravating circumstance of committing a killing while in perpetration of a felony (Kidnapping) did exist, the jury sentenced both Markman and the defendant to death. Thus, the decision to not sever the penalty phase of the trial was proper. 54 Pursuant to the Fifth Amendment of the United States Constitution, a defendant is not required to testify in a case against him or her. The defendant made the choice to testify on his own behalf during the penalty phase of his trial. Following the conclusion of the Commonwealth's case at the penalty phase of the trial, the District Attorney and counsel for both defendants had a side bar discussion with this Court.TM During this side bar discussion, Housman's attorney asserted that he did not want to be involved with co-defendant Markman's penalty phase. Housman's attorney contended that because Markman and the defendant were not adverse parties, that this part of the trial was solely between the defendant and the Commonwealth and Markman and the Commonwealth.275 Markman's counsel did raise an objection to this, but the Court ruled that there would be no cross-examination of the defendant and his witnesses by Markman or of Markman's witnesses by the defendant. Counsel for the defendant made no objection. In addition, at the penalty phase, both Markman and the defendant were given the opportunity to provide mitigating evidence, whereby, both did provide such testimony. Finally, the defendant argues that the cautionary instruction given by the Court pertaining to the mitigating circumstances was inadequate and did not 274 N.T. 1277-1278. 275 N.T. 1278. 55 remove any possible prejudice to the defendant. The instruction that the only aggravating factor to be applied to both the defendant and co-defendant Markman was the killing in perpetration of a felony, which in both cases was kidnapping, was repeated to the jury by the trial court. Kidnapping was the only aggravating circumstance submitted in this case.276 Thus, the instructions given to the jury by the trial court were not in error and the jury properly relied upon them in finding that the aggravating circumstance outweighed the mitigating circumstances for both defendants. Therefore, the court's decision not to sever the penalty phases did not result in prejudice to the defendant, and therefore was proper. 3. Defendant's Motion on the Admittance of his Non-custodial Interview with Virginia State Police on October 7, 2000 In the defendant's third post-sentence motion, he argues that his statements to Deputy Vaughan on October 7, 2000, should have been suppressed because he underwent a custodial interrogation, but did not receive Miranda warnings and voluntarily, knowingly and intelligently waive his constitutional rights prior to the interrogation. This argument is without merit. Pursuant to Sanchez, Virginia has the greatest state interest in this matter, and thus Virginia law controls.277 Defendant's discussion of Pennsylvania law as it applies to this issue is misplaced.278 276 N.T. 1264. 277 See discussion supra Part ll.B. 56 In Miranda, the Supreme Court held that an individual must be warned of his right to remain silent and his right to an attorney before being questioned by police only when that "individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning.''279 Subsequent case law indicates that Miranda warnings are implicated "only where there has been such a restriction on a person's freedom as to render him 'in custody.'''28° Further, "it is the custodial nature rather than the location of the interrogation that triggers the necessity for giving Miranda warnings.''281 Therefore, any statements made in an interrogation that cannot be characterized as custodial are not subject to suppression based on an omission of Miranda warnings. The determination that an encounter with a law enforcement officer is custodial is made by examining the circumstances of each case, with "the ultimate inquiry simply whether there occurred a 'formal arrest or restraint on the 278 See Defendant's brief at Section 3. 279 Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630 (1966). 280 Bailey v. Commonwealth, 259 Va. 723, 529 S.E.2d 570, 583 (2000) (citing Oregon v. Mathiason, 429 U.S. 492,495, 97 S.Ct. 711 (1977)). 281 Id. at 746, 529 S.E.2d at 583 (citing Coleman v. Commonwealth, 226 Va. 31, 47, 307 S.E.2d 864, 872 (1983), cert. denied, 465 U.S. 1109, 104 S.Ct. 1617 (1984)). 57 freedom of movement' of the degree associated with formal arrest.''282 Further, that determination "depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.''283 Law enforcement officers are required to provide Miranda warnings before questioning an individual if a reasonable person in the suspect's position would have understood that he or she was under arrest.284 The Court should consider various factors in determining whether a detention constitutes the functional equivalent of an arrest, including, but not limited to (1) the manner in which the individual is summoned by the police, (2) the familiarity or neutrality of the surroundings, (3) the number of officers present, (4) the degree of physical restraint, (5) the duration and character of the interrogation, and (6) the extent to which the officers' beliefs concerning the potential culpability of the individual being questioned were manifested to the individual.2s5 In the case at bar, the defendant was not detained in a manner that constituted a custodial arrest. On Friday evening, October 6, 2000, the Franklin County Virginia Sheriff's Office dispatched Deputy Sheriff Brian Vaughan to the home of Howard Housman after Mr. White had filed a missing persons report for 282 Harris v. Commonwealth, 27 Va. App. 554, 564, 500 S.E.2d 257, 262 (1998) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520 (1983)(citation omitted)). 283 Id. at 564, 500 S.E.2d at 262 (quoting Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 1529(1994)). 284 Id. (citing Cherry v. Commonwealth, 14 Va.App. 135, 140, 415 S.E.2d 242, 244-45 (1992)). 285 Id. at 565, 500 S.E.2d at 262. 58 his daughter who drove a black 2000 Jeep Cherokee. When Mr. Housman informed Deputy Vaughan that Housman and his female companion were not at the home at that time, Deputy Vaughan mistakenly informed Mr. Housman that Housman's female companion had been reported missing. Mr. Housman told Deputy Vaughan that he would call when the couple returned. When the couple did return, they called the Sheriff's Office rather than Mr. Housman. At that point, on Saturday, October 7, 2000, Deputy Vaughan was again dispatched to Mr. Housman's home. When the co-defendants emerged from the home, they freely spoke with Deputy Vaughan. It was then that Deputy Vaughan learned that Markman was not Leslie White. Further, at this time, Deputy Vaughan stated that he believed "it was a run of the mill missing person report, a young lady who had chosen not to be where she was supposed to be, had left with somebody else, and there was somebody possibly trying to hide her out.''286 Also, Deputy Vaughan did not know, at this point, that the black Jeep in the driveway belonged to Leslie. Deputy Vaughan first asked to speak with Housman. Housman voluntarily entered the front passenger seat of Deputy Vaughan's patrol car. The passenger seat did not contain a cage of any kind, and the door could have been opened by any passenger. Deputy Vaughan's questioning lasted approximately fifteen to twenty minutes. 286 NTOH 49. 59 At the conclusion of his questioning, Deputy Vaughan then asked to speak with Markman in the same manner. Housman freely exited the passenger seat of the patrol car, and Markman voluntarily took his place in the seat. Deputy Vaughan interviewed Markman for approximately ten to fifteen minutes. After conversing with both defendants, Deputy Vaughan left, leaving Housman and Markman free at Housman's father's home. At this time, Deputy Vaughan did not know that Leslie was dead. In consideration of the above circumstances, the defendant was not subject to a custodial interrogation when Deputy Vaughan interviewed him. Since there was no custodial interrogation, Miranda warnings were not required. Therefore, any statements made by defendant during his interview with Deputy Vaughan were properly admitted. 4. Defendant's Motion on the Admittance of His Tape Recorded Statement of October 12, 2000 The defendant raises several issues in his post-sentence motion concerning his tape recorded statement of October 12, 2000 to Virginia authorities. First, the defendant argues that his confession was improperly admitted because it was in violation of Pennsylvania Wiretapping and Electronic Surveillance Act. 287 The Court finds that no violation of the Pennsylvania Wiretap 287 18 Pa.C.S. § 5701 et seq. 60 Act occurred in the taping of defendant's statement. Defendant's motion is refused and dismissed. Pursuant to Sanchez, Virginia law should be applied to this issue.288 The validity of the defendant's taped statement is of paramount concern to the State of Virginia because the statement was taped in Virginia, by Virginia police. Virginia's Interception of Wire, Electronic or Oral Communications Act (hereinafter "Virginia's Wiretap Act") generally provides that where any wire or oral communication has been intercepted, no part of the contents of such communication or the evidence derived therefrom is admissible.289 However, Section 19.2-62(B)(2) of Virginia's Wiretap Act allows for "a person to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.''29° The officers who were present while the defendant gave his statement on October 12, 2000, were party to the communication. In fact, Agent Oliver testified that he did give consent and was a party to the communication.291 Since only single-party consent is needed under 288 See discussion supra Part ll.B. 289 Va. Code Ann §19.2-65. 29o Va. Code Ann. §19.2-62(B)(2). 291 NTOH 84. 61 Virginia's Wiretap Act, the taped statement was not illegal and should not be suppressed. Further, defendant Housman's confession does not fall under the meaning of "oral communication" in Virginia's Wiretap Act. An oral communication under Virginia's Wiretap Act is "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectations but does not include any electronic communication.''292 Defendant had no expectation that his statement would not be subject to interception because he knew his confession was being recorded. At one point in the interview, the defendant even stated, "I'd like to hear that on tape because I know you all tape stuff.''293 Further, even though the confession was taped by a recorder in a wall cabinet, Agent Oliver's personal micro-recorder was sitting on the desk between the parties during the entire interview.294 The defendant had no expectation that his confession would not be subject to interception. Therefore, the defendant's confession is admissible. Further, Pennsylvania Superior Court has determined that information from legal wiretapping from foreign jurisdictions that would otherwise be illegal in 292 Va. Code Ann. §19.2-61. 293 Commonwealth Ex. 83-B, 8. 294 NTOH 87. 62 Pennsylvania is admissible in Pennsylvania COUrtS.295 In Commonwealth v. Bennett,296 the court held that information received from a New Jersey drug investigation and used to supplement a Pennsylvania search warrant was admissible as evidence in court, even though the information was obtained in violation of Pennsylvania's Wiretap Act.297 The Pennsylvania Superior Court in Larrison v. Larrison298 held that a taped telephone conversation between parties in Pennsylvania and New York was admissible in a Pennsylvania court despite the violation of the Pennsylvania Wiretap Act because the conversation was recorded legally in New York.299 In both cases, the Superior Court not only recognized that Pennsylvania has no power to control the activities of a sister state, but also sought to promote the free exchange of information between Pennsylvania law enforcement agencies and those of foreign jurisdictions. Thus, granting the defendant's motion to suppress his taped statement would cut against established law. 295 See Commonwealth v. Bennett, 245 Pa. Super. 457, 460, 369 A.2d 493 (1976); Larrison v. Larrison, 750 A.2d 895, 888-889 (Pa. Super 2000). 296 Bennett, 245 Pa. Super. 457, 369 A.2d 493 (1976). 297 Bennett at 459-460, 369 A.2d at 494; see also Wiretapping and Electronic Surveillance Control Act, 18 PA.C.S.A. §5701, et seq. (West 2000)[hereinafter Pennsylvania's Wiretap Act]. 298 Larrison v. Larrison, 750 A.2d 895 (Pa. Super. 2000). 299 Id. at 898. 63 Second, the defendant invokes the rule established in Commonwealth v. Davenport3°° in order to seek suppression of his taped statement of October 12, 2000. In Davenport, the Pennsylvania Supreme Court held that a Pennsylvania defendant must be arraigned within six hours of his arrest, or any evidence obtained after this six-hour period must be excluded from trial. Since this ruling, the Pennsylvania Supreme Court has modified the rule. In Commonwealth v. Duncan,3°~ the Court altered the rule to provide that, "if the statement is obtained within six hours of arrest, absent coercion or other illegality, such statement is admissible.''3°2 The purpose of the six-hour rule, "is to ensure that an arrestee is not held indefinitely in a coercive custodial atmosphere without the benefit of an arraignment which provides the arrestee with a full explanation of his constitutional rights and the nature of the charges against him.''3°3 Moreover, in Commonwealth v. Bridqes,3°'~ the Court was unwilling to apply the Davenport/Duncan rule to a case where the defendant is detained after arrest 3oo Commonwealth v. Davenport, 370 Pa. 310, 471 A.2d 278 (1977). 304 Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987). 302 Commonwealth v. Bridqes, 563 Pa. 1,20,757 A.2d 859, 868 (2000) (citing Commonwealth v. Davenport, 514 Pa. 395,525 A.2d 1177 (1987)). 303 Id. at 20, 757 A.2d at 868-69 (citing Commonwealth v. Bond, 539 Pa. 299, 652 A.2d 308,312 (1995)). 304 Bridges, 563 Pa. 1,757 A.2d 859 (2000). 64 for a crime separate from the one about which he is being interrogated.3°5 "We do not think it wise to extend the protections of Davenport/Duncan to custodial interrogations where the defendant has not been placed under arrest for the crime about which he or she is being questioned.''3°6 Instead, the Court determined that the six-hour time period should begin only after the person is arrested for a crime for which he is being interrogated.3°7 For example, in Commonwealth v. Washinqton,3°8 the Court refused to suppress the defendant's confession to murder on the grounds of the Davenport/Duncan rule where the defendant was arrested on an unrelated charge and confessed during an interrogation that occurred almost thirty hours after his arrest on the unrelated charge.3°9 In the present case, the defendant was arrested on October 11,2000, at 10:50 p.m., on a grand larceny charge for the theft of the Jeep Cherokee. As a result of this charge he was detained in the Franklin County Sheriff's Office. Housman's interrogation began at 4:18 a.m. on October 12, 2000, with the reading of his rights. He signed a waiver of his rights at 4:22 a.m., and then 3o5 Id. at 24, 757 A.2d at 871. 306 Id. 307 Id. 308 Commonwealth v. Washinqton, 547 Pa. 563, 692 A.2d 1024 (1997), cert, denied, 523 U.S. 1006, 118 S.Ct. 1190 (1998). 309 Id. at 570-71,692 A.2d at 1027-28. 65 proceeded to give a voluntary statement, confessing his and Markman's involvement in the murder of Leslie White. The statements Housman made during that interrogation were a result of his arrest under the larceny charge.3~° The Davenport/Duncan rule does not apply to those statements made as a result of an arrest on an unrelated charge, and thus, are admissible. 5. Defendant's Motion on the Admittance of Evidence from the Searches of the Newville, Pennsylvania Trailer The defendant claims that the first search of the co-defendants' trailer in Newville on October 9, 2000, was conducted using a search warrant supported by insufficient probable cause, and thus all evidence should have been suppressed. Specifically, Pennsylvania State Police collected several pieces of incriminating evidence, including stereo speaker wire, a hammer, and fibers. The standard for determining probable cause to issue a search warrant is well established. A magistrate may not consider any evidence outside the affidavit in order to determine whether probable cause has been established.3~ 34o Agent Oliver swore out the warrant of arrest for homicide for Housman on October 12, 2000 at 12:33 p.m. at the magistrate in Floyd County, Virginia. NTOH 98. Agents Oliver and Lester served the warrant on Housman at 2:24 p.m., at which time Housman was taken directly to the magistrate for the issue of bond. NTOH 98. 3~ PA.R.CRIM.P. 203(B). 66 Pennsylvania applies the "totality of the circumstances" test, as set out in Illinois v. Gates,3~2 to find probable cause. In Gates, the Court stated The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that. evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.3~3 In the present case, the affidavit of probable cause for the October 9 search was supported with facts that made it probable that evidence of criminal activity would be found in the trailer. In the affidavit, it was asserted that Leslie's body was found earlier that day on property belonging to the Housman family.TM It also indicates that Miss White had been reported missing on October 8, and that no one had heard from her since October 4, at which time she was last seen 312 Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317 (1983). 313 Id. at 214, 103 S.Ct. at 2320. The Superior Court of Pennsylvania sets out the standard from Gates as such: That the information offered to demonstrate probable cause must be viewed in a common sense, nontechnical, ungrudging and positive manner. It must also be remembered that probable cause is based on a finding of the probability, not a prima facie showing of criminal activity, and that deference is to be accorded a magistrate's finding of probable cause. Hearsay information is sufficient to form the basis of a warrant so long as the magistrate is provided with sufficient information to make a "neutral" and "detached" decision about whether there is a fair probability that contraband or evidence of a crime will be found in a particular place. Commonwealth v. Woosnam, 819 A.2d 1198, 1208 (Pa. Super. 2003) (citing Commonwealth v. Baker, 532 Pa. 121,615 A.2d 23, 25 (1992)). 314 Affidavit of probable cause, dated October 9, 2000. 67 leaving her job at Wal-Mart.315 In addition, a black Jeep similar to Leslie's had been seen at the Newville trailer on October 4.316 There was also a reference in the affidavit noting that Leslie had left work early on October 4 specifically to go to Housman's house and console him over the death of his father.317 These facts, viewed together in light of the totality of the circumstances, indicate a probability of criminal evidence at the Newville trailer. Therefore, because of the existence of probable cause to search the trailer on October 9, the Court did not err in admitting all evidence discovered from that search. The defendant also claims that under the fruit-of-the-poisonous tree doctrine,318 the evidence from the Newville trailer obtained on October 13, 2000, as a result of Housman's statements to Virginia State Police the morning of October 12, 2000, must be suppressed. The affidavit of probable cause was based partly on the defendant's valid confession. 315 Id. 316 Id. 317 Id. 318 See Won.q Sun v. United States, 371 U.S. 471,487-88, 83 S.Ct. 407 (explaining fruit-of-the-poisonous tree doctrine as, "whether, granting the establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint"). 68 The standard of review in evaluating a court's denial of a motion to suppress evidence is well established.3~9 The court first must determine whether the factual findings are supported by the record.32° In order to make this determination, the court considers only evidence from both the prosecution's witnesses, that when read in the context of the record as a whole, remains uncontradicted.32~ Further, issues of credibility can best be resolved through a court's personal observations.322 The court's assessment of credibility through observation will not be overturned absent clear and manifest error.323 In the present case, the confession of the defendant obtained by the Virginia State Police in the early morning of October 12, 2000, was constitutional. The defendant was read his rights at 4:18 a.m., and signed a waiver of those rights at 4:22 a.m. The defendant then made a voluntary, knowing and intelligent statement to police, where he inculpated himself and Markman in the murder of Leslie White. Therefore, because of the voluntary nature of his statement, the 319 At the suppression hearing, the Commonwealth has the burden of establishing that the challenged evidence was not obtained in violation of the defendant's constitutional rights. See PA.R.CRIM.PRO. Rule 581(h). 320 See Bridges, 563 Pa. at 19, 757 A.2d at 868; see also Commonwealth v. Nester, 551 Pa. 157, 160, 709 A.2d 879,880-81 (1998). 321 Nester, 551 Pa. at 160, 709 A.2d at 880-81. 322 Commonwealth v. Camacho, 425 Pa. Super. 567, 573, 625 A.2d 1242, 1245 (1993). 323 Id. 69 evidence obtained partially as a result of this statement was properly admitted, and should not have been suppressed based on the fruit-of-the-poisonous tree doctrine. 6. Defendant's Motion on His Convictions of Kidnappin.q and Conspiracy to Commit Kidnapping Defendant Housman argues that the evidence was insufficient to support the convictions of kidnapping and conspiracy to commit kidnapping. A person is guilty of kidnapping under 18 Pa.C.S.A. [}2901(a): if he unlawfully removes another a substantial distance under the circumstances from a place where he is found, or if he unlawfully confines another for a substantial period in a place of isolation with any of the following intentions: (1) To hold for ransom or reward, or as a shield or hostage (2) To facilitate the commission of any felony or flight thereafter (3) To inflict bodily injury on or to terrorize the victim or another (4) To interfere with the performance by public officials of any governmental or political function.324 The test for determining the sufficiency of the evidence for this charge is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the jury could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt.325 Additionally, the 324 18 Pa.C.S.A. § 2901(a). 325 Commonwealth v. Aulisio, 514 Pa. 84, 91,522 A.2d 1075, 1079 (1987) (citing Commonwealth v. Syre, 507 Pa. 299, 303,489 A.2d 1340, 1342 (1985)). 7O Pennsylvania Crimes Code § 2901(b) states that "[a] removal or confinement is unlawful within the meaning of this section if it is accomplished by force, threat or deception."326 Further, circumstantial evidence is sufficient to establish the elements of kidnapping.327 In Commonwealth v. Miller,328 the Pennsylvania Supreme Court found sufficient evidence to support the charge of kidnapping where the victim was last seen alive in the defendant's company, her body was found in a remote area some distance from where she was last seen, and there was a rope tied around her leg.329 In the present case, Miss White was last seen leaving Wal-Mart in order to visit Housman at the trailer he shared with Markman. Housman had called her at 326 18 PA.C.S.A. § 2901(b). 327 Commonwealth v. Miller, 541 Pa 531,664 A.2d 1310 (1995). 328 Id. 329 Id. at 546, 664 A.2d at 1317. See also, e.g.; Commonwealth v. Chester, 526 Pa. 578,608-609, 587 A.2d 1367, 1382 (1991) (holding that circumstantial evidence sufficient for kidnapping where victim was last seen leaving a bar with defendants and his body was found in a secluded wooded a distance away from the bar); Commonwealth v. Beqley, 566 Pa. 239, 262-263, 780 A.2d 605, 619 (2001) (finding circumstantial evidence sufficient where victim was intending to accept a job from defendant at time of disappearance, her body was found a substantial distance from where she was last seen in an isolated area, and her body was stripped of clothes and gagged when it was found); Commonwealth v. Williams, 252 Pa. Super. 435, 381 A.2d 1285 (1977) (kidnapping conviction circumstantially proven where defendant was found driving the victim's car with several of victim's belongings and a search of the car revealed a gun and tape which was identical to that used to bind the victim). 71 work to ask that she come to the trailer to console him over the death of his father. Both defendants testified that Miss White was deceived into coming to the trailer by Housman's false statement. However, Leslie complied with Housman's request and left Wal-Mart immediately after receiving the phone call. The next time Leslie was seen, she was found dead in Virginia, bound and gagged in the trunk of a car in the remote and deserted "old home place," the piece of property owned by Housman's mother. Following the reasoning in Miller, these facts are sufficient to find the defendant guilty of the crime of kidnapping. Further, turning to the elements of the crime itself, "[k]idnapping can be established by proof of either removal o_r a substantial period of isolated confinement; proof of both is not necessary.''33° In regards to "removal", "[w]hether the victim has been moved a substantial distance is to be evaluated under the circumstances.''331 In Chester, the Court held that the following circumstances were sufficient to establish that the victim had been moved a substantial distance: he believed he was taking the two defendants home and his body was found in a wooded area a substantial distance from the bar from which they left.332 Similar to the victim in Chester, in the instant case, Miss White was 330 Chester, 526 Pa. at 609, 587 A.2d at 1382 (emphasis in original). 331 Id. 332 Id. 72 lured by deception to the trailer by Housman's false phone call, and she was found in a remote place in another state.333 Further, the twenty-five miles Miss White traveled to the trailer after being lured from Wal-Mart is a substantial distance.334 This trip compromised Miss White by isolating her at the trailer and therefore allowing the defendants to "deal with her at will.''335 Kidnapping can also be proven if the victim was confined for "a substantial period of time in a place of isolation.''336 The defendant argues that the Commonwealth did not prove beyond a reasonable doubt that Leslie was confined for a substantial period of time, and that her confinement occurred in a place of isolation. These arguments are without merit. 333 Defendant argues that the evidence of the deceptive phone call falls only on co-defendant Housman, thus leaving insufficient evidence to charge defendant Markman (Defendant's Brief 50). This argument is without merit due to the conspiracy conviction against Markman that is unchallenged. 334 Commonwealth v. Dehoniesto, 425 Pa. Super. 83, 624 A.2d 156 (1993) (finding that six miles was a "substantial distance"); Commonwealth v. Campbell, 353 Pa. Super. 178,509 A.2d 394 (1986) (holding that the "substantial distance" element met when defendant drove two miles in victims car); Commonwealth v. Hughes, 264 Pa. Super. 118,399 A.2d 694 (1979) (finding two miles sufficient evidence of a "substantial distance"). 335 Commonwealth v. Huqhes, 264 Pa. Super. 118, 126, 399 A.2d 694, 698 (1979) (holding that the movement of the victim away from the security of familiar surroundings seriously endangered the victim and once isolated, the defendant was free to deal with his victim at will). 336 18 Pa.C.S.A. § 2901(a). 73 First, Miss White was, in fact, confined for a substantial period of time. In Commonwealth v. Huqhes,337 the Superior Court held that a substantial period of time "can depend on the mental state of the victim. The fright that can be engendered in thirty minutes can have the same debilitating effect on one person as thirty hours on another.''338 The defendants in the present case bound, blindfolded and gagged Miss White and then went outside to smoke a cigarette for an unspecified amount of time.339 During this time, Miss White was unable to see, move or cry out for help. The defendant argues that according to each defendant's account of events, Leslie's time of restraint or confinement was "relatively brief.''3'~° However, as noted previously, only circumstantial evidence is needed to prove kidnapping. Thus, these issues were appropriate questions of fact for the jury to decide. Second, Miss White's confinement for a substantial period of time did, in fact, occur in a place of isolation. In Commonwealth v. Jenkins, 341 the Pennsylvania Superior Court held that "the statutory concept of a 'place of isolation' is 'not geographic isolation, but rather effective isolation from the usual 337 Hughes, 264 Pa. Super. 118,399 A.2d 694 (1979). 338 Id. at 126, 399 A.2d at 698. 339 N.T. 1014, 1102. 340 Defendant's Brief at 45. 341 Commonwealth v. Jenkins, 455 Pa. Super. 152,687 A.2d 836 (1996). 74 protections of society.'''342 In addition, the court in Jenkins found that a place of isolation does exist "if detention is under circumstances which make discovery or rescue unlikely.''343 In the instant case, Miss White was "removed from the usual protections of society" and thus found herself in a place of isolation once she was lured from the security of her workplace and eventually arrived at the trailer. Once at the trailer, bound and gagged, her detention in such a manner made her discovery or rescue unlikely, if not impossible. Further, the court in Jenkins found that another indicator of kidnapping is where the fate of the victim is exclusively in the control of the defendant.344 In the present case, once Miss White was isolated at the trailer, she was completely under the control of the defendants, who were free to deal with her at will.345 The defendants tied up and gagged Miss White, at one point leaving her alone in the trailer while they smoked a cigarette outside. From the moment she was tied and 342 Id. at 156, 687 A.2d at 838 (citing Commonwealth v. Mease, 357 Pa. Super. 366, 371,516 A.2d 24, 26 (1986)). The court also added that the "focus must be on whether the circumstances surrounding the detention rendered [the victims] effectively isolated from rescue... "Id. 343 Id. at 156, 687 A.2d at 837 (citing Commonwealth v. Hook, 355 Pa. Super. 10, 13-14, 512 A.2d 718,719 (1986) (emphasis added)). 344 Id. at 156, 687 A.2d at 838. 345 See Hughes, 264 Pa. Super at 126, 399 A.2d at 698 (using defendant's position of control in determining kidnapping). 75 gagged, Leslie was not only under the exclusive control of the defendants, but she was also isolated to the point where rescue or discovery was unlikely?6 Additionally, the amount of circumstantial evidence in this case was sufficient for the jury to make the determination it did, and precludes granting defendant's motion to dismiss the kidnapping charge and conviction as a matter of law. Miss White was deceived into traveling twenty-five miles to an isolated area, where she was confined in that isolated location under the complete control of the defendants for a substantial period of time. The circumstantial evidence proving these elements is more than sufficient to preclude defendant's motion. For the same reasons, the conviction for criminal conspiracy to commit kidnapping is sustained. The crime of criminal conspiracy is defined as: a) Definition of conspiracy. - - A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he: (1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or (2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.347 Conspiracy requires understanding with a kidnapping ?8 346 See supra text accompanying note 342. 347 18 PA.C.S.A. § 903. proof that the defendant reached an agreement or co-conspirator to commit a certain crime, in this case, 76 In the present case, criminal conspiracy was proven beyond a reasonable doubt. Evidence shows that the co-defendants agreed to commit the crime of kidnapping. Defendant Housman called Leslie at work to ask that she come to the trailer to console him over the death of his father; Markman had stated earlier that she wanted Housman to invite Leslie to the trailer so that Housman could tell Leslie "it was over" in front of Markman. When Leslie arrived at the trailer that day, the co-defendants bound and gagged her together, leaving her in isolation for a substantial period of time while they stepped outside the trailer to smoke cigarettes. Once back inside the trailer, neither defendant did anything to make Leslie's discovery or rescue possible. In fact, together they left her bound and gagged and proceeded to strangle and suffocate her. Viewing the testimony in the light most favorable to the Commonwealth, the evidence is sufficient to show that the co-defendants agreed to lure Leslie to the trailer and detain her under circumstances that would make her discovery or rescue unlikely. 7. Defendant's Motion on the Admittance of A.q.qravatin.q Circumstances in Sentencing Upon a conviction of First Degree Murder,349 the Court conducts a separate sentencing hearing in which the jury shall determine whether the 348 See Commonwealth v. Allen, 425 Pa. Super. 615, 618,625 A.2d 1266, 1268 (1993). 349 18 PA.C.S.A. § 1102(a)(1). 77 defendant shall be sentenced to death or life imprisonment.35° Evidence relating to aggravating and mitigating circumstances may be presented for the jury's consideration in determining the sentence. Under 42 PA.C.S.A. § 971 l(c)(iv), the verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance specified in subsection (d) and no mitigating circumstance or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances.35~ In the present case, the applicable aggravating circumstance is committing a killing while in the perpetration of a felony.352 The evidence was sufficient to support a conviction of kidnapping, a felony.353 Therefore, it was proper for the jury to consider that the defendant committed a killing while in the perpetration of a felony, thus sentencing him to death.354 35o 42 PA.C.S.A. § 9711(a)(1). 351 42 PA. C.S.A. § 971 l(c)(iv). 352 42 PA.C.S.A. § 9711(d)(6). The Court charged the jury with this aggravating circumstance, stating, "That is the only aggravating circumstance..." N.T. 1264. 353 18 PA.C.S.A. § 2901(a); see also discussion supra Part II.C.6; Commonwealth v. Lee, 541 Pa. 260, 282,662 A.2d 645, 656 (1995) (holding that "the only relevant inquiry is whether there is sufficient evidence in the record to support the aggravating circumstance that the killing was committed while in the perpetration of a felony"). 354 See discussion supra Part II.C.6. 78 8. Defendant's Motion on the Admittance of Photos of Defendant At trial, the prosecution was permitted to introduce evidence of two photographs taken with Leslie White's camera following her death. The photographs were taken during the defendants' stay at the Overstreet trailer in Virginia.355 Mr. Overstreet testified that the defendants had offered to sell them the camera for around $100, but that he declined.356 After weighing the probative value of the two photographs of the defendant taken with Miss White's camera after she was murdered, the Court found that the photographs were properly admitted into evidence. The defense argues that the photographs were irrelevant and prejudicial. However, this argument is without merit. Pennsylvania Supreme Court has held: The admission of evidence is a matter vested within the sound discretion of the trial court, and such a decision shall be reversed only upon a showing that a trial court abused its discretion. In determining whether evidence should be admitted, the trial court must weight the relevance and probative value of the evidence against the prejudicial impact of that evidence. Evidence is relevant if it logically tends to establish a material fact in the case or tends to support a reasonable inference regarding a material fact. Although a court may find evidence is relevant, the court may nevertheless conclude that such evidence is inadmissible on account of its prejudicial impact.357 355 See N.T. 463, 475-478. 356 See N.T. 476. 357 Commonwealth v. Alderman, 811 A.2d 592,595 (Pa. Super. 2002) (citing, Commonwealth v. Reid, 811, A.2d 530, 550 (Pa. 2002). 79 The Supreme Court of Pennsylvania has also held that, "Evidence that merely advances an inference of a material fact may be admissible, even where the inference to be drawn stems only from human experience." 358 Moreover, Rule 401 of the Pennsylvania Rules of Evidence states Relevant Evidence is evidence that has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence.''359 Rule 403 of the Pennsylvania Rules of Evidence permits the exclusion of evidence if the probative value of the evidence is outweighed by other factors, such as waste of time, danger of unfair prejudice, confusion of the issues, danger of unfair prejudice, misleading the jury, needless presentation of evidence, or considerations of undue delay.36° In the present case, the Court decided that the two photographs were relevant and permitted them to be shown to the jury.361 The photographs, which were taken during the defendants' stay at the Overstreet trailer in Virginia, were admitted to show the demeanor of the defendant following the murder. 362 One of 358 Id. (citing Commonwealth v. Hawk, 551 Pa. 71, 77, 709 A.2d 373, 376 (1998). 359 PA. R.E. 401. 360 PA. R.E. 403. 361 N.T. 616. 362 N.T. 463. 80 the photographs depicted the defendant with his middle finger out to the camera,363 while the other photograph showed the defendant with his hand around Markman's throat.364 The admitted photographs not only went towards advancing the ability of the jury to infer the demeanor of the defendant, but also showed the lack of duress on the part of the defendant, as the photographs make it seem as though he was "having a good time.''365 Consequently, the Court, within its sound discretion, concluded the probative value of allowing the jury to see the photographs outweighed any prejudicial effect to the defendant. Therefore, the photographs were properly admitted into evidence. 9. Defendant's Motion on Closin.q Ar.qument of Co-defendant The defendant avers that he was prejudiced by the introduction of evidence that the defendant abused co-defendant Markman over the course of two years, especially the evidence of abuse during the months and days leading up to the murder. The defendant also argues that Markman's counsel's opening and closing arguments severely prejudiced the defendant by inflaming the passions of the jury, preventing them from determining his guilt and sentence 363 N.T. 463. 364 N.T. 477. 365 N.T. 463. 81 based on the evidence presented by the Commonwealth. These arguments are without merit. In Commonwealth v. Simpson,366 the court held that "the trial court is in the best position to assess the effect of an allegedly prejudicial statement on the jury, and as such, the grant or denial of a mistrial will not be overturned absent an abuse of discretion.''367 The court further held "a mistrial may be granted only where the incident upon which the motion is based is of such a nature that its avoidable effect is to deprive the defendant of a fair trial by preventing the jury from weighing and rendering a true verdict.''368 It has also been held that where cautionary instructions are adequate to overcome any possible prejudice, a mistrial is not necessary.369 In addition, the Supreme Court of Pennsylvania has defined the standard for reviewing allegations of improper argument by a prosecutor in Commonwealth v. Thomas,37° in which it stated the following: 366 Commonwealth v. Simpson, 562 Pa. 255,754 A.2d 1264 (2000). 367 Commonwealth v. Simpson, 562 Pa. 255,270-271,754 A.2d 1264, 1272 (2000) (citing Commonwealth v. Robinson, 543 Pa. 190, 200-01,670 A. 2d 616, 621 (1995)). 368 Simpson, 562 Pa. at 270-271. (citing Commonwealth v. Spotz, 552 Pa. 499, 523-25, 716 A.2d 580, 582 (1998). 369 Spotz, 716 A.2d at 592-93 (citing Commonwealth v. Lawson, 519 Pa. 175, 185-87, 546 A.2d 589, 594 (1988). 370 Commonwealth v. Thomas, 552 Pa. 621,647, 717 A.2d 468 (1998) (citing Commonwealth v. Henry, 550 Pa. 346, 706 A.2d 313 (1997). 82 The standard for reviewing such claims is well settled. Generally, a prosecutor's arguments to the jury are not a basis for the granting of a new trial unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility towards the accused which would prevent them from properly weighing the evidence and rending a true verdict. Moreover, the prosecution, similar to the defense, is accorded reasonable latitude and may employ oratorical flair arguing its version of the case to the jury. The arguments advanced must, however, be based upon matters in evidence and/or upon any legitimate inferences that can be drawn therefrom. Finally, any allegedly improper prosecutorial comments must also be examined within the context of the conduct of defense counsel.371 In the present case, both counsel for the defendant, as well as counsel for Markman, had the opportunity to present their case in the form of a closing argument. Consistent with Commonwealth v. Thomas,372 both defendants' attorneys, as well as the District Attorney, are to be given reasonable latitude in the deliverance of their cases to the jury. Counsel for all parties imparted their case with their own distinct "oratorical flair." 373 At the conclusion of the penalty phase, Markman's attorney asserted that he wished the jury to consider: What was her relative role in this compared to Mr. Housman. According to both, she did bind, gagged, and blindfolded Leslie Rae White. But it was Will Housman that choked Leslie Rae White to 371 Id. 372 Id. 373 Id. 83 death and then, I suggest to you, set the rest of the agenda on the way down to Virginia.374 Although defendant contends that the closing argument of co-defendant Markman's counsel was so prejudicial towards him that it went "well beyond the purview of the Death Penalty Act requiring the careful consideration of enumerated aggravating circumstances pertaining to the victim and the crime and not the role of any co-defendant in supposedly coercing the other co- defendant to commit it,''375 this argument is without merit. The Court provided proper instruction when co-defendant Markman's counsel presented the mitigating circumstance of duress. The instruction was as follows: "Mitigating circumstances, if proven to your satisfaction for Markman, would be that...whether she acted under extreme duress, although not such duress as to constitute a defense to the prosecution; or acted under the substantial ,,376 domination of another person, The Court ruled that the affirmative defense of duress could not be presented by Markman's counsel. The closing argument of Markman's counsel was an attempt to enable the jury to find that the mitigating circumstances outweighed the aggravated circumstance. Pennsylvania law that is directly on point with regard to the defendant's argument that Markman was precluded from 374 N.T. 169. 375 Defendant's brief at p. 56. 376 N.T. 1443. 84 attempting to prove the mitigating circumstance of duress and acting under the substantial dominion of another person does not exist. More importantly, because the jury did not find Markman's mitigating circumstances to outweigh the aggravating circumstance, it sentenced both Markman and the defendant to death. For the reasons set forth above, the defendant's assertions are without merit and relief is denied. 10. Defendant' Motion on the Court's Delivery of a Cautionary Instruction on Admission of Allegations of Abuse "The decision of whether to sever trials of co-defendants is within the sound discretion of the trial COUrt.''377 The trial court is entitled to weigh the inconvenience and expense incurred by the government against the prejudice to the defendants in a joint trial.378 "Only where there had been a manifest abuse of that discretion" will the trial court's decision whether to sever cases against a co- defendant be reversed.379 Defendant avers that the court's instruction regarding the admission of allegations of abuse against the defendant by co-defendant Markman was inadequate and resulted from the trial court's denial of the severance motion. 377 Commonwealth v. Travers, 768 A.2d 845,846 (citing Commonwealth v. Lopez, 559 Pa. 131,739 A.2d 485 (1999)). 378 See Commonwealth v. Lambert, 529 Pa. 320, 331,603 A.2d 568,573 (1992). 379 Id. (citing Commonwealth v. Lasch, 464 Pa. 573, 347 A.2d 690 (1975) (opinion in support of affirmance)). 85 The defendant further claims that the evidence presented with regard to the defendant's alleged abuse of co-defendant Markman was prejudicial. In addition, the defendant argues that the Court's instruction to the jury was not sufficient to cure this prejudice. However, these arguments are all without merit. Following the Court's denial of the duress defense, the following limiting instruction was given by the Court with respect to co-defendant Markman's admitted evidence alleging abuse by the defendant: Ladies and Gentlemen, you have heard before from various witnesses, and I guess you are going to hear again, testimony regarding possible abuse done by Housman to Markman. You are allowed to hear this evidence for one specific limited purpose, that being to assist you on determining the effect it may have had in regard to Markman's claim that she was coerced to commit criminal acts. I specifically tell you that under the law you may not consider this evidence or this testimony as evidence that Housman has bad character or a propensity to commit crime.38° Pennsylvania Supreme Court has held that, "There is a presumption in the law that the jury followed the instruction given by the trial judge..."381 Following this presumption, it is therefore proper to assume that the jury followed the trial court's limiting instruction and did not consider Markman's evidence of abuse for any other purpose. The instruction given by the Court was clearly adequate to 380 N.T. 889-890. 381 Commonwealth v. Steele, 522 Pa. 61, 78,559 A.2d 904, 913 (1998) (citing Commonwealth v. Stotzfus, 462 Pa. 43, 55, 337 A.2d 873, 879 (1975)). 86 cure any potential prejudice stemming from co-defendant Markman's allegations of abuse against her by the defendant. Thus, the instruction given was proper. 11. Defendant's Motion the Court's Refusal to Deliver a Life means Life Instruction Defendant claims that the jury should have been given a "life means life" instruction. However, this argument is without merit. In Simmons v. North Carolina,382 the United State Supreme Court has held that a state, "may not create a false dilemma by advancing generalized arguments regarding the defendant's future dangerousness, while at the same time, preventing the jury from learning that the defendant will never be released on parole.''383 The Pennsylvania Supreme Court has also addressed this issue. The law of this Commonwealth regarding the Simmons384 instruction is clear. In Commonwealth v. Bridqes,385 the court held that the instruction need only be given for cases in which the defendant's future dangerousness is placed at issue. The Pennsylvania Supreme Court has also held that only when a prosecutor injects concerns of the defendant's future dangerousness into a case does the 382 Simmons v. North Carolina, 512 U.S. 154, 114 S.Ct. 2187 (1994). 383 In Simmons v. North Carolina, 512 U.S. 154, 171,114 S.Ct. 2187 (1994), the court reasoned that due process requires that the defendant is entitled to inform the jury that he is ineligible for parole where the state puts the future dangerousness into issue. Id. 384 Id. 385 Commonwealth v. Bridqes, 563 Pa. 1,42,757 A.2d 859, 881 (2000). 87 jury need to be given the instruction that life means life without the possibility of parole.386 The Superior Court of Pennsylvania has also addressed the Simmons issue. In Commonwealth v. Travaqlia,387 the court held that unless the Commonwealth specifically raised the issue of future dangerousness of the defendant, the trial court was actually prohibited from instructing the jury that "life imprisonment" means life without the possibility of parole at defendant's sentencing hearing for murder.38s In the present case, the defendant claims that the evidence that co- defendant Markman presented at the penalty phase pointed to the defendant's future dangerousness. However, no authority has been presented that stands for the proposition that if a co-defendant makes a reference to the defendant's future dangerousness, then a defendant is entitled to a "life means life" instruction, i.e., one that informs the jury that a life sentence means life without the possibility of parole. In all controlling cases on this issue, it is the Commonwealth, not a co- defendant, who has made a specific reference to the defendant's future dangerousness. Further, the Commonwealth may not raise evidence on the 386 In Commonwealth v. May, 551 Pa. 286, 710 A.2d 44 (1998), the court rejected a claim that by raising the aggravating circumstances of significant history of felony convictions, the Commonwealth injected the issue of future dangerousness in sentencing hearings. Id. 387 Commonwealth v. Travaqlia, 792 A.2d 1261, 1265 (Pa. Super. 2002). 388 Id. 88 future dangerousness of the defendant in the penalty phase unless the trial court provides the "life means life" instruction. In the present case, the evidence of abuse, duress, and coercion presented by the Commonwealth did not specifically implicate the future dangerousness of the defendant. Additionally, the statements made by co- defendant Markman did not specifically refer to the defendant's future dangerousness. The evidence that co-defendant's counsel offered was merely an attempt to present mitigating circumstances to preclude her from receiving the sentence of death. In addition, the same opportunity to present such mitigating evidence was afforded to the defendant's counsel as well. As Pennsylvania law regarding this matter clearly reflects, a Simmons "life means life" instruction is only required if: 1) it is requested by defense counsel and 2) the Commonwealth has put the defendant's future dangerousness at issue. In the present case, the record is not clear as to whether the defense counsel had requested such an instruction. First, following the charge, co- defendant's counsel objected to the fact that the Court did not provide a complete instruction on "life means life," but the defendant's counsel failed to do the same.389 Second, during the penalty phases there was never any reference to the defendant's future dangerousness made by the Commonwealth itself. 389 N.T. 1449. 89 The case law has never supported the issuing of a "life means life" instruction when it is the counsel for the co-defendant that puts the future dangerousness of the defendant at issue. In fact, there has been consistent refusal by the Pennsylvania Supreme Court to mandate the giving of a Simmons instruction in all capital cases. It has carved out an exception only when the Commonwealth raises the defendant's future dangerousness. It would be inconsistent with well-settled principles to extend the exception to include co- defendant's evidence at the penalty phase suggesting future dangerousness of the defendant. Therefore, the defendant is denied relief. 12. Defendant's Motion on the Admittance of Expert Opinion Dr. Susan Venuti, Medical Examiner for the Western District of Virginia in Roanoke, performed the autopsy and wrote the Coroner's Report, which further described the condition of Miss White's body. She explained that one piece of red cloth had been put in Miss White's mouth, while another piece of cloth had been tied tightly around her mouth as a gag. Dr. Venuti also explained the way Leslie's feet and wrists had been bound with speaker wire. Noting that the ultimate cause of death was suffocation, Dr. Venuti concluded that Leslie had obviously died prior to leaving the scene of the crime in Cumberland County, Pennsylvania.39° 390 See Commonwealth Exhibit 1; N.T. 525-45. 90 Defendant argues that Dr. Venuti's testimony regarding whether Leslie would have struggled while being strangled should not have been admitted. However, this argument is without merit. The Court properly admitted Dr. Venuti's testimony regarding whether the victim struggled while she was being strangled because such testimony was within the scope of permissible expert testimony. The purpose of expert testimony is to aid the jury when the subject matter is related to a science, skill, or occupation beyond the knowledge or experience of a layman.391 However, if the issue concerns a matter of common knowledge, then the testimony of an expert is inadmissible.392 Under Pennsylvania Rule of Evidence 702 which governs expert testimony: if scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.393 Dr. Venuti was offered as an expert concerning human pathology and the manner of Leslie's death. Such testimony is not a matter of common knowledge. Further, an opinion regarding whether a person would struggle in an attempt to free her airway when it is blocked in the manner in which Leslie's was blocked is a permissible opinion. 391 Commonwealth v. Kinq, 554 Pa. 331,367, 721 A.2d 763, 781 (1998). 392 Id. (citing Commonwealth v. O'Searo, 466 Pa. 224, 229, 352 A.2d 30, 32 (1976)). 393 PA. R.E. 702. 91 In asserting his claim, defendant incorrectly relies on King. In King, the Supreme Court of Pennsylvania found an expert in psychology could not testify about the emotional state of a victim while being tortured and murdered.394 Based on the fact that a person would feel fear and terror while being strangled was so basic, the King court held that an expert opinion was not necessary.395 The present case can be readily distinguished from the King case. In the present case, Dr. Venuti was explaining the likely physical behavior of a victim being murdered in the same manner in which Leslie was murdered. Dr. Venuti was not formulating an opinion concerning her emotional state. Thus, Dr. Venuti was well within the scope of her expert testimony when she opined that Leslie struggled while being murdered by the defendant. In addition, Dr. Venuti's testimony was not unduly prejudicial or speculative. After being asked whether a person would struggle while being strangled, Dr. Venuti merely responded to the posed hypothetical question. Because the question was directly related to the manner in which Leslie White was murdered, the answer falls well within Dr. Susan Venuti's field of expertise. Therefore, as her testimony was correctly admitted, the defendant is denied relief. 394 Commonwealth v. Kinq, 554 Pa. 331,367, 721 A.2d 763, 781 (1998). 395 Id. 92 13. The Defendant's Motion on the Redaction of Co-defendant's Taped Statement of October 12, 2000 Defendant Housman argues that the taped confession of co-defendant Markman was insufficiently redacted, and therefore is in violation of the Bruton rule. In Markman's confession, the defendant's name was substituted with the phrase, "the other person." As set forth in the discussion, supra Part II.C.1, the Court finds that the redaction was adequate. Therefore the defendant was neither prejudiced nor denied his state and federal confrontation rights. 93 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-0246 CRIMINAL TERM CHARGES: (1) CRIMINAL HOMICIDE (2) KIDNAPPING (3) THEFT BY UNLAWFUL TAKING (4) UNLAWFUL RESTRAINT (5)ABUSE OF CORPSE (6)CRIMINAL CONSPIRACY CRIMINAL HOMICIDE (7)CRIMINAL CONSPIRACY KIDNAPPING (8)CRIMINAL CONSPIRACY THEFT BY UNLAWFUL TAKI N G (9)CRIMINAL CONSPIRACY UNLAWFUL RESTRAINT (10) CRIMINAL CONSPIRACY ABUSE OF CORPSE WILLIAM HOWARD HOUSMAN AFFIANTS: TRP. ROGER HALL TRP. SALLY WORST IN RE: DEFENDANT'S POST-SENTENCE MOTIONS ORDER OF COURT AND NOW, this 25th__ day of May ,2004, upon consideration of Defendant's Post Sentence Motions, IT IS ORDERED that Defendant's motions are DENIED. 94 By the Court, George E. Hoffer, P.J. David J. Foster, Esquire Costopoulos, Foster & Fields 831 Market Street/P.O. Box 222 Lemoyne, PA 17043 Attorney for the Defendant Jaime M. Keating Chief Deputy District Attorney For the Commonwealth 95