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HomeMy WebLinkAboutCP-21-CR-0002672-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : DAMON CHAUNCEY DELLER : CP-21-CR-2672-2008 OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Bayley, J., November 10, 2009:-- On May 19, 2009, a jury found defendant guilty of counts of receiving stolen 1 property (a vehicle), and receiving stolen property (a license plate). On August 18, 2009, on the count of receiving the stolen vehicle, defendant was sentenced to pay the costs of prosecution, provide a DNA sample and undergo imprisonment in the Cumberland County Prison for not less than one year minus one day to not less than 2 two years minus one day, to date from May 3, 2009. On the count of receiving the stolen license plate, defendant was sentenced to pay the costs of prosecution. Defendant filed a direct appeal from the judgment of sentence to the Superior Court of Pennsylvania. The evidence in a light most favorable to the Commonwealth was as follows. At approximately 8:30 a.m. on September 20, 2008, Steve Worley of Worley’s Motors in East Pennsboro Township discovered that a 1996 Nissan Maxima was missing from his __________ 1 18 Pa.C.S. § 3925(a). 2 Immediate work release was authorized and defendant was made eligible for a re- CP-21-CR-2672-2008 car lot. Worley still had the keys to the car in his office. He last saw the car on his lot at approximately 7:00 p.m. on September 19. There was no license plate on the car. Worley testified that a couple of days before September 19, defendant had test driven the 1996 Nissan Maxima for approximately fifteen to twenty minutes. No one was in the car with him during this test drive. He returned the car saying that he would have to talk to his wife about purchasing it. Worley reported the Nissan Maxima stolen to the East Pennsboro Township Police. On September 23, 2008, the East Pennsboro Township Police found the stolen Nissan in a parking lot at the Quality Inn in Enola. It was the only vehicle in the lot. The license plate on the vehicle had been discovered stolen in York County on September 22. The vehicle was towed by the police. A Map Quest document found underneath a floor mat in the Nissan showed a starting point for a trip on Terrace Drive in New Cumberland, Cumberland County. Defendant, Damon Deller, had a driver’s license with an address on Terrace Drive. Theresa Fenerty was the girlfriend of defendant. On October 2, 2008, she was interviewed by Officer Jeff Franks. During that interview she wrote a statement that she signed. Fenerty was interviewed by Michael Cotton of the East Pennsboro Township Police on October 4, 2008. That interview was recorded and transcribed. Fenerty was called as a witness by the Commonwealth. Defendant lives with her. Fenerty claimed her rights under the Fifth Amendment not to testify. On the motion of the entry program. -2- CP-21-CR-2672-2008 3 Commonwealth an order was entered granting her use immunity. She continued to take the Fifth Amendment and would not answer any questions despite being ordered 4 by the court to do so. The Commonwealth moved into evidence the recording of her oral statement. Over a defense objection, the motion was granted. Then over a defense objection Officer Cotton read to the jury the transcript of Fenerty’s recorded statement. In that statement, Fenerty said that on September 19, 2008, after she and defendant had argued, he left her home. He called her during the night on September 22 and asked her to pick him up at the Quality Inn in Enola. She went to the parking lot at the Quality Inn and saw defendant backing a car into a parking space. It was the only vehicle in the parking lot. Fenerty pulled up next to defendant. Defendant got some things out of the vehicle he had been driving and put them in Fenerty’s vehicle. Defendant, who did not have a car, asked Fenerty not to touch the vehicle that he had been driving. Fenerty took defendant to her home. The next day Fenerty went to the Quality Inn and saw that the car was gone. At some point, defendant made a statement to Fenerty about the car from which it was obvious to her that it was not his car, it was stolen. He said he “had gotten the car down the road or something like that.” Also at some point, Fenerty noticed a key on her dresser that could have been a car key. The __________ 3 The order was entered pursuant to the Judicial Code at 45 Pa.C.S. § 5947. 4 Although Fenerty continued to assert her Fifth Amendment privilege after being granted use immunity the court chose not cite her for either civil contempt pursuant to -3- CP-21-CR-2672-2008 next morning it was not there. In a concise statement of matters complained of on appeal, defendant avers: First, the Court erred by overruling the defense objections, finding that the cross-examination prong was satisfied, and allowing the reading of pre-trial written statements, and the playing of pre-trail recorded statements, allegedly made by Commonwealth witness Theresa Fenerty, who on the stand answered every question by taking the fifth amendment. See Commonwealth v. Carmody, 799 A.2d 143, 148-149, (Pa. Super. 2002) citing Commonwealth v. Romero, 555 Pa. 4, 722 A.2d 1014 (1999). Secondly, the Court erred by overruling the defense objection and allowing the Commonwealth to frame substantially all questions to Theresa Fenerty as leading questions, thus effectively: (1) allowing the Prosecutor to testify and, (2) simultaneously removing the full weight of the burden of proof from the Commonwealth and shifting a major portion of that burden to the Defendant who, in the jury’s eyes, was now reasonably likely expected to then present a similar “story” using that same technique. Pa.R.E. 804 is titled “Hearsay exceptions; declarant unavailable.” The Rule provides: (a) Definition of unavailability. “Unavailability as a witness” includes situations in which the declarant; persists in refusing to testify concerning the subject (2) matter of the declarant’s statement despite an order of the court to do so; (Emphasis added.) When a witness has been granted use immunity and is ordered to testify and Commonwealth v. Smith, continues to refuse to testify, the witness is unavailable. 647 A.2d 907 (Pa. Super. 1994). When a witness is unavailable, Pa.R.E. 804(b)(1) allows for the admission of former testimony, which provides: Testimony given as a witness at another hearing of the same or Section 5947(e) of the Judicial Code, or criminal contempt pursuant to Section 5947(f). -4- CP-21-CR-2672-2008 a different proceeding, or in a deposition taken in compliance with law in if the party against whom the course of the same or another proceeding, the testimony is now offered, or, in a civil action or proceeding, a had an adequate opportunity and similar predecessor in interest, motive to develop the testimony by direct, cross, or redirect examination. (Emphasis added.) Fenerty’s recorded oral statement to Officer Cotton could not be admitted as substantive evidence under this Rule which would allow for the introduction of the witness’s prior testimony from a preliminary hearing if the defense had a full and fair Commonwealth v. Smith, supra. opportunity to cross-examine the witness. Pa.R.E. 803.1 with the heading “Hearsay exceptions; testimony of declarant necessary,” provides: The following statements, as hereinafter defined, are not excluded if the declarant testified at the trial or hearing and by the hearsay rule is subject to cross-examination concerning the statement : Inconsistent statement of witness. A statement by a declarant that is inconsistent with the declarant’s testimony, and (a) was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (b) is a writing signed and adopted by the declarant, or (c) is a verbatim contemporaneous recording of an oral statement. (Emphasis added.) Fenerty’s recorded oral statement could not be admitted as substantive evidence under this Rule because she did not testify at trial during which she was subject to meaningful cross-examination. Upon reflection, it was error to allow the Commonwealth to admit into evidence Theresa Fenerty’s recorded out-of-court statement. This was not harmless error because the statement, which linked defendant to the stolen vehicle, was prejudicial to -5- CP-21-CR-2672-2008 him. “Wisdom too often never comes, and so one ought not to reject it merely because 5 it comes late.” If defendant, pursuant to Pa.R.Crim.P. 720(B)(a)(iv), had filed a post- sentence motion seeking a new trial, we would have granted the relief. Because this case is on a direct appeal from the judgment of sentence, we can only indicate that we believe that the admission of Theresa Fenerty’s recorded oral statement into evidence was prejudicial error that warrants a reversal of the judgment of sentence and the grant of a new trial. (Date) Edgar B. Bayley, J. John Dailey, Esquire For the Commonwealth Dirk E. Berry, Esquire For Defendant :sal __________ 5 Henslee v. Union Planters Bank, Justice Felix Frankfurter dissenting in 335 U.S. 595 (1949). -6-