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HomeMy WebLinkAboutCP-21-CR-0002605-2009 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : RICKY L. MILLER, JR. : CP-21-CR-2605-2009 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Masland, J., February 12, 2013:-- Defendant, Ricky L. Miller, appeals his conviction for First Degree Murder and subsequent judgment of sentence of life imprisonment without the possibility of parole following a degree of guilt hearing adjudicated by the undersigned. Defendant complains of the following errors on appeal: 1. The court erred in determining that the Commonwealth presented sufficient evidence to convict the Defendant of Murder in the First Degree. Specifically, the court erred in determining that the [D]efendant had not acted in the heat of passion at the time of the killing and therefore, was guilty of voluntary manslaughter and not first degree murder. In the alternative, the court erred in not finding the [D]efendant actually believed, but unreasonably so, that deadly force was necessary in the instant case, and therefore, was guilty of voluntary manslaughter and not first degree murder. 2. The court erred in determining that the death penalty statute is constitutional both on its face and as applied in this case under both the U.S. and Pennsylvania Constitutions. The [D]efendant avers that the Commonwealth’s notice of intent to seek the unconstitutional death penalty in this case operated to deprive him of his constitutional right to a trial by jury. Concise Statement of the Errors Complained of on Appeal, filed November 1, 2012. CP-21-CR-2605-2009 I. Facts Our recitation of the facts derived from 665 pages of testimony and argument is necessarily abbreviated. Perhaps, the relatively narrow issue facing the court, namely the Defendant’s state of mind, would justify a briefer review. But, given the gravity of that question, just as experienced counsel ably argued an array of issues, we are compelled to provide slightly more texture to the canvass than may be needed by this Honorable Court. We do so, in part, because our readers extend beyond the halls of justice. Thus, we note that no one involved is undeserving of some sympathy, including the Defendant. Conversely, many may feel a sense of regret or fault. Indeed, all of the parties are perfectly flawed, including the Court. But, no one should wring their hands and wonder “if only I had ….” Let there be no question that no matter the actions of any third parties, the murder of Kenneth Geiger might have been forestalled for a fortnight at best – the Defendant would have committed this dreadful act sooner or later. Despite his attempts to deflect the blame, the ultimate fault and punishment must be borne by the Defendant alone. We trust that the following will make that manifest. The sad facts of this case arise from the breakdown of the marriage between the Defendant and his now ex-wife, Ashley Murray. Prior to the events giving rise to the Defendant’s murder of Kenneth Geiger, the Defendant described a happy home life with his wife and three young children where he supported the family with his own heating and air conditioning installation business. However, as time went by, and initially unbeknownst to the Defendant, -2- CP-21-CR-2605-2009 his wife began reconnecting with a former boyfriend over Facebook, namely the victim, Kenneth Geiger. Over time, the Defendant began to be suspicious of his wife’s late night computer activity. Around this same time, the family’s main vehicle began to have severe mechanical problems. The issue of replacing the vehicle caused significant friction between the Defendant and his wife. He testified that his wife wanted to purchase an expensive Volvo SUV while he thought they should purchase a significantly less expensive vehicle. They had a heated argument 1 about this issue. Despite the Defendant’s opposition to the purchase, his wife went on her 2 own and purchased the Volvo. At this point, the Defendant explained: I was just kind of shocked. She financed the whole thing, no money down. That was kind of the straw that broke the camel’s back, you know. After all this talk about separating and stuff, you know, I was, like, well, you need to, you know, go to your parents’, and 3 that’s what she did. And so, in an act of “tough love,” the Defendant kicked his wife out of their home. He justified his decision on the basis that he was the sole breadwinner and completely in charge of the family’s finances and thus had to demonstrate to his 4 wife how foolish her decision had been. Although the Defendant was aware that his wife had been in a romantic relationship with the victim prior to their marriage, at the time of their separation, 1 N.T. vol. III at 486. 2 N.T. vol. III at 486. 3 N.T. vol. III at 486. 4 N.T. vol. III at 486. -3- CP-21-CR-2605-2009 5 the Defendant was unaware his wife had rekindled the relationship. However, two days after he kicked her out of the house, the Defendant’s wife disclosed to 6 him that she had been talking with the victim off and on for some time. Upon hearing this information, the Defendant became distraught and felt betrayed. He 7 testified, “I about hit the floor there because that was a shocker.” He further 8 explained, “that kind of cut into me pretty badly too.” In the weeks that followed, the Defendant was so distressed he had 9 difficulty working and even eating. At this time he began an investigation into the relationship between his wife and the victim using Facebook and the 10 internet. The first step in his investigation was to contact the victim’s estranged 11 wife, Kristen Geiger. In their conversations, she characterized the victim as an 12 abusive alcoholic. The Defendant also ran online background checks on the 13 victim and learned of his extensive criminal record. When the Defendant learned of the extent of the romantic relationship between his wife and the victim, his anger escalated. He began harassing and 14 threatening the victim via email and text message. His threats also made frequent mention of guns and shooting, including an ominous warning that “there 15 was going to be brains everywhere and that [the victim] was a dead man.” 5 N.T. vol. III at 488. 6 N.T. vol. III at 489. 7 N.T. vol. III at 489. 8 N.T. vol. III at 489. 9 N.T. vol. III at 490. 10 N.T. vol. III at 491. 11 N.T. vol. III at 491. 12 N.T. vol. III at 493. 13 N.T. vol. III at 493. 14 N.T. vol. I at 34. 15 N.T. vol. I at 34. -4- CP-21-CR-2605-2009 16 In addition, the Defendant stalked the victim at his home and workplace. He even went so far as to rent a vehicle in an attempt to conceal his identity during the stalking and engaged in a high speed chase between the victim’s 17 home and his workplace. We found the Defendant’s lengthy explanation of this event, which occurred four days before the shooting, to be simultaneously self- 18 serving and disturbing. The Defendant may not have been “trying to be a crazy 19 stalker,” but by sleeping overnight in the rental car at the victim’s workplace and by lying in wait at the victim’s residence, he failed to convince the court otherwise. Despite Defendant’s text to Kristen Geiger, we are unconvinced by his explanation that he merely wanted “to walk up to him so bad, shake his hand 20 and introduce myself to him.” Not surprisingly, the victim found this episode disturbing as well and immediately notified the police, who, in turn, contacted the 21 Defendant before he had arrived home in Lancaster. The Defendant’s erratic behavior included further references to “hollow bullets” that make “brains go boom,” which frightened Ms. Murray to the point that she removed a handgun and a clip from their home in an attempt to prevent 22 the Defendant from doing something rash. Ultimately, when the Defendant discovered the victim’s letters to Ms. Murray, detailing a much longer relationship than he had previously been aware of, he burned all of the family photographs, 16 N.T. vol. I at 71. 17 N.T. vol. I at 70. 18 N.T. vol. III at 567-574. 19 N.T. vol. III at 570. 20 N.T. vol. III at 508. 21 N.T. vol. III at 515. 22 N.T. vol. I at 72. -5- CP-21-CR-2605-2009 23 including wedding pictures and pictures of the couple’s children. In response, Ms. Murray sought and received a Temporary Protection From Abuse order 24 against the Defendant on July 21, 2009. The Defendant was not served with the order, but was apprised of its existence by Ms. Murray and received a certified letter from the Lancaster County Sheriff on July 22, 2009, advising him 25 to turn in his concealed weapons permit. In light of the Defendant’s erratic behavior, threats, and harassment, Ms. Murray and the victim reached out to the police. Although the Defendant claimed to be scared and threatened by the victim’s “gangsta talk,” he never sought the assistance of the police. Conversely, in response to the Defendant’s question, “Is this a threat,” it was the victim who replied, “Not at all. We will take the proper 26 legal steps to take care of your threats and to keep Ashley and the kids safe.” In fact, following conversations with the police, the victim personally sent an email to Officer Nulty of the Hampden Township Police Department detailing his concerns about the Defendant. The email read: Ashley informed me that you were to be speaking with Ricky Miller tonight about our situation, and I would just like to know what the situation is because he is still dropping threats to her about me. The last one yesterday was that he would be in the area tonight since it’s hunting season on Creekbend Drive, my street, and then gave a detailed description of me, including address, height, weight, eye color, hair color, et cetera. He is deranged and it makes everyone very uneasy. 23 N.T. vol. I at 82. 24 N.T. vol. I at 136, Defense Exhibit No. 1. 25 N.T. vol. III at 507, Commonwealth Exhibit No. 52. 26 N.T. vol. I at 36, Commonwealth Exhibit No. 9. -6- CP-21-CR-2605-2009 Officer Nulty, I really just want this situation to stop however that has to happen. The constant threats of violence are taking a toll on Ashley big time to where she is scared for me. Personally I am not scared of the man at all, but the possibility of him shooting me makes me very uneasy, and no one should have to live this way. I don’t know what needs to happen. But if you can, please give me a call and let me know. That would be very much appreciated. 27 Thank you for your help. (emphasis added) The victim sent this email the day before he was murdered by the Defendant on Creekbend Drive. Officer Nulty met with the Defendant on the day he received the email from the victim. During this meeting, Officer Nulty warned the Defendant he 28 would be arrested if he did not cease harassing the victim. The Defendant acknowledged the warning and assured Officer Nulty he would no longer contact the victim. At the time, the officer was not completely convinced by the Defendant, adding an eerie postscript to his report “I have no doubt there will be 29 more to follow.” On the day of the murder, Ms. Murray and the victim spent the evening 30 bowling with her children. After bowling, the group returned to the victim’s home where he was going to teach Ms. Murray how to make homemade 31 vegetable soup. When they pulled into the cul-de-sac adjacent to the victim’s 32 home around 11:00 p.m., they found Defendant waiting in his vehicle. After Ms. Murray parked her vehicle, the Defendant pulled around to park his vehicle 27 N.T. vol. I at 38. 28 N.T. vol. I at 210. 29 N.T. vol. I at 213. 30 N.T. vol. I at 46. 31 N.T. vol. I at 50. 32 N.T. vol. I at 53. -7- CP-21-CR-2605-2009 33 adjacent to her vehicle. Then, the Defendant exited his vehicle and 34 approached Ms. Murray’s vehicle. Unbeknownst, to Ms. Murray or the victim, 35 the Defendant possessed a loaded Glock pistol. As the Defendant approached the vehicle, the victim began to exit the 36 vehicle to confront the Defendant, perhaps to diffuse the situation. However, before the victim had an opportunity to exit the vehicle, the Defendant raised the pistol, reached into the vehicle past Ms. Murray on the driver’s side, and shot the 37 victim in the head, killing him. Immediately after killing the victim, the Defendant said to Ms. Murray, “I told you never to fuck with me you fuckin’ 38 bitch.” Despite the Defendant’s testimony to the contrary, we find no credible evidence of provocation that would have warranted a bullet to the back of the head. There was no stare down remotely approaching a shootout at high noon. Rather, from the totality of the evidence, we are convinced that the testimony of the forensic pathologist, Dr. Samuel Land, is accurate -- the victim was either 39 “trying to get out of the car or trying to flinch and avoid the gunshot.” In either case, Kenny Geiger presented no threat to the Defendant. At trial, the Defendant testified on his own behalf, claiming that the victim had been pointing a gun at him from the passenger’s side of the vehicle. In support of this assertion, the Defendant noted that Ms. Murray had previously 33 N.T. vol. I at 58. 34 N.T. vol. I at 59. 35 N.T. vol. I at 61. 36 N.T. vol. I at 60. 37 N.T. vol. I at 61. 38 N.T. vol. I at 68-69. 39 N.T. vol. I at 16. -8- CP-21-CR-2605-2009 removed one of the Defendant’s pistols from their home. The suggestion being, that Ms. Murray armed the victim, who himself owned no guns. However, no weapon was recovered from the crime scene and the Defendant’s self-serving 40 testimony was not credible. 41 After the shooting, the Defendant fled and Ms. Murray called 911. Officer Nulty was on duty that night and upon hearing the report of a shooting at Creekbend Drive, exclaimed “he fucking shot him,” as his concerns about the 42 Defendant were grimly confirmed. He was the first to respond to the scene of the crime where he discovered the victim slumped down in the passenger seat of 43 Ms. Murray’s vehicle, dead. II. Sufficiency of the Evidence In reviewing the sufficiency of the evidence, the court must determine whether the evidence at trial, and all reasonable inferences derived therefrom, viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to establish all the elements of first-degree murder beyond a reasonable doubt. Commonwealth v. Thomas, 54 A.3d 332, 335 (Pa. 2012). 40 We are compelled to reference the brief but beleaguered testimony of the saddest victim in this case, Gavin Miller, the parties’ oldest son. Begrudgingly, we permitted the Defendant to pursue his “Hail Mary” pass attempt through the purported statement in June 2011of his then seven-year-old son that he had seen another gun at the scene two years earlier. The fact that this statement came while Gavin was visiting his father’s parents, is not insignificant. Nevertheless, we do not question Defense counsel’s attempted use of this statement – indeed, she had no choice. However, we fear that the trauma Gavin experienced in a total of twenty minutes of testimony (N.T. vol. II at 292-301 and 332-340), plus the trauma of the shooting itself, will leave scars that make a life sentence without the possibility of parole seem merciful. Ultimately, neither his statement in 2011 nor his in camera testimony were of assistance to the court. In short, his ability to observe, remember and relate the events he witnessed as a five-year-old late at night in a dark and chaotic setting was less than reliable. 41 N.T. vol. I at 66. 42 N.T. vol. I at 214. 43 N.T. vol. I at 215. -9- CP-21-CR-2605-2009 To establish first degree murder, the Commonwealth must prove: (1) a human being was unlawfully killed; (2) the defendant was responsible for the killing; and (3) the defendant acted with malice and a specific intent to kill. 18 Pa.C.S. § 2502(a). First degree murder is an intentional killing, a “willful, deliberate and premeditated killing.” 18 Pa.C.S. § 2502(a) and (d). Specific intent to kill as well as malice can be inferred from the use of a deadly weapon upon a vital part of the victim's body. Thomas, 54 A.3d at 335. Here, as part of a negotiated partial guilty plea, the Defendant admitted he was responsible for the unlawful killing of the victim. As for the third element, the court, sitting as fact-finder, inferred malice and specific intent to kill from the Defendant’s shooting a gun at the victim’s head at close range. See Commonwealth v. Bedford, 50 A.3d 707, 712 (Pa. Super. 2012) (holding evidence showed defendant acted with specific intent to kill where he shot his victim in head, which is vital part of human body). The Defendant’s malice was also abundantly illustrated by his statement to Ms. Murray immediately following the shooting as well as his statements throughout the record that are almost too numerous to mention. We offer a handful as illustrative of the whole: 1. To Constable Michael Ward when inquiring about the victim’s fate – “He should be dead. I shot him with 44 a .45 Glock from like a foot or something.” 2. To the police in the hospital – “It was him or me pretty much. That’s the way I looked at it.” 3. To Kenny Geiger – “It’s hunting season on 45 Creekbend Drive.” 44 N.T. vol. I at 189. 45 N.T. vol. I at 38. -10- CP-21-CR-2605-2009 4. To Kimberly Murray, mother of Ashley, he related “his plan was to kill Kenny and himself in front of Ashley so that she would have to live with that for the 46 rest of her life.” 5. To the Gobbler’s Knob Hunting Camp – “all I did was protected my kids and myself when I shot that motherfucker in the head. Self-defense one hundred percent. Believe what you read or what. I don’t give a flying fuck. I was there, you weren’t and I would do 47 the same thing again so help me God.” The latter excerpt is particularly illustrative. The Defendant’s willingness to “lash back” at his camping buddies reveals a calloused attitude that overshadows any self-serving assertion of self-defense. Despite the Defendant’s protestations, in light of the overwhelming direct and circumstantial evidence, his 48 use of the term “dead man,” is no longer a mere “figure of speech.” To the contrary, his bravado was not only pervasive and threatening, but was also indicative of his specific, fully-formed intent to kill. That genesis of his intent existed at least as early as July 22, 2009 when he laid in wait for the victim the first time, and it matured to the point of fruition on Creekbend Road on July 26, 2009. The Defendant contends that he should only be guilty of voluntary manslaughter as his actions were committed “in the heat of passion.” The court disagrees. Our Crimes Code provides: A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by: 46 N.T. vol. II at 324. Although the Defendant and his uncle denied any statements about his “plan,” one of the Defendant’s closest friends allowed that the Defendant had expressed a desire to kill the victim several times. Hence, we find Mrs. Murray’s testimony about a “plan” to be amply corroborated and credible. 47 N.T. vol. III at 592-593, Commonwealth Exhibit No. 40. 48 N.T. vol. III at 591 -11- CP-21-CR-2605-2009 (1) the individual killed; or (2) another whom the actor endeavors to kill, but he negligently or accidentally causes the death of the individual killed. 18 Pa.C.S. § 2503 (emphasis added). Out Supreme Court has defined “passion” as: [A]nger and terror provided they reach a degree of intensity sufficient to obscure temporarily the reason of the person affected.... Passion, as used in a charge defining manslaughter ... means any of the emotions of the mind known as anger, rage, sudden resentment or terror, rendering the mind incapable of cool reflection.... Commonwealth v. Laich, 777 A.2d 1057, 1061 (Pa. 2001). The sufficiency of the victim’s provocation is determined by an objective test: “whether a reasonable man who was confronted with the provoking events would become impassioned to the extent that his mind was incapable of cool reflection.” Commonwealth v. Hutchinson, 25 A.3d 277, 314-15 (Pa. 2011). Based on the credible evidence presented at trial, the court concluded that the Defendant did not kill the victim in the heat of passion. While anger and even rage may be reasonable reactions to the deterioration of your marriage, it is obviously unreasonable to allow such an event to provoke you to kill your estranged wife’s boyfriend. Also, here, the Defendant had ample cooling off time while he laid in wait, armed, near the victim’s residence. This case involved an abundance of ill-conceived and over-heated passion, but the Defendant prepared for and committed this crime with carefully premeditated coolness. -12- CP-21-CR-2605-2009 The Defendant argues in the alternative that he killed the victim under the mistaken belief that he was justified in doing so. Our Crimes Code provides: A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 of this title, but his belief is unreasonable. 18 Pa.C.S. § 2503. This defense relates to the Defendant’s testimony that he believed the victim was pointing a gun at him from the passenger’s side seat of Ms. Murray’s vehicle. The court, sitting as fact-finder, found the Defendant’s testimony to be self-serving and not credible. We cannot contort our mind in a manner that lends any credibility to Defendant’s purported state of contortion. His description of diving, twisting and falling before, amazingly, shooting the victim squarely in the back of the head is chimerical. Further, his actions prior to the killing belie his contention that he was waiting for the victim on Creekbend Drive with any intent other than to kill. In sum, the Commonwealth presented ample credible evidence to support this court’s verdict that the Defendant was guilty of First Degree Murder and the evidence the Defendant presented to mitigate his crime to voluntary manslaughter was not credible. III. Constitutional Challenge The Defendant next contends the Pennsylvania Death Penalty Statute is unconstitutional and that the Commonwealth’s Notice of Intent to seek the death penalty deprived him of his right to a jury trial. -13- CP-21-CR-2605-2009 As any other statute, Pennsylvania's death penalty law enjoys a presumption of constitutionality and can be declared unconstitutional only “if it clearly, palpably and plainly violates the Constitution.” Erfer v. Commonwealth, 794 A.2d 325, 331 (Pa. 2002). Our death penalty statute has survived numerous previous constitutional challenges, and both the United States Supreme Court and the Pennsylvania Supreme Court have upheld its constitutionality under federal and state law. See Blystone v. Pennsylvania, 494 U.S. 299, 308-309, (1990); Commonwealth v. Fisher, 681 A.2d 130, 146 (Pa. 1996). In light of this binding precedent, Defendant's contention lacks merit. The Defendant’s argument regarding the Commonwealth’s Notice of Intent to seek the death penalty also lacks merit. At the outset of the prosecution, when the Commonwealth informed the Defendant that it would seek the death penalty, all the proper steps were taken as detailed here. In a capital case, the Commonwealth possesses the initial discretion whether to seek the death penalty. Commonwealth v. Buck, 709 A.2d 892, 896 (Pa. 1998). This discretion, though broad, is not unlimited. Id. Specifically, such a prosecution must be supported by a Notice of Aggravating Circumstances at the time of the Defendant's arraignment. Pa.R.Crim.P. 802. If the notice "includes at least one aggravating factor that is supported by any evidence, the case is properly framed as a capital case." Buck, 709 A.2d at 896. Here, the Commonwealth contended, "[i]n the commission of the offense the [D]efendant knowingly created a grave risk of death to another person in addition to the victim of the offense." See Notice of Aggravating Circumstances, -14- CP-21-CR-2605-2009 April 15, 2010; 42 Pa.C.S. §9711(d)(7). Specifically, the Commonwealth asserted that the Defendant "used a deadly weapon (a 9mm Glock handgun) on a vital part of the victim's body (his brain) and shot into an enclosed space within inches of four other people including the [D]efendant's estranged wife and three small children." Commonwealth's Ans. to Def.'s Omnibus Pretrial Motion at ¶7. Further, on direct appeal of capital convictions, our Supreme Court has found sufficient evidence of this aggravating factor even when the endangered bystander is not directly in the line of fire, stating: The potential for an errant, ricochet or pass-through bullet can create the requisite risk. Commonwealth v. Smith, 518 Pa. 15, 45, 540 A.2d 246, 260 (1988). In Commonwealth v. Watson, 523 Pa. 51, 565 A.2d 132 (1989), we found that the defendant knowingly created a grave risk of death to another when he fired into a closet where he knew a child was hiding, although the child escaped injury. Similarly, in Commonwealth v. Griffin, 511 Pa. 553, 515 A.2d 865 (1986), we found that the defendant knowingly created a grave risk of death to others when he shot the victim in the head at close range during a party, although no one else was injured. Commonwealth v. Rios, 684 A.2d 1025, 1037 (Pa. 1996) (emphasis added) (internal quotation marks omitted). Accordingly, by presenting that evidence, the Commonwealth carried its burden to establish at least one aggravating factor permitting it to move forward with a capital case. As such, the Defendant was not denied his right to a jury trial when the Commonwealth agreed to remove the “threat” of the Death Penalty to negotiate the Defendant’s guilty plea and subsequent degree of guilt hearing before the undersigned rather than a jury. -15- CP-21-CR-2605-2009 Finally, the court conducted a lengthy guilty plea colloquy with the Defendant to ensure he was waiving his right to a jury trial in a knowing, intelligent and voluntary manner – something he did with experienced counsel at his side. IV. Conclusion In sum, the evidence of the Defendant’s guilt of first degree murder was overwhelming, and the Commonwealth’s notice of intent to seek the death penalty did not violate the Defendant’s rights under the United States or Pennsylvania Constitutions. Therefore, the Superior Court should affirm this court’s verdict and judgment of sentence in all respects. By the Court, Albert H. Masland, J. Matthew Smith, Esquire Assistant District Attorney Linda Hollinger, Esquire For Defendant :sal -16-