Opinion
1046 MDA 2023 J-A12022-24
10-16-2024
COMMONWEALTH OF PENNSYLVANIA v. MARIA I. SANUTTI-SPENCER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered June 29, 2023 In the Court of Common Pleas of Columbia County Criminal Division at No(s): CP-19-CR-0000754-2014
BEFORE: PANELLA, P.J.E., KING, J., and STEVENS, P.J.E. [*]
MEMORANDUM
KING, J.
Appellant, Maria I. Sanutti-Spencer, appeals from the order entered in the Columbia County Court of Common Pleas, which denied her first petition filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
This Court has previously set forth the relevant facts and some of the procedural history of this case as follows:
Appellant married Frank Spencer ("the Victim") in February 1997. Between 2006 and 2012, the Victim reported approximately twenty-five (25) to thirty-five (35) domestic incidents to the Hemlock Township police department. Police records confirm that the Victim reported that Appellant had threatened to kill him on "numerous occasions." Following one such occasion, which occurred in October 2006, the Victim filed for divorce.
On May 15, 2007, the Victim reported that Appellant threatened that her Father, Anthony Rocco Franklin ("her Father"), would kill him. Contemporaneous with this report, other testimony established that Appellant sought help from a former coworker, Lee Mix, to secure an early parole for her Father[, as Mix worked for the parole board at that time]. When Mix and Appellant were coworkers in 2005, Appellant threatened to harm the Victim. … Appellant also implied that her Father was in the Mafia. Mix informed Appellant that she could not help.
In March 2009, her Father submitted a home plan to the parole board, in which he proposed to live at a residence jointly owned by Appellant and the Victim ("Fairview Drive Residence"). Parole agent James Curry conducted the pre-parole investigation. When Curry investigated the proposed home plan, the Victim told Curry that he did not want her Father living at the Fairview Drive Residence because Appellant and the Victim were getting a divorce. Her Father's proposed home plan was denied.
In September 2009, her Father's home plan was resubmitted, proposing again to live at the jointly owned residence. Appellant indicated to the parole board investigator that she was divorced and the homeowner. Her Father's home plan was approved. However, at the time, the divorce was not final; Appellant and the Victim were subject to an interim divorce order, giving each party the right to live at the Fairview Drive Residence when it was their turn to have custody of the kids.
Between January 2010 and September 2011, police responded to and/or investigated approximately sixteen incidents specifically involving the Victim and Appellant at the Fairview Drive Residence. Appellant threatened to burn down the Victim's new house and threatened to burn down the house of the Victim's girlfriend, Julie Dent. … In January 2010, a fire occurred at the Victim's home. In August 2010, another fire burned the house of the Victim's girlfriend to the ground.
The evidence presented at trial suggested that the Victim lived in absolute fear of Appellant and her Father. The Victim was very worried that her Father was capable of
killing him and that they were threatening to kill him. The Victim "was absolutely in fear to the point where he was changing his habits so he wouldn't be going to the bank on the same day." Appellant expressed anger and hostility toward the Victim following divorce hearings, often concerning custody of their children. According to one witness, "on numerous occasions, [Appellant] would fly in the driveway and get out and there would be a screaming match that would ensue."
On June 8, 2012, a divorce decree was issued dissolving the marriage and designating the Victim as homeowner of the Fairview Drive Residence. A police officer helped the Victim compose a no-trespassing letter to Appellant (dated 6/27/2012), telling Appellant to stay off his property except when exchanging custody of their children in the driveway.
On June 30, 2012, news of the divorce appeared in the local paper. On the evening of June 30, 2012, Appellant called the Victim's cousin and warned him that if the Victim's mother moved into the Fairview Drive Residence, Appellant would burn it to the ground; Appellant threatened that "that house will be her last.... And she can join [the Victim]." The Victim's cousin immediately reported Appellant's threats to the police.
On July 3, 2012, the Victim's body was discovered shot dead in the foyer of the Fairview Drive Residence. The evidence established that the Victim was shot from a distance as he was entering the house and that no one heard from the Victim between July 1-2, 2012. The Victim was killed by two rapidly fatal gunshot wounds: one to the head and one to the left arm. The parties stipulated that the bullet recovered from the Victim's torso was from a .30 caliber class discharged rifle and the bullet recovered from his head/neck was fired from a .38, .357 caliber, or nine-millimeter class handgun. Blood splatter was found on the interior of the front-door threshold, "indicative of the door being opened when the bloodletting event occurred." Officer Sergeant Brian J. Dropinski found two shell casings near a tree with a Y shape in front of the house. Officer Dropinski testified that the tree offered support for the firing position and was within firing range of the front door. …
Corporal David Andreuzzi found yellow, cleaning gloves at the scene, one on the kitchen floor and one in the kitchen sink. A forensic expert testified that DNA samples recovered from the gloves matched the DNA profile of Appellant.
On July 23, 2014, a grand jury issued an indictment, finding probable cause to believe that Appellant and her Father engaged in a series of crimes, culminating in the Victim's murder. On July 28, 2014, Appellant was arrested and charged with [criminal homicide and related offenses]. On October 30, 2014, Appellant filed a motion for writ of habeas corpus. Following a hearing, Appellant's motion was denied. Appellant also filed an omnibus pre-trial motion, including a motion to preclude hearsay testimony. Following a hearing, the omnibus motion was denied, except the motion to preclude hearsay testimony was denied without prejudice to Appellant's ability to file motions in limine six weeks before jury selection.
In September 2015, the Commonwealth filed a motion to preclude irrelevant evidence related to Appellant's health as well as the Victim's alleged drug abuse and violent propensities. Upon consideration of Appellant's response and following a hearing, the court issued a pre-trial order precluding Appellant from introducing evidence of the Victim's alleged drug abuse and violent propensities. In addition, the court denied Appellant's motions in limine.
Following a two-week jury trial, the jury returned a guilty verdict against Appellant … on November 20, 2015[, for numerous crimes including criminal homicide, criminal solicitation to commit homicide, conspiracy, and related offenses]. On December 18, 2015, Appellant was sentenced [to life imprisonment plus an aggregate term of 250 to 696 months' imprisonment]. …Commonwealth v. Sanutti-Spencer, No. 782 MDA 2016, unpublished memorandum at 2-7 (Pa.Super. filed Jan. 11, 2018) (internal citations and footnotes omitted), cert. denied,___ U.S. ___, 139 S.Ct. 654, 202 L.Ed.2d 502 (2018). This Court affirmed Appellant's judgment of sentence on January 11, 2018, the Pennsylvania Supreme Court denied allowance of appeal on June 26, 2018, and the United States Supreme Court denied Appellant's petition for writ of certiorari on December 10, 2018. See id.
On May 20, 2019, Appellant timely filed a pro se PCRA petition. The court subsequently appointed PCRA counsel, who filed an amended PCRA petition on Appellant's behalf. The court conducted PCRA hearings on September 27, 2021, September 28, 2021, and October 20, 2021. By order dated June 28, 2023, and filed the next day, the court denied PCRA relief. Appellant timely filed a notice of appeal on July 26, 2023. On July 31, 2023, the court ordered Appellant to file a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b), which Appellant filed on August 21, 2023.
Appellant raises four issues for our review:
Was trial counsel ineffective for (1) failing to call Anthony Sanutti at trial and (2) did trial counsel render ineffective assistance for not calling Timothy Wilhelm as an expert in the Spencer home arson, and not requesting a Frye hearing to determine whether Detective Dennis Woodring's methodology was generally accepted in the field of fire investigations, specifically the concept of expectation bias?
Was trial counsel ineffective for not pursuing a timely recitation of the "no adverse inference" jury instruction and was appellate counsel ineffective for not pursuing a claim based upon the untimely "no adverse inference" jury instruction from the court?
Was trial counsel ineffective for his lack of preparation for the pretrial motions, most notably, the admission of [Victim's] statements under the state of mind exception and present sense impression by not citing any applicable case law to supplement his filings and to rebut the filings by the Commonwealth?
Was trial counsel ineffective for not objecting to the admission of [Victim's] state of mind [and allowing] certain testimony into the record that provided the majority of the indicia of guilt, including testimony from Paul Siciliano, Leo Yodock, Corey Robert Fish, James Curry, Sergeant Scott Traugh, Daniel May, George Hettler, Ron Romig, and Derk Reed?(Appellant's Brief at 2-3).
Frye v. United States, 293 F. 1013 (D.C.Cir. 1923). See also Commonwealth v. Chmiel, 662 Pa. 672, 240 A.3d 564 (2020) (explaining that Pennsylvania adheres to Frye screening test, which bars novel scientific evidence from courtroom until underlying methodology has achieved general acceptance in relevant scientific community).
"Our standard of review of [an] order granting or denying relief under the PCRA calls upon us to determine whether the determination of the PCRA court is supported by the evidence of record and is free of legal error." Commonwealth v. Parker, 249 A.3d 590, 594 (Pa.Super. 2021) (quoting Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa.Super. 2013)). "The PCRA court's factual findings are binding if the record supports them, and we review the court's legal conclusions de novo." Commonwealth v. Prater, 256 A.3d 1274, 1282 (Pa.Super. 2021), appeal denied, Pa., 268 A.3d 386 (2021). Further, where the PCRA court makes credibility determinations, we are bound by them if they are supported by the record. Commonwealth v. Mojica, 242 A.3d 949 (Pa.Super. 2020), appeal denied, 666 Pa. 290, 252 A.3d 595 (2021).
"Counsel is presumed to have rendered effective assistance." Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal denied, 663 Pa. 418, 242 A.3d 908 (2020).
[T]o establish a claim of ineffective assistance of counsel, a defendant must show, by a preponderance of the evidence, ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. The burden is on the defendant to prove all three of the following prongs: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different.Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019), appeal denied, 654 Pa. 568, 216 A.3d 1029 (2019) (internal citations and quotation marks omitted).
After a thorough review of the record, the briefs of the parties, and the applicable law, we conclude that Appellant's issues merit no relief for the reasons stated in the PCRA court's well-reasoned opinion. (See PCRA Court Opinion, filed 6/29/23, at unnumbered pp. 11-21) (finding: (issue 1) Anthony Sanutti, Jr. ("Anthony") is Appellant's brother; following Victim's murder, Anthony allegedly had conversation with his father, Mr. Franklin, wherein Mr. Franklin admitted murdering Victim; Mr. Franklin also did not indicate that Appellant was involved; at PCRA hearing, trial counsel adamantly denied being told about Anthony's conversation with Mr. Franklin; PCRA court found trial counsel credible; PCRA court further did not believe that Anthony would not have gone to police or to Appellant if Mr. Franklin had stated that Appellant was not involved in murder; as trial counsel was not informed of Mr. Franklin's alleged confession, counsel was not ineffective for failing to call Anthony as witness; regarding Appellant's claim that trial counsel was ineffective for failing to call Mr. Wilhelm, police charged Appellant with arson of Victim's home; in preparation for her trial, Appellant solicited inspection by Mr. Wilhelm; Mr. Wilhelm opined that law enforcement's conclusion that fire was arson was flawed; however, Appellant's son told trial counsel that Appellant had admitted her involvement in arson; thus, trial counsel had ethical concerns about calling Mr. Wilhelm to establish falsehood; nevertheless, trial counsel used other evidence to discredit law enforcement's report regarding arson by relying on other opinions that had determined fire was of undetermined origin; trial counsel had reasonable strategic basis for actions and was not ineffective; (issue 2) trial counsel requested "no adverse inference" jury instruction and court initially believed it had given such charge; court subsequently realized it had omitted charge, and it provided supplemental "no adverse inference" charge; jurors deliberated for another hour after supplemental charge; there was ample time for supplemental charge to sink into minds of jurors; trial counsel took appropriate actions to have charge published to jurors; further, Appellant did not suffer prejudice; thus, trial counsel was not ineffective; (issues 3-4) trial counsel was not ineffective for failing to cite to case law during motion in limine proceedings to preclude testimony concerning Victim's state of mind; prior to 2021 (post- dating Appellant's 2015 trial), there was confusion in this area of law until Supreme Court issued its decision in Commonwealth v. Fitzpatrick, 667 Pa. 447, 255 A.3d 452 (2021); trial counsel objected during motion in limine arguments to admission of testimony concerning Victim's state of mind, but court ruled against him; additionally, there was abundant, admissible testimony concerning Appellant's statements in which Appellant acknowledged threatening Victim; Appellant was not prejudiced by admission of hearsay statements regarding Victim's state of mind given overall evidence presented; thus, trial counsel was not ineffective) Accordingly, we affirm on the basis of the PCRA court's opinion.
Although Anthony initially testified at the PCRA hearing that his father said Appellant was not involved in Victim's murder, on cross-examination, Anthony admitted that his father did not expressly state that Appellant was not involved; rather, his father simply did not mention any involvement by Appellant when he confessed that he had killed Victim, and Anthony inferred from the conversation that Appellant was not involved. (See N.T. PCRA Hearing, 9/27/21, at 85-87).
See Commonwealth v. Small, 602 Pa. 425, 980 A.2d 549 (2009) (explaining that to establish ineffectiveness for failure to call witness, appellant must prove witness existed and was available to testify for defense, counsel knew or should have known witness existed, witness was willing to cooperate, and proffered testimony's absence denied appellant fair trial).
Further, trial counsel stated that he did not request a Frye hearing concerning the Commonwealth's expert, Mr. Woodring, because counsel did not find a legal basis on which to challenge that opinion. Trial counsel was aware that the expert he had retained for the defense, Mr. Wilhelm, refuted Mr. Woodring's claims, but counsel had concerns regarding Mr. Wilhelm's report where Mr. Wilhelm cited to a manual that was not in effect at the relevant time. (See N.T. PCRA Hearing, 9/28/23, at 18-19).
See Pa.R.Crim.P. 647(D) (explaining that after jury has retired to consider its verdict, additional or correctional instructions may be given by trial judge in presence of all parties).
Likewise, Appellant has failed to demonstrate how appellate counsel was ineffective for failing to raise this issue on direct appeal where the court ultimately provided the "no adverse inference" instruction in a supplemental jury instruction. Appellant cites no law to support the proposition that the court's supplemental jury charge was insufficient. Instead, Appellant relies on cases where the court failed to provide the requested "no adverse inference" instruction at all.
Appellant cites no law that states counsel is required to provide specific case citations in a pre-trial motion in limine or at a hearing on same. Additionally, we note that, notwithstanding Appellant's reference to the "present sense impression" hearsay exception in his statement of questions presented, Appellant's argument focuses only on how the challenged statements were inadmissible under the state of mind hearsay exception. As Appellant does not develop any argument concerning an analysis of the present sense impression hearsay exception, we will not discuss that exception. Further, to the extent Appellant purports to challenge trial counsel's lack of preparation in ways unrelated to the pre-trial motion in limine, those claims are not fairly suggested by Appellant's statement of questions presented. See Pa.R.A.P. 2116(a) (stating no question will be considered unless it is stated in statement of questions involved or is fairly suggested thereby).
As discussed at length in the court's opinion, Appellant relies on Fitzpatrick, supra to support her claim that the challenged statements were inadmissible. Assuming without deciding that the challenged statements were inadmissible hearsay, we agree with the PCRA court that counsel was not ineffective for failing to predict changes in the law. See Commonwealth v. Spotz, 587 Pa. 1, 896 A.2d 1191 (2006) (explaining that counsel's stewardship must be judged under existing law at time of trial and counsel cannot be deemed ineffective for failing to predict future developments or changes in law). As the Commonwealth points out, and as discussed in Fitzpatrick, there were cases that would have supported admission of testimony concerning Victim's state of mind at the time of Appellant's trial, just as there were cases that would have supported exclusion of such evidence. Further, we acknowledge this Court's decision in Commonwealth v. Brown-Cam p, No. 2328 EDA 2021 (Pa.Super. filed Oct. 31, 2022) (unpublished memorandum); see also Pa.R.A.P. 126(b) (explaining that we may rely on unpublished decisions of this Court filed after May 1, 2019 for their persuasive value). In Brown-Camp, on appeal from the denial of the appellant's PCRA petition, this Court addressed the appellant's claim that trial counsel was ineffective for failing to object to allegedly inadmissible testimony wherein the decedent had identified the appellant as his killer. This Court discussed Fitzpatrick, which was issued at the time of the PCRA proceedings in Brown-Cam p, and concluded that the PCRA court's conclusion that the appellant was not prejudiced was based on a legally erroneous analysis of Fitzpatrick as applied to the facts of the appellant's case. As the PCRA court did not conduct a hearing, this Court remanded for a PCRA hearing to afford trial counsel an opportunity to be heard as to whether he had a reasonable basis for failing to object on hearsay grounds. Upon remand, this Court directed the PCRA court to determine whether the basis counsel offers for failing to object is reasonable and whether the erroneously-admitted evidence likely affected the verdict. See Brown-Camp, supra. Here, unlike in Brown-Camp, trial counsel sought to preclude the challenged statements in a motion in limine; ultimately, trial counsel was unsuccessful in this attempt. Additionally, the court held multiple PCRA hearings in this case, after which the court ruled that Appellant failed to satisfy the second and third prongs of the ineffectiveness test. Thus, Brown-Camp is distinguishable from the facts of this case.
Order affirmed.
Judgment Entered.
IN THE COURT OF COMMON PLEAS OF COLUMBIA COUNTY, PENNSYLVANIA CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
v.
MARIA SANUTTI-SPENCER Defendant/Petitioner
No. 754 of 2014
OPINION sur POST CONVICTION RELIEF ACT PROCEEDINGS
Before the court is the Petition of Maria Spencer [hereinafter "Maria", "Defendant", or "Petitioner"] pursuant to the Pennsylvania Post Conviction Relief Act. 42 Pa.C.S.A.§9541 et. seq. Defendant was convicted by a jury of her peers on November 20, 2015 of 27 counts, including the Criminal Homicide of her ex-husband, Frank Spencer on July 1, 2012. There have been no challenges to the court's jurisdiction under the Act pursuant to the eligibility provisions set forth as follows:
§ 9543. Eligibility for relief
(a) General rule.-To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following:
(1) That the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted:
(i) currently serving a sentence of imprisonment, probation or parole for the crime;
(2) That the conviction or sentence resulted from one or more of the following:
(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(3) That the allegation of error has not been previously litigated or waived.
(4) That the failure to litigate the issue prior to or during trial, during unitary review or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.
42 Pa.C.S.A.§9543Indeed, Petitioner is currently incarcerated in the State Correctional Institution at Muncy, and pursuant to these proceedings is claiming ineffective assistance of her trial counsel.
Inasmuch as the procedural history is undisputed, we utilize the Commonwealth statement to avoid duplicity.
This case was investigated initially by the Pennsylvania State Police. It was referred to the Pennsylvania Office of Attorney General because the elected District Attorney of Columbia County, Thomas E. Leipold, represented Defendant during divorce proceedings with the decedent, Frank Spencer. The case was submitted to the Thirty-Sixth Statewide Investigating Grand Jury. On July 28, 2014, following the issuance of a presentment by the Grand Jury defendant was charged by criminal complaint with criminal homicide, criminal solicitation/criminal homicide, criminal conspiracy/criminal homicide, burglary, receiving stolen property, criminal solicitation/burglary, four counts of arson and related offenses, criminal attempt/criminal homicide, four counts of terroristic threats, and 15 counts of perjury. On August 29. 2014, after a preliminary hearing, the charges (except for two counts of terroristic threats) were held for court. On September 25, 2014, and Information charging the offenses held for court was filed. On October 30, 2014, defendant filed a petition for a writ of habeas corpus, challenging the Commonwealth's prima facie case. On December 17,2014, a hearing was held on the petition. On January 7, 2015, the Court denied the petition.
An Amended Information was fried on September 24, 2015, withdrawing three perjury counts.
On March 9, 2015, defendant filed a number of pretrial motions, which the Commonwealth answered in a consolidated response on April 17, 2015. On May 22,2015, defendant filed a Notice of Alibi Defense, and the Commonwealth filed its Reciprocal Notice of Witnesses on June 12, 2015. On June 17, 2015, a hearing was held on Defendant's pretrial motions. By order dated June 22, 2015, June 24,2015, and June 29, 2015, the Court denied each of Defendant's pretrial motions.
On June 30, 2015, the court scheduled a hearing on potential motions in limine for September 24, 2015. On September 22, 2015, the Commonwealth filed two motions in limine, including a motion seeking to exclude irrelevant evidence related to the victim's character and Defendant's health. On October 5, 2015, defendant filed two motions in limine. On November 3, 2015, the trial court granted the Commonwealth's motion in limine seeking preclusion of the relevant evidence.
A jury trial was held on November 9-15, 2015, after which Defendant was found guilty of all charges. On December 18, 2015, Defendant was sentenced to life imprisonment for Murder of the First Degree and two consecutive terms of imprisonment on other charges. No post-sentence motion was filed.
On January 11, 2016, defendant filed a notice of appeal. On March 18, 2016, that appeal was dismissed for failure to file a docketing statement, and the matter was remitted to this Court on April 27, 2016. On May 4, 2016, Defendant filed an application for relief, seeking reinstatement of the appeal, which was denied on May 6, 2016.
On May 5, 2016, defendant filed a motion in the trial court seeking leave to file an appeal nunc pro tunc, which was granted the same day. On May 12, 2016, Defendant filed another notice of appeal. On May 31, 2016, this Court directed Defendant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On June 30, 2016, defendant filed a Rule 1925(b) statement raising over 40 issues. On January 11, 2018 the Superior Court affirmed the Judgment of Sentence and relinquished jurisdiction. No. 782 MDA 2016. The Pennsylvania Supreme Court denied review. Commonwealth v. Sanutti-Spencer, 188 A. 3d 389 (Pa. 2018). The Supreme Court of the United States also denied a petition for writ of certiorari. Sanutti-Spencer v. Pennsylvania, 135 S.Ct.654 (2018).
On May 20, 2019 a timely initial pro se Post Conviction Relief Act Petition was filed by Defendant/Petitioner in the Court of Common Pleas of Columbia County. On July 31, 2019 Attorney Frank T. McCabe was appointed to represent the Defendant/Petitioner and with the filing of an Amended Petition for Postconviction Relief an evidentiary hearing to determine that trial counsel in Defendant's case was ineffective was requested. Hearings were conducted on September 27, 2021, September 28, 2021, and October 20, 2021
For simplicity and for the establishment of the context of Petitioner's point of error, we adopt the factual background as stated by Petitioner.
On the morning of July 3, 2012, the Pennsylvania State Police was called to 20 Fairview Drive, Hemlock Township, Columbia County, Pennsylvania for reported homicide. Leo Yodock reported that he found the body of Frank Spencer shot to death that the residence that morning. The Commonwealth has maintained from the beginning of this case that the shooter shot Frank Spencer from a "sniper's nest" within a wooded area across the road from the Spencer residence. The first shot pass through the left arm and through the upper side chest area which caused massive damage to his internal organs. He was also shot in the head. Both wounds were potentially fatal, as the cause of death in this case was multiple gunshot wounds and the manner of death was homicide. The main question in this case was who shot Frank Spencer and why?
The Commonwealth presented witnesses over a two-week period in November 2015. The Commonwealth's theory of the case was that the Petitioner was either an accomplice, perpetrator, or both. At various times during the trial it appeared as if the prosecution alleged the Petitioner and her father Rocco Anthony Franklin both shot Frank Spencer. On the other hand, the Commonwealth made it clear that she was also charged as an accomplice. The testimony throughout the case wavered between principal and accomplice.
The primary inculpatory testimony regarding the homicide came from Derk Reed and Brian Wawroski. Both men testified about seeing the Petitioner at a Bloomsburg Area High School football game on September 7, 2012, and hearing her make inculpatory statements regarding the homicide. The other intriguing fact about the alleged confession to Derk Reed and Brian Wawroski was that Corporal Williams was at the game within earshot of the conversation. Williams testified that he never heard the Petitioner say anything about "being present when Mr. Spencer took his last breath". However, he did say that he heard the petitioner states, "You better watch out for my dad and my uncle." Corporal Williams also testified that he did not see Brian Wawroski at the football game that night.
Pennsylvania PCRA Standards and Review
The Pennsylvania Supreme Court has long proscribed the Sixth Amendment standard for ineffectiveness of counsel promulgated by the United States Supreme Court decision in Strickland v. Washington, 466 U.S.668 (1984). A petitioner who seeks postconviction relief based upon ineffective assistance of counsel must establish that, in the circumstances of the particular case, such ineffective assistance so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place. 42 Pa.C.S.A.§9543(a)(2)(i).
The standard for evaluating a PCRA claim is a three-step process found in Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987). To have a successful ineffectiveness claim, the petitioner must establish, "the underlying legal claim had arguable merit; counsel had no reasonable basis for his action or interaction; and the petitioner suffered prejudice as a result." Id. At 975. A petitioner establishes prejudice in situations where "but for counsel's unprofessional errors, the result of the proceeding would have been different." Commonwealth v. Walker. Counsel is also presumptively effective by acting in the best interest of the client during the course of the representation. Commonwealth v. Hancharik, 633 A.2d 1074 (Pa. 1993). Consequently, the Defendant bears the burden of proving ineffective assistance of counsel. Id.
SUBSTANTIVE CLAIMS OF INEFFECTIVENESS
Failure to Call Witnesses
The standard for a postconviction claim that asserts ineffectiveness of counsel for failure to call a witness is that a petitioner must prove that the witness existed, was available to testify, counsel knew or should have known of the existence of the witness, the witness was willing to testify on behalf of the accused, and the prejudice generated by the absence of the witness amounted to denial of a fair trial. Commonwealth v Williams, 141 A.3d440 (Pa.2016). In each of the following instances, the sole issue is whether the absence of the witness generated prejudice which resulted in denial of a fair trial.
Witness: Cyrus Spencer
Petitioner focuses on three aspects of the testimony of Cyrus Spencer which, she asserts, would have benefited her case: [1] whether or not Frank Spencer feared Maria; [2] knowledge of the yellow gloves found at the scene bearing Maria's DNA; and, [3] alibi as to Maria's location at the precise time of the homicide.
The issue of Frank's fear of Maria is a significant theme in the Commonwealth's case. Certainly, statements by Frank to others that he was afraid of Maria fly in the face of the fact that there was ample testimony that Frank and Maria still cohabited at the residence where the homicide was committed on a week-about basis pursuant to a child custody order. When asked at the PCRA hearing if, from his point of view, it appeared like his dad was afraid, Cyrus testified that "No, I don't believe he was."
There are arguments pro and con as to whether Cyrus was an appropriate witness to establish this fact. On the one hand, as Cyrus was a minor child, Frank Spencer may not have wanted to share his feelings about the boy's mother solely for the purpose of maintaining family harmony. On the other hand, the type of "mortal fear" which Frank is alleged to have exhibited was not something which would have been known to her son. Petitioner finds it significant that her attorney allowed the Commonwealth to proffer testimony by a number of individuals who testified that the decedent had stated he was afraid of Defendant. Petitioner argues that this was inadmissible hearsay which denied her a fair trial and is further evidence that her attorney was ineffective. It must be noted, however, that there were a significant number of witnesses who testified regarding occasions when Defendant overtly threatened her husband. The issue was not so much whether the decedent was afraid of the Defendant, but rather was whether the decedent should have been afraid of the Defendant. There was abundant testimony from witnesses who testified as to statements made by the Defendant from which it could be established that the decedent should have been afraid of what the Defendant would do. Accordingly, we cannot conclude that trial counsel was ineffective for failure to call Cyrus as a witness regarding his belief whether his father was afraid of his mother.
The homicide occurred at Frank Spencer's home which was the location where the children had lived, and the parents alternated their residence on a week on/week off basis. Because the children were familiar with Maria's activities at the house, Cyrus was in a position to confirm that his mother often used the yellow kitchen gloves because she was allergic to some detergents. The Commonwealth, having found one of the yellow gloves on the floor next to the decedent, and having confirmed Defendant's DNA inside the glove, argued that the gloves had been used by the Defendant in the homicide. This would have placed Defendant at the scene of the crime if accepted as a fact by the jurors. Cyrus would have testified that his mother often used the gloves for cleaning, and such testimony could have weakened the inference of Defendant's presence and involvement in the homicide. The fact of Defendant's regular use of the yellow gloves was, however, the subject of testimony by other witnesses, including her mother. Accordingly the testimony of Cyrus would only have been cumulative. In fact, Defense counsel utilized this testimony in his closing argument to negate the Commonwealth's conclusion of Defendant's presence at the scene of the crime.
At the time of the PCRA hearing Cyrus, who was 14 years of age when his father was murdered, testified that on the morning of July 1,2012 he was sleeping at his grandmother's house in Selinsgrove in the same bed as his mother. He stated that he awoke around 6:00 AM, hearing his mother getting sick in the bathroom. He went back to sleep but got out of bed at about 8 o'clock or 8:30 AM. He testified that he saw his mother on the back porch, watching cartoons while wearing her pajamas. The latest time which Cyrus could have established his mother's whereabouts as being at the Selinsgrove residence was 8:40 AM. The homicide was believed to have happened at approximately that time or later. Two other adult witnesses testified extensively regarding the Defendant's activities and whereabouts on the morning of the homicide. Accordingly, the testimony of the minor child would have been cumulative to that offered by other adults.
In his testimony Attorney Hoey raised an additional concern which he believed would have been disastrous to the Defendant. Specifically, he had been briefed on the existence and contents of various tape recordings between the Defendant and her son and daughter from the jail. It appeared that Defendant was "coaching" the children as to what their testimony should be. Being aware of the tapes he was concerned that, if he called the two children as witnesses, the Commonwealth would offer the contents of the taped conversations to discredit the children's testimony. In addition, he was aware that the Defendant had told Cyrus that she had been involved in the arson of the Spencer property, and counsel was concerned this would come out before the jury in ultimate denial of a defense to that crime.
We conclude that trial counsel had a reasonable basis to elect to not have Cyrus testify. Further, the Defendant's case was not prejudiced by the lack of his testimony as the points of testimony were covered by other witnesses.
Melissa Sanutti
Melissa Sanutti, the Defendant's niece, had traveled from her home in Philadelphia to Selinsgrove to attend a family reunion on June 30, 2012, the weekend of the homicide. She remembers staying "in the house with my aunt and my cousins Cyrus and myself and Charron and Jayron and my gram." She remembered the sleeping arrangements in the house on that evening. When she woke up the next morning she remembers the Petitioner at her grandmother's house. She indicated that she found out about the death of Frank Spencer after she returned home to
Philadelphia a few days later. In his PCRA testimony Attorney Hoey confirmed that he believed Melissa had been interviewed and that she had not been called as a witness despite her presence in the courthouse if called. He was not asked why she had not been called. We note, however, that her testimony regarding the timeline and the individuals present in the Selinsgrove house on the morning of the homicide was cumulative and duplicative of that of at least two other witnesses.
We do not find that the Defendant's case was prejudiced by her failure to be called as a witness.
Frankie Spencer
The second of the two children of Frank and Marie Spencer was Frankie who, at the time of her father's death, was 10 years of age. On the evening of the homicide Frankie was staying at a friend's house and was not in a position to testify as to the whereabouts of her mother the next morning. She would, however, have been able to testify regarding her understanding as to whether her father was afraid of Defendant. Frankie was also the subject of the tape-recorded "coaching" conversations with Defendant, and more significantly was heard to have claimed that Defendant was "putting words in her mouth".
We have previously discussed at length the importance or lack of importance of "Father's fear" testimony in the overall scheme of the defense. Considering the age of the witness, the concern for having her testify in view of the tape-recorded coaching, and the cumulative nature of evidence to suggest that the decedent was not afraid of his wife, we find no error on part of defense counsel for failing to call Frankie Spencer as a witness.
An additional area of potential testimony from Frankie regarded her mother's whereabouts on the evening of the 2009 burglary. Her PCRA testimony revealed that she and her mother had shopped for a Halloween costume that evening and thereafter they were together throughout the evening until the next morning. The Defendant's whereabouts were not significant, however, because she was charged with solicitation of burglary and not the actual burglary. It is, of course, unnecessary to have an alibi for an event when the Commonwealth is charging with a solicitation for the event. Accordingly, Frankie's testimony on this point would have been irrelevant, and it was no error for counsel to forgo her testimony.
Anthony Rocco Sanutti, Jr.
Petitioner next argues that it was prejudicial error for Attorney Hoey to have failed to call Anthony Rocco Sanutti, Jr. as a witness in the trial of Petitioner, his sister. Following the murder of Frank Spencer, Anthony had a conversation with his father, Anthony Rocco Franklin, wherein Mr. Franklin admitted that he had killed Spencer. In the actual trial in which Franklin was convicted of the Spencer homicide, Anthony testified about the conversation and related that Franklin had indicated that his daughter, the Petitioner herein, was not involved. The issue of noninvolvement was not expressly stated as such, but rather was inferred from Franklin's statement that he committed the act of shooting by himself. Anthony admitted that he had not gone to the police at the time of Petitioner's trial, but rather had told Attorney Hoey prior to her trial.
At the PCRA hearing Attorney Hoey was confronted by the claim that Anthony had told him about the conversation with Anthony Rocco Franklin prior to the trial; however, Attorney Hoey denied ever having been so advised. The following exchange ensued:
Q. Did he ever reveal to you that Rocco Franklin was the perpetrator of the homicide of Frank Spencer?
A. He never told me that.
Q. He never told you that before the case?
A. Never. I have never heard that from Anthony Sanutti ever that his father was the individual -
Q. He never told you that Rocco Franklin admitted to shooting Frank?
A. He never told me that. Had he done that, I certainly would have contemplated calling him as a witness. And, counsel, can I ask you, was he called as a witness by the defense?
Q. He was - during the trial in 2015?
A. Yes.
Q. He was not called as a witness.
A. That was my understanding. I thought you represented that he was.
Q. He was called as a witness in the prosecution's case in the 2018 case?
A. For his father, right.
Q. You're aware, though, under oath that he admitted that he told you before the case or he told you that those circumstances -
A. Yeah, I don't know what his representations are. I have read your submissions and affidavits and I have had conversations with the Commonwealth attorney about all of these issues. Whether Anthony's proposed testimony was discussed during those conversations, I'm not aware. But I can tell you for sure, as I sit here today, that I'm aware that that is an allegation that Anthony Sanutti is advancing and he is suggesting somehow he told me that information prior to or during the trial of Maria Spencer.
I am aware he's stating that, I'm telling you categorically he never told me that. Had he done that, I would have conferenced that issue with my client. I certainly would have preserved it and I certainly would have had him interviewed independently by my own private investigator. Something that significant would have been handed off to my private investigator for further interview. As you know from reviewing the file we retained a private investigator, he interviewed over 18 people in the case. Some of whom were helpful and some of whom offered statements that were not consistent with what Ms. Spencer said they would say. I didn't necessarily impute that to be Ms. Spencer's lack of credibility.
I think a lot of witnesses and folks involved in this were simply apprehensive. Though some of those interviews were fruitful, some of them were, and we called some of those witnesses at trial. I can assure you that if Anthony Sanutti came to me and said his father confessed the murder to him, I would have called him as a witness or at least broached that idea with Ms. Spencer.
For the PCRA Court this boils down to a matter of credibility and context under the circumstances. It stretches believability that Anthony Sanutti would not have gone to the police with such information rather than allow his sister to be tried for the homicide. Additionally, had he told his sister, she could have discussed it with her attorney.
We conclude that trial counsel was never informed of this significant confession, and accordingly, we find no error in failing to call Anthony Sanutti, Jr.
Motion for a FRYE Hearing and Fair to Call Timothy Wilhelm
Petitioner was charged with the arson of a home along Millville Road occupied by Frank Spencer and his mother, Madeleine Spencer, in the early morning hours of January 24, 2010. The State Police Fire Marshal, Trooper Klitsch, inspected the premises on January 24 and concluded that the cause was of an undetermined origin. An additional cause and origin inspection was conducted by Alex Profka on January 25, 2010 resulting in the same conclusion, that the fire was of undetermined origin. Approximately 3 Vi years later, in conjunction with the preparation of charges against Petitioner, another cause and origin inspection was conducted by Police Detective Woodring who concluded that the fire was intentionally set. He opined that a window was broken in the rear of the structure where the fire originated. He had not, of course, visited the scene but rather based his opinion on documentary evidence supplied as well as the testimony and assistance of Madeleine Spencer.
In preparation for trial, Petitioner, through her attorney, solicited a cause and origin inspection to be conducted by an independent expert, Timothy M. Wilhelm. While concluding that the cause was undetermined, he opined that the Woodring report was flawed, not supported by facts, and speculative. In essence, he opined that Woodring's conclusions were not arrived at using industry accepted methodology. Petitioner alleges error to Attorney Hoey for failing to introduce the Wilhelm report in her defense as well as to attack the Woodring report by having a Frye hearing to determine if it consisted of unacceptable methodologies used in the industry. Ultimately, petitioner was found guilty of arson of the Spencer house following the presentation of the Woodring report.
In defense of his actions, Attorney Hoey brought an additional fact to the table. Specifically, he had been informed by Petitioner's son, Cyrus Spencer, that his mother "indicated to him that she was complicit in setting the Spencer home on fire.". Based on this fact unknown to the Commonwealth, Attorney Hoey believed he was ethically obligated not to use expert testimony to establish a falsehood.
At the same time, however, he was able to discredit the Woodring opinion of cause and origin by informing the jurors that the Pennsylvania State Police Fire Marshal [Klitsch] as well as the insurance investigator [Profka] had both opined that the fire was of undetermined origin. Coupled with the fact that Frank Spencer collected insurance proceeds from the fire, Attorney Hoey was able to argue in his closing that if there was, in fact, a cause to the fire it was Frank Spencer attempting to defraud the insurance company. Facially, this diverted the cause of fire from Petitioner; however, there were other factors outside the cause of fire which pointed to Petitioner as a possible cause.
Under the circumstances, we find no error in Attorney Hoey's strategy based both on his ethical dilemma and the fact that the Wilhelm report was unnecessary.
Failure to Read No Adverse Inference Jury Charge
Petitioner alleges ineffectiveness of counsel for failing to pursue the timely issuance of the "no adverse inference" instruction to the jurors.
During the primary charge counsel interrupted the court during his instructions to point out some matters which needed to be addressed. Specifically, Attorney Hoey noted for the Judge that he had failed to read the "no adverse inference" instruction as had been requested either through a charge conference or by written requests. The Court, however, erroneously believed that he had, in fact, read the instruction previously in his general charge. The sidebar concluded, and the court completed its charge without the "no adverse inference" charge having been issued.
Jury deliberations ensued, and the jurors were dismissed for the day with instructions to return the next day to complete their work. Late in the morning of the next day the Court again addressed the jury to supplement his instructions including both the "unanimity" instruction as well as the "no adverse inference" instruction. The jurors returned to the jury room to complete their work and returned a verdict a little over an hour after the supplemental instruction. The overwhelming majority of the time spent in deliberations did not have the benefit of the "no adverse inference" charge.
Petitioner argues that the timing of this supplemental instruction was insufficient to meet the constitutional mandate that the jurors understand that they may not adversely view the defendant for failure to testify. Attorney Hoey did timely raise the Court's failure during the general charge; however, the Judge appeared confident that he had, in fact, read the particular instruction. Apparently, upon review later that day or before the jury recommenced the next morning it was determined that the instruction was not placed upon the jury.
It's worthy of noting that the court did give the following point in the general instruction:
"Now, it is a fundamental principle of our system of criminal law that a Defendant is presumed to be innocent. The mere fact that she was arrested and charged with the crimes is not evidence of her guilt. Furthermore, a Defendant is presumed to remain innocent throughout the trial unless and until you conclude, based upon a careful and impartial consideration of the evidence, that the Commonwealth has proven her guilt beyond a reasonable doubt of the charges made against her. It is not the defendant's burden to prove that she is not guilty. Instead, it is the Commonwealth that always has the burden of proving each and every element of the crime charged, and that the defendant is guilty of those crimes beyond a reasonable doubt.
A person accused of a crime is not required to present evidence or to prove anything in her own defense. If the evidence presented fails to meet the Commonwealth burden, your verdict must be not guilty. On the other hand, if the evidence does prove beyond a reasonable doubt that the defendant is guilty of the crimes charged against her, your verdict should be guilty.
Although we acknowledge that the foregoing did not raise to the level of informing the jurors that they could not hold against the Defendant the fact that she did not testify, it is, at least, clear that they understood she did not have to testify in her own behalf. In view of the fact that the jurors deliberated for at least an hour after having received the "no adverse inference" charge, we believe there was ample time for the importance of that charge to sink in to their minds as they reviewed the work up to that point.
We find no fault with Attorney Hoey in that we believe he appropriately pursued his client's interest in having the "no adverse inference" charge published to the jurors. Additionally, albeit that the charge was not made until late in deliberations, we believe that Defendant was not materially prejudiced in this case.
Lack of Preparation for Pretrial Motions
Petitioner next argues that Attorney Hoey was unprepared for submission of, or reaction to, pretrial evidentiary motions. The most significant allegation regards the Commonwealth's utilization of hearsay testimony to establish the decedent's state of mind that he was in fear of Defendant. Essentially, witnesses were asked if Frank Spencer had stated anything to them regarding whether or not he feared the defendant. Certainly, Frank Spencer was not in the courtroom, and his statements, which were being offered to prove that he was afraid of the Defendant and that Defendant had threatened him, amounted to classic hearsay. The Commonwealth argued that the "state of mind" exception to the hearsay rule would permit such testimony to be entered into evidence for the jury's consideration. Petitioner asserts that the flaw in the Commonwealth's legal theory is that it is the state of mind of the Petitioner which matters, not the state of mind of the decedent. Numerous cases are cited by Petitioner which appear to confirm that the state of mind exception is not applicable to allow this hearsay to be presented to the jury.
Attorney Hoey had argued that the statements were inadmissible hearsay, that they violated the Confrontation Clause of the Constitution, and that they were unfairly prejudicial to the Defendant. He did not, however, cite any cases to support his position. The Court ruled against Defendant and allowed such testimony as to "state of mind" to be heard by the jurors. Defendant, in her PCRA Petition, asserts that Attorney Hoey was unprepared for the motions in limine argument because he did not supply the court with case law to support his legal position.
Petitioner correctly appoints to the treatise set forth in the form of the 52 page opinion of Commonwealth v. Fitzpatrick, 255 A. 3d 452 (Pa. 2021) which was rendered well after the Petitioner's trial. In Fitzpatrick both the trial court and the Pennsylvania Superior Court held that a decedent's statement to the effect that "If something happens to me - JOE" was admissible as an expression of her then existing state of mind under Rule 803(3). In reversing and remanding for a new trial the court analyzed there was a long-standing inconsistency on manner in which the "then existing mental, emotional or physical condition" exception to the rule was being applied.
When a party invokes one of these exceptions, a court must ascertain whether the proffered statement meets the exacting demands of the exception. This is not always an easy chore.
Fitzpatrick, at 459
The Court sets forth the three-phase analysis with the following:
Thus, to ensure clarity going forward, we set forth the general inquiry courts must undertake when contemplating the admissibility of out-of-court statements proffered to the court for admission as state of mind evidence.
First, the court must ascertain the reason that the moving party is offering the evidence. If it is not being offered for the truth of the matter asserted, it is not hearsay, and can be
admitted to demonstrate the non-truth purpose. In a jury trial, the evidence should be admitted in conjunction with a limiting jury instruction to ensure that the jury considers the evidence solely to demonstrate the speaker's mindset at the time of the utterance, and not for the truth of the words spoken. For instance, if a declarant says "I had butterflies in my stomach," when offered for the non-truth purpose, the jury can consider the statement as evidence that the declarant was anxious, but not that she actually had flying insects in her stomach.
If the statement is offered as substantive evidence for the truth of the matter asserted, the court must examine the statement more closely and make a number of preliminary rulings. First, like all evidence, the statement must be relevant. In the context of state of mind evidence, the prosecution must prove the defendant's mens rea beyond a reasonable doubt. Thus, in the typical prosecution, a victim's state of mind simply is not relevant. See Thornton, supra. There are exceptions to this general rule, including cases where the defendant has alleged self-defense, or where the defendant has challenged the manner of death, as here. Prototypically, the latter exception occurs when the defendant argues that the victim died by accident or by suicide.
Some of the cases that we characterized as "broad" in Moore ended the analysis here. Indeed, what was "broad" about the rulings in Fletcher and Stallworth was this Court's apparent belief in those cases that relevance to some overarching issue in the case alone justified admission of the evidence. As is evident from our analysis, there is much more to consider. Moore rightly redirected this Court toward a more exacting analysis.
If the statement is relevant, then the court must examine the character of the statement being proffered. If the statement is a singular expression of the declarant's state of mind, i.e., "I was sad," the court need only apply Rule 803(3). So long as the expression refers to the declarant's state of mind (or physical condition), and not to a third-party's state of mind, and so long as the statement refers to the speaker's mindset as it existed at the time the statement was made, facially it is admissible. Of course, a final ruling on the admissibility of the statement is subject to the final proviso of Rule 803(3) (excluding from admissibility ''a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will"), as well as the traditional probative value versus prejudicial impact rubric by which all evidence is assessed. See Pa.R.E. 403.
On the other hand, if the statement is not a singular purpose statement, but instead contains both a state of mind component and a "fact-bound" component, see Moore, supra, it generally is inadmissible. The reasons rendering such statements inadmissible are patent, and compelling.
As we noted in Moore, such two-part statements are only relevant if they are taken for their truth. The problem is that there are two parts to these statements, only one of which facially is admissible: the state of mind component. The factual component is not. That part, which is uttered out-of-court and also offered for the truth of the matter asserted, does not satisfy this exception to the hearsay rule, nor does it possess the same hallmarks of reliability imputed to state of mind evidence. That one aspect of a statement is admissible does not render all of a multi-part statement admissible. Quite to the contrary, both components must independently be admissible. Each aspect of the statement must satisfy a hearsay exception.
Commonwealth v. Fitzpatrick 255A.Sd452, 479-80 (Pa. 2021)
Based on the foregoing, numerous inadmissible statements were admitted as exceptions to the hearsay rule claim to be "state of mind":
[1] The Paul Siciliano statement that Frank Spencer told him that the Petitioner said, "The last person you will see will be me." The decedent's state of mind is not relevant and the dual-purpose nature of the statement violates the hearsay rule.
[2] The Leo Yodock statement that Frank Spencer said "They were threatening to kill him. They were going to kill him." Again, the decedent's state of mind is not relevant in the dual-purpose nature of the statement and violates the hearsay rule.
[3] The statement attributable to Cory Robert Fish where Frank Spencer told him on multiple occasions "Maria is going to kill me". As instructed by Fitzpatrick this dual-purpose hearsay is inadmissible for its purpose of proving the truth that Maria was going to kill him.
[4] James Curry related in his testimony that "... I received a phone call from Frank Spencer who indicated that he did not want Anthony Sanutti there, that he was in the process of getting a divorce, he owned the house, and he didn't want to reside there." This was inadmissible hearsay.
[5] Daniel May testified about threats attributable to the petitioner and her father that Frank Spencer had told him. This was inadmissible hearsay and did not qualify for the "state of mind" exception.
[6] Sgt. Traugh's testimony where Frank Spencer told him that the Petitioner threatened him and that her father or someone else would kill him was inadmissible hearsay.
[7] Ron Romig's testimony that Frank Spencer had told him "Maria had threatened to have her father or her burn his house down, murder him, torture him.". This was inadmissible hearsay which did not fit with the "state of mind" exception.
[8] Derk Reed's testimony that Frank Spencer told him that the Petitioner will have her father kill Frank is clearly an out-of-court statement by the declarant, Frank Spencer, which is being offered, in part, that Frank was killed by Petitioner's father. Again, even allowing that is also offered as a state of mind exception, the dual-purpose makes the out-of-court statement inadmissible hearsay.
While Attorney Hoey had objected during the motion in limine arguments that the foregoing statements represented inadmissible hearsay, the Court ruled against him. Facially, it would not have been meaningless for him to repeatedly object to the introduction of the "state of mind" hearsay which we have previously discussed. From a review of the Superior Court opinion on Petitioner's primary appeal, the issue of the admission of the foregoing hearsay testimony was not raised. The Superior Court, if it had been raised, would likely have found the "state of mind" exception to the hearsay rule to be applicable as it was not until Fitzpatrick when the court was reversed on this specific issue. We additionally note that the Supreme Court, in the Fitzpatrick decision, noted that the issue was one of much confusion.
Notwithstanding the instances of inadmissible hearsay, there was abundant admissible testimony from the Petitioner's own mouth where she had either threatened Frank Spencer by either her own actions or those of her father.
We do not find material fault by Attorney Hoey for failure to cite case law in his argument with the court regarding the inappropriate admission of hearsay testimony. In the overall scheme of evidence presented the Defendant was not substantially prejudiced at trial.
Excited Utterance
Another claim of ineffectiveness of Attorney Hoey regarded his failure to object to testimony from the decedent's girlfriend, Julie Dent, relating to a statement by the decedent that was admitted under the excited utterance exception to the hearsay rule. According to Dent, she met the decedent for dinner at a restaurant shortly after he received a threat from Sanutti-Spencer wherein it was alleged that Petitioner had told the decedent that "she was going to cut his hands off and cauterize them with hot tar or oil". Although Attorney Hoey objected to the testimony, he only asked that the Commonwealth be required to lay the proper foundation. Thereafter the statement was admitted for the jury's consideration.
An excited utterance is "[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused." The crucial question regarding the time lapse between the event and that statement is whether the declarant's nervous excitement continues to dominate while the declarant's reflective processes remain in place." Commonwealth v. Rivera, 238 A. 3d 482 (Pa.Super.2020). In the instant case we agree with Petitioner that the statement does not qualify as an "excited utterance" exception to the hearsay rule because it lacks evidence that the shocking event was nearly contemporaneous to the decedent's statement.
This matter was not addressed on the direct appeal to the Superior Court. The statement was only admitted over Attorney Hoey's objection, and accordingly, we cannot find ineffectiveness of counsel.
Failure to Inform of Trial Strategy
Petitioner next alleges ineffectiveness of counsel on the general basis that Attorney Hoey only met with his client three or four times prior to trial. While he is criticized for failing to remember the substance of the meetings and the matters which were discussed, we note that the trial had occurred approximately six years prior to the PCRA hearing.
Attorney Hoey defended his actions by noting that he had an assistant attorney to work with him on the case. In addition, he had hired an investigator to interview witnesses prior to trial. There were telephone conversations between Petitioner and Attorney Hoey throughout the period of trial preparation which, undoubtedly, covered some trial preparation issues. There is no yardstick with which to measure the necessary level of communication to avoid a claim of ineffectiveness of counsel.
Our independent review of the transcript as well as the closing statements indicates that, in our view, he had a meaningful strategy for the defense and was effective in his presentation at closing.
Coercion to Testify
Despite having been subject of a colloquy at trial to ascertain if she freely and understandingly wanted to waive her right to testify in her own behalf, and despite the trial court's acceptance of her statements, Petitioner now asserts that she was coerced into waving her right to testify at trial. At the PCRA hearing Attorney Hoey discussed at some length and evaluation of the pros and cons to having petitioner testified. He discussed the issue of the coaching of the two children as witnesses, the admission of her involvement in one of the arsons and his ethical dilemma to her testimony, and his concern about her cross-examination and ultimate admission of matters which he had attempted to keep from the jury.
In our view Attorney Hoey presented a meaningful argument as to why he recommended to Petitioner that she not testify. As he indicated, the ultimate decision rested with Petitioner, and it is now difficult to second-guess her thought process during trial. Her testimony could have been extremely harmful to her case and the trial strategy.
Demurrer to Specific Counts of Perjury
Petitioner next raises an ineffectiveness of counsel allegation as to trial counsel's failure to specifically demurre to the Commonwealth's charge of perjury in four specific instances. Petitioner was convicted of 12 individual counts of perjury; however, only three of the counts received a consecutive sentence two other counts while the other nine counts received sentences and current with others.
Perjury is established when an individual makes a false statement under oath in an official proceeding when the statement is material and the individual does not believe it to be true. 18 Pa.C.S.A.§4902. In any prosecution for perjury, the falsity of the statement may not be established by the uncorroborated testimony of a single witness. §4902(f). This corroboration requirement is referred to as the "two-person rule".
Petitioner asserts that the basis for the perjury count for Kathleen Yodock pertains to the petitioner "telling stories about him (Rocco Franklin) popping people in the head." Count 30 of the information states that "[t]he Defendant then testified before the grand jury and made a material statement "about shooting people in the head." Petitioner challenges the corroboration aspect in claiming that it fails to satisfy the corroborative testimony of a second witness for perjury conviction. The corroboration requirement focuses on the falsity of the statement and not whether the statement was made to two persons. Here, both Kathleen Yodock and Janet Critti testified in confirmation that Defendant spoke of her father (Rocco Franklin) popping people in the head.
Count 22 of the Information asserts that "[t]he Defendant then testified before the grand jury and made a material false statement when she denied threatening to burn down Derk Reed's home and/or denied threatening to kill Reed or to have him killed." It is asserted that "Derk Reed's testimony regarding threats made to him by the Petitioner were heard by Derk Reed only, and no extrinsic evidence of those alleged statements was entered into the record." The transcript of Derk Reed's testimony reveals that while Reed and his wife were waiting to go into a pool party there had been an altercation between Defendant and Frank Spencer. When Spencer departed Defendant said "Well, the only reason you are still alive, read, is because you haven't made me mad enough yet." This apparent threat was heard by both Reed and his wife and was reported to police officer Scott Traugh. It is unclear if the testimony was corroborated by anyone other than Derk Reed.
Count 23 of the Information sets forth a perjury count and alleging that "[t]he Defendant then testified before the grand jury and made a material false statement when she denied giving a threatening message to Robert Corey Fish." At trial Robert Fish testified that he had received a telephone call from a person he identified as Maria Sanutti who related that she had a message for him that he should give to his aunt. The message was: "If your Aunt moves into that house that I will burn it to the ground," that "that house will be her last. I am not kidding. And she can join Frank." Although the call had been made to his wife's phone, Robert picked up the phone and received the message. It is unclear as to whether his wife was able to hear the call and therefore to corroborate the statement. Nonetheless, there does not appear to be any corroboration testimony regarding this threatening fall.
Count 16 of the Information sets forth a perjury count and alleging that "[t]he Defendant then testified before the grand jury and made a material false statement when she claimed that Frank Spencer was happy that his home had burned down." Petitioner's objection to this asserted perjury count is that it is undisputed layperson opinion evidence that could never be classified as a material fact that would trigger a perjury analysis. The fact of Frank Spencer's mood regarding the house fire could easily have been viewed as positive to one individual and negative to another. On the one hand, the house and contents were destroyed by the fire; however, on the other hand, he received an insurance check in proceeds to build a new house. Further, the Defendant may truly have caught Frank in a positive mood about the event while others heard him say negative things about the event. In summary, the regarded statement is nearly impossible to corroborate as perjury.
Viewing the four above-described charges of perjury, it is Petitioner's allegation that she was prejudiced by the lack of a more specific demurrer because she was convicted of perjury on these counts despite insufficient evidence. We would agree that, in the latter three instances, the transcript fails to close the loop in corroboration of statements which were alleged to be perjured testimony.
SUMMARY AND CONCLUSIONS
This eight-day homicide trial presented numerous challenges requiring defense counsel to have a focused strategy. Clearly, the Commonwealth was able to present significant evidence from the lips of the decedent that he had been threatened by and was in fear of this Defendant or her father. Our analysis of the exception from the hearsay rule for a declarant's state of mind would indicate that defense counsel should not have allowed the decedent to come back from the grave to make statements to the jury. The Fitzpatrick case clarifies that where the out-of-court statement serves a dual purpose is most likely inadmissible.
At the same time, there was abundant testimony coming from the Defendant's own lips which would tend to convince the jury that the victim should have been afraid of the Defendant or her father. Numerous witnesses testified regarding the caustic relationship between the victim and the Defendant as a result, in part, of the protracted divorce proceedings and the victim's girlfriend. The jury, in balance, had more than enough testimony regarding the Defendant's violent propensities and outright admissions, coupled with a well-prepared circumstantial evidence case, to convict the Defendant of the key crimes charged. Our conclusion on this point is that the Defendant Was not prejudiced by counsel's ineffectiveness in keeping the hearsay testimony from the jury. While the attorney may not have been diligent in presenting case authority regarding the hearsay exception, he was still overruled by the court, and that matter was not raised on appeal following trial.
While we have been able to agree with Petitioner that errors were made by defense counsel we do not believe that they so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place. Attorney Hoey did have a viable strategy to deflect blame from his client to her father. The Commonwealth, however, had more than ample testimonial and circumstantial evidence to couple father and daughter in the crimes charged.
We enter the following order.
ORDER
AND NOW, this 28th day of June, 2023, for the reasons set forth in the accompanying Memorandum, Defendant/Petitioner's Amended Petition for Post-Conviction Relief is DENIED.
David C. Klementik, Senior Judge Specially Presiding
[*] Former Justice specially assigned to the Superior Court.