Commonwealth v. Laich

Following a jury trial, Appellant Scott A. Laich was found guilty of two counts of first degree murder for the killing of his estranged girlfriend, Krista Jill Omatick, and John Eric Pistininzi on July 29, 1996. For the reasons that follow, we reverse Appellant’s judgment of sentence and remand for a new trial.

Appellant and Omatick had been engaged in a relationship for approximately two years and were living together up until the week before the killings. On the evening of July 28,1996,

Appellant, who had been attempting to reconcile with Omatick, drove past her apartment and noticed that a light was on inside. He drove to a pay phone and called her and asked if he could come over to see her. Omatick declined, telling him that she was tired and was going back to sleep. Appellant continued to drive around the area of Omatick’s apartment, ultimately deciding to get out of the car and approach the apartment to “see what was going on there.” (N.T., 8/6/97, at 424.) As Appellant got out of the car, he retrieved a .40 caliber handgun. Upon approaching the apartment, he heard what he believed to be Omatick and a man engaged in sexual relations. At that point, according to Appellant, he “just snapped.” (N.T., 8/6/97, at 425.) He forced his way into the apartment and fatally shot Omatick, who was naked, as she came down the stairs. Appellant proceeded upstairs toward the bedroom, fired a shot through the bedroom door, kicked open the door, and fatally shot Pistininzi. Appellant drove to his father’s home where he called 911 and reported the crimes. The state police arrived and transported Appellant to the police barracks were he subsequently gave a statement detailing the crimes.

At trial, Appellant’s defense was not that he did not perform the killings, but rather, that he was not guilty of first-degree murder. Appellant contended that he was guilty only of voluntary manslaughter because he acted in the heat of passion after hearing what he believed to be Omatick engaged in sexual relations with another man. The jury nonetheless convicted Appellant of two counts of first-degree murder and Appellant was subsequently sentenced to two consecutive life sentences. On appeal, the Superior Court affirmed Appellant’s judgment of sentence.

At issue in this appeal is whether the trial court erred in admitting the testimony of Connie White, a Commonwealth witness, regarding statements Omatick made to her approximately one week prior to the shootings. During her testimony, White stated that she had the following conversation with Omatick:

Q: And what did she [Omatick] say that he [Appellant] said to her?

A: She said that he said if he couldn’t have her, if — that if he ever caught her with another man, that he would kill them both.

(N.T., 8/7/97, at 553-54.)

Prior to trial, Appellant filed a motion in limine seeking to exclude White’s testimony regarding her conversation with Omatick on hearsay grounds. The trial court ruled that White’s testimony containing Omatick’s hearsay statement was admissible because it was relevant to show Omatick’s state of mind regarding her relationship with Appellant. (N.T., 8/4/97, at 71-72.) In his brief to this Court, Appellant contends that the trial court abused its discretion in admitting White’s testimony because Omatick’s state of mind regarding her relationship with Appellant was irrelevant in light of his defense that he committed the crimes in the heat of passion. We agree.

Questions concerning the admissibility of evidence are within the sound discretion of the trial court, and this Court will not reverse the trial court’s decision absent an abuse of that discretion. Commonwealth v. Chmiel, 558 Pa. 478, 738 A.2d 406, 414 (1999), cert. denied, 528 U.S. 1131, 120 S.Ct. 970, 145 L.Ed.2d 841 (2000). Hearsay is an out-of-court statement offered to prove the truth of the matter asserted in the statement. Commonwealth v. Puksar, 559 Pa. 358, 740 A.2d 219, 225 (1999), cert. denied, 531 U.S. 829, 121 S.Ct. 79, 148 L.Ed.2d 42 (2000). An out-of-court declaration containing another out-of-court declaration is double hearsay. Chmiel, 738 A.2d at 417. “In order for double hearsay to be admissible, the reliability and trustworthiness of each declarant must be independently established. This requirement is satisfied when each statement comes within an exception to the hearsay rule.” Id. (citation omitted).

Here, White’s testimony contained double hearsay because it relayed Appellant’s out-of-court statement through Omatick’s out-of-court statement. Appellant’s statement to Omatick is not barred by the hearsay rule because a defendant’s out-of-court statements fall within the party admission exception to the hearsay rule. Commonwealth v. Smith, 518 Pa. 15, 540 A.2d 246, 257 (1988). The issue in this case, therefore, is whether Omatick’s statement to White satisfied the hearsay rule. Both the trial court and the Superior Court found that Omatick’s statements to White met the state of mind exception to the hearsay rule and were therefore admissible.

Pursuant to the state of mind hearsay exception, where a declarant’s out-of-court statements demonstrate her state of mind, are made in a natural manner, and are material and relevant, they are admissible pursuant to the exception. Commonwealth v. Collins, 550 Pa. 46, 703 A.2d 418 (1997)(citing Commonwealth v. Riggins, 478 Pa. 222, 386 A.2d 520, 525 (1978), cert. denied, 525 U.S. 1015, 119 S.Ct. 538, 142 L.Ed.2d 447 (1998)). Out-of-court declarations that fall within the state of mind hearsay exception are still subject to general evidentiary rules governing competency and relevancy. Commonwealth v. Auker, 545 Pa. 521, 681 A.2d 1305, 1319 (1996). Accordingly, whatever purpose the statement is offered for, be it to show the declarant’s intention, familiarity, or sanity, that purpose must be a “factor in issue,” that is, relevant. Commonwealth v. Wright, 455 Pa. 480, 317 A.2d 271, 274 (1974). Evidence is relevant if it logically tends to establish a material fact in the case, if it tends to make a fact at issue more or less probable, or if it supports a reasonable inference or presumption regarding the existence of a material fact. Commonwealth v. Johnson, 556 Pa. 216, 727 A.2d 1089, 1102 (1999), cert. denied, 528 U.S. 1163, 120 S.Ct. 1180, 145 L.Ed.2d 1087 (2000).

In the instant matter, both the trial court and the Superior Court found that Omatick’s statement to White satisfied the state of mind exception to the hearsay rule because it evidenced Omatick’s state of mind regarding her relationship with Appellant. We find, however, that the trial court erred in admitting White’s testimony because Omatick’s state of mind regarding her relationship with Appellant was irrelevant in this case.

Appellant’s defense at trial was based upon the theory that he was guilty of voluntary manslaughter, a lesser degree of homicide than first-degree murder. Murder of the first degree is an “intentional killing,” which is defined, in part, as a “willful, deliberate, and premeditated killing.” 18 Pa.C.S. § 2502(a), (d). However, “if at the time of the killing [the defendant] is acting under a sudden and intense passion resulting from serious provocation[,]” the defendant is guilty of voluntary manslaughter. 18 Pa.C.S. § 2503(a). In both crimes, the actor commits the act with the intent to kill. However, the difference between first-degree murder and voluntary manslaughter is whether the actor committed the killings under a “sudden and intense passion resulting from serious provocation.” This 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. McCusker, 448 Pa. 382, 292 A.2d 286, 289 n. 4 (1972)(citing Commonwealth v. Colandro, 231 Pa. 343, 80 A. 571 (1911)).

In Commonwealth v. Thornton, 494 Pa. 260, 431 A.2d 248 (1981), we addressed the relevancy of a homicide victim’s state of mind as it related to the defendant’s defense of provocation. The defendant, Thornton, was convicted of first-degree murder following his shooting of the victim. Thornton admitted killing the victim and relied upon theories of self-defense and provocation. At trial, a witness testified that the victim told the witness that he carried a gun because “the Thornton brothers were after him.” Id. at 250-51. On appeal, Thornton asserted that the victim’s statement was inadmissible hearsay. The Commonwealth argued in response that the victim’s out-of-court statement met the state of mind exception and was relevant because it established that the victim was fearful of Thornton. Id. at 251. In rejecting the Commonwealth’s contention, we held that, “the victim’s state of mind was not a matter in issue in the case. It was [Thornton’s] state of mind, not that of the victim, which was material to establish the degree of guilt, if any, of the charge of criminal homicide.” Id.

Here, as in Thornton, what Omatick believed about the state of her relationship with Appellant was completely irrelevant to Appellant’s degree of guilt. Appellant admitted killing Omatick and Pistininzi, but argued that he had only done so with provocation. In light of Appellant’s defense, it was Appellant’s state of mind at the time of the killings that was relevant as to whether he committed the crimes with premeditation or whether, as he claims, he was acting with a “sudden and intense passion resulting from serious provocation.” Contrary to what the lower courts concluded, Omatick’s state of mind regarding her relationship with Appellant was simply not relevant given Appellant’s defense. Accordingly, even if the trial court properly found that the state of mind exception had been met, it still erred in allowing White to testify to Omatick’s out-of-court statement regarding Appellant’s out-of-court statement because such testimony was not relevant to the case.

The Commonwealth argues, however, that even if White’s testimony containing the hearsay was erroneously admitted, the error was harmless beyond a reasonable doubt. Again, we disagree.

It is well established that an error is harmless only if we are convinced beyond a reasonable doubt that there is no reasonable possibility that the error could have contributed to the verdict. Commonwealth v. Ardestani, 558 Pa. 191, 736 A.2d 552, 556 (1999). The Commonwealth bears the burden of establishing the harmlessness of the error. Id. This burden is satisfied when the Commonwealth is able to show that: (1) the error did not prejudice the defendant or the prejudice was de minimis; or (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial affect of the error so insignificant by comparison that the error could not have contributed to the verdict. Id. at 556-57.

The Commonwealth first contends that White’s testimony regarding her conversation with Omatick was merely cumulative of other, properly admitted evidence of the deteriorating relationship between Omatick and Appellant. The Commonwealth’s contention, however, is without merit. Since it was Appellant’s state of mind that was at issue, the key inquiry is whether there was properly admitted cumulative evidence of Appellant’s statement to Omatick that he would kill her if he caught her with another man. The Commonwealth has not pointed to, nor has our review of the record revealed, any such evidence.

The Commonwealth also argues that properly admitted and uncontradicted evidence overwhelmingly established Appellant’s guilt. In support of its argument, the Commonwealth cites to Thornton, where we held that the erroneously admitted hearsay statement of the victim was harmless error. The Thornton decision, however, is distinguishable from the instant matter. In Thornton, the defendant, Thornton, argued that he was only guilty of voluntary manslaughter because he acted in self-defense and out of provocation in killing the victim after learning that the victim had physically attacked his mother and sister with a baseball bat. We held that based upon the overwhelming evidence that the killing was intentional, the improper admission of the victim’s statement that “the Thornton brothers were after him” was harmless. Thornton, 431 A.2d at 252. Specifically, we noted that three to four hours elapsed from the time Thornton learned of the beatings until he killed the victim, that he looked for the victim in two different areas, and that Thornton’s companion also shot the victim. Id. We also observed that the only evidence supporting Thornton’s claim was his own testimony that he was “upset” when he learned of the attacks on his family and that he thought the victim was trying to draw a weapon when Thornton shot him. Id.

The facts of the instant case are distinguishable. First, the evidence indicates that Appellant acted almost immediately, not hours later, upon hearing what he believed to be Omatick engaged in sexual relations. Second, there is no conclusive evidence that Appellant knew or believed that Omatick was in a relationship with another man or engaged in sexual relations when he approached the apartment. Finally, evidence of provocation came not only from Appellant’s statements immediately following the killings, but also from the observations of both the state police and Appellant’s father. Based upon these factual distinctions, Thornton, as it relates to the issue of harmless error, is not controlling in the instant case.

After reviewing the record, we are not convinced beyond a reasonable doubt that the erroneous admission of Appellant’s statement could not have contributed to the jury’s verdict. Accordingly, Appellant’s judgment of sentence is reversed and jurisdiction is relinquished.

Mr. Justice CAST1LLE files a dissenting opinion.

Madame Justice NEWMAN did not participate in the consideration or decision of this case.

. 18 Pa.C.S. § 2502(a).

. The only evidence regarding Appellant’s actions at the apartment on July 28-29, 1996, aside from the police investigation at the crime scene, was Appellant’s statements to the police and his father, and the statements contained in his 911 call shortly after the killings.

. Omatick's statement is only relevant when it is considered for its substantive truth — -that Appellant told her that he would kill her and anyone with whom she was involved. However, accepting her statement for its substantive truth removes it from the state of mind hearsay exception, making it inadmissible. See Thornton, 431 A.2d at 251(vic-tim’s declaration that the defendant was after him only relevant if considered for its substantive truth; however, when considered for its substantive truth, the declaration is inadmissible hearsay because it no longer meets any hearsay exception).

. Contrary to the dissent’s contention, Omatick's out-of-court statement is not admissible pursuant to the forfeiture by wrongdoing hearsay exception. See Pa.R.E. 804(b)(6)("A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.'') It is clear from the language of the exception that the exception only applies when a party’s wrongdoing is done with the intention of making the declarant unavailable to testify as a witness. See 30B Charles Alan Wright &. Arthur R. Miller, Federal Practice and Procedure § 7078 (Interim ED.)(“Rule 804(b)(6) is an attempt to respond to the problem of witness intimidation[.]”) If a party’s wrongdoing was for another purpose, e.g., killing the declarant based upon personal animosity, the exception does not apply. The dissent’s reliance on a line of federal cases applying the federal forfeiture by wrongdoing exception, which is identical to Pennsylvania’s exception, is misplaced since those cases involved wrongdoing that was intended to prevent a declarant from testifying. None of the cases applied the exception in circumstances where the wrongdoing was not intended to procure a declarant’s unavailability for trial, such as in the instant case.

. The Commonwealth presented evidence that White overheard Appellant and Omatick arguing prior to his moving out of Omatick's apartment, that Omatick removed Appellant’s clothing from the apartment, and that Appellant actually moved out of the apartment.

. The Commonwealth notes that Appellant parked his vehicle in a secluded area, walked up to the apartment with a loaded handgun, broke into the apartment, shot the victims, fled the scene, and did not call for help or assistance.