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Lesko v. Owens

filed: July 27, 1989.


On Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Civil Action No. 86-1238.

Stapleton, Scirica and Cowen, Circuit Judges.

Author: Scirica


SCIRICA, Circuit Judge

The Commonwealth of Pennsylvania appeals the district court's grant of a writ of habeas corpus. The question presented is whether the introduction of "other crimes" testimony deprived petitioner John Lesko of his Fourteenth Amendment right to a fair trial. We will reverse the judgment of the district court and remand for determination of other claims raised by petitioner.


In the early hours of January 3, 1980, John Lesko, Michael Travaglia and Richard Rutherford were cruising the outskirts of the city of Pittsburgh in a stolen sports car. The trio drove past police officer Leonard Miller, sitting in his patrol car parked at the side of the road outside the Stop-and-Go convenience store. Travaglia, the driver of the car, stated that he "wanted to have some fun with this cop." Travaglia raced past the officer's car beeping his horn, but no pursuit followed. Travaglia turned the car around, again sped past the patrol car, and again failed to elicit a response. The third time Travaglia sped past, Officer Miller turned on his lights and gave chase. Lesko turned to Rutherford in the back seat and cautioned him to "lay down in the back, because it might turn into a shooting gallery."

A moment later, Officer Miller managed to force the sports car off the side of the road. The officer approached the car on foot. Travaglia rolled down his window, extended his .38 caliber hand gun, and shot Officer Miller twice from close range. Officer Miller returned fire, shattering the passenger side of the window. The three companions sped away. The gunshot wounds Officer Miller received proved fatal.

The trio had begun their escapade together a few hours earlier, in the late evening of January 2, 1980, at a hot dog shop in Pittsburgh. At Travaglia's instruction, Lesko and Rutherford went to the alleyway behind the Edison Hotel, and waited. About ten minutes later a sports car appeared. Travaglia sat in the front seat beside the driver and owner of the car, William Nicholls, a stranger. While Lesko and Rutherford were climbing into the back seat, Travaglia pulled out a .22 caliber hand gun and shot Nicholls in the arm.

After Travaglia took the driver's seat, Lesko told Rutherford to handcuff Nicholls behind the back. As Travaglia drove, Lesko repeatedly punched Nicholls in the face and chest, calling him a queer. Lesko asked Nicholls if he wanted to perform oral sex on him, and taunted him with a knife. Meanwhile, Lesko took Nicholls's belongings, a wallet and an extra set of keys, and told Rutherford to place them in the glove compartment. After Nicholls lost consciousness, Rutherford and Lesko gagged him with a scarf. Travaglia stopped the car near a lake in a wooded area. Lesko propped Nicholls against a nearby tree, his hands cuffed, his mouth gagged, and his feet bound with a belt. Travaglia and Lesko dragged Nicholls down to the lake and rolled him into the water, where he disappeared.

The three men drove to Travaglia's father's house, where Travaglia knew his father kept a gun. Lesko and Rutherford waited in the car while Travaglia entered the house. Travaglia returned with a .38 caliber handgun, which he handed to Lesko. Upon inspection, Lesko discovered that it contained only bird shot. Travaglia, who had begun driving away, turned the car around and returned to his father's house. Travaglia instructed Rutherford to retrieve the box of bullets lying in the trunk of car parked inside the garage. Lesko stood guard outside. Armed with the gun that had wounded Nicholls, Lesko warned Rutherford that if anything went wrong, Rutherford "had six shots to get out." Rutherford returned with the box of bullets, and the trio drove off. It was these bullets that killed Officer Miller.

After the Miller shooting, Lesko and Travaglia returned to Pittsburgh. At the hot dog shop they met a friend, Keith Montgomery, whom they took to a room in the Edison Hotel and told about the Miller shooting. Travaglia told Montgomery, "I shot a cop." Lesko added, "I wanted to." Travaglia then gave Montgomery the .38 caliber gun used to shoot Officer Miller. When the Pittsburgh police found Montgomery with that same gun later that evening, Montgomery told the police how he had gotten the gun, and that it had been used to shoot a policeman. Lesko and Travaglia were arrested that night. Before surrendering, Lesko pointed a gun at the police.

After receiving Miranda warnings, Lesko and Travaglia each gave statements admitting involvement in the killing of Officer Miller. Lesko told the police that he and Travaglia had instigated the car chase with Officer Miller, "So he'd be chasing us . . . and the car was fast and that -- we'd lose him and could go and knock off the Stop-N-Go." In contrast, Travaglia told the police that he was "playing around with [Officer Miller], trying to aggravate him, and I figured he couldn't chase me across county lines; and since he did, I figured if I pointed the gun at him and told him to throw his gun away, he couldn't stop me and I could keep on going. In the process of pulling the gun on him, the hammer slipped and the shot discharged." Lesko and Travaglia also admitted killing William Nicholls. Additionally, they both implicated themselves in two other shooting murders -- that of Peter Levato and Marlene Sue Newcomer -- committed within the last three days.

In January, 1981, Travaglia and Lesko were tried jointly for the Miller homicide. There had been two changes in venue and a change in venire. Although the trial was held in Westmoreland County, Western Pennsylvania, the jury was selected in Berks County, located in the eastern part of the state. By that time, Travaglia and Lesko had already pled guilty to second degree murder in Indiana County for the Nicholls homicide. For the Miller shooting, both men were charged with first degree murder, Lesko as an accomplice to the principal Travaglia, and for criminal conspiracy to commit murder. They were both convicted of first degree murder and sentenced to death.

At trial, Lesko and Travaglia's sole defense to the charge of first degree murder was that they each lacked the requisite intent to kill. Lesko's counsel argued principally that his client was at most guilty of felony-murder.*fn1 He argued that in instigating the police chase, defendants planned first to divert the officer from the Stop-and-Go store, and later return to rob the establishment. Therefore, Lesko's lawyer urged, the killing was not pre-meditated, but was the unintended result of a botched robbery attempt. Travaglia's lawyer, meanwhile, emphasized that pulling the trigger had been accidental, a result of the hammer of the gun having slipped as Travaglia aimed at the officer.*fn2 Neither defendant testified at the guilt phase of the trial. However, statements they made in their taped confessions to the police, which the Commonwealth introduced into evidence, were relied on by defense counsel in support of their respective defense theories.

Rutherford was the Commonwealth's principal witness at trial. Rutherford testified about the Miller homicide*fn3 and the abduction and killing of Nicholls. Both Lesko and Travaglia objected to Rutherford's testimony of the Nicholls murder. Initially, both defendants moved to exclude all reference to the Nicholls murder, contending that its sole purpose was to demonstrate defendants' bad character and propensity to commit similar crimes.

The trial judge permitted Rutherford's testimony to prove motive and state of mind. He stated that he was admitting the evidence because it was probative of the Commonwealth's theory that the officer was not killed as a result of an accident, but was killed because he had approached perpetrators of theft and murder in possession of incriminating evidence, namely, Nicholls' stolen car and wallet, and the gun used to shoot Nicholls in the arm when he was first abducted. Both defendants thereafter moved to limit Rutherford's testimony on the Nicholls' murder to establishing only that the car was stolen, Nicholls was murdered, and they possessed items linking them to these prior crimes when Officer Miller approached the car. The trial judge denied the motion, ruling that the details of the Nicholls murder were relevant to petitioner's state of mind. The court explained that the severity of the Nicholls murder, and its temporal proximity, made it more likely than not that the defendants would attempt to avoid apprehension at any cost, going so far as to murder a police officer.

After determining that the evidence was admissible to prove motive or intent, the trial judge balanced the testimony's probative value against its potential for prejudice, as Pennsylvania law requires. He concluded that the former outweighed the latter, as the testimony reduced the possibility that the killing of Miller was done without intent, or by accident, and could prove essential in establishing the degree of murder. He therefore allowed the jury to hear Rutherford's full account of the Nicholls homicide.

Defense counsel did not request an immediate limiting instruction to the jury. During the jury charge, the judge instructed the jury that they were to use Rutherford's testimony only for the limited purpose of "tending to show [a] motive for the killing [of Officer Miller] . . . and [thereby] . . . rebutting . . . the allegation that the shooting was accidental." In addition, the trial judge issued the following warning:

You must not regard this evidence [of the Nicholls murder] as showing that the defendants are persons of bad character or criminal tendencies which [sic] you might be inclined to infer guilt. If you find the defendants or either of them guilty, it must be because you are convinced by the evidence that he or they committed the crimes charged and not because you believe he or they are wicked or have committed other offenses.

As we have stated, the jury found Lesko and Travaglia guilty of murder in the first degree and of criminal conspiracy to commit murder. At the sentencing phase it returned a verdict of death for both defendants.*fn4 Lesko appealed his conviction and death sentence directly to the Pennsylvania Supreme Court.*fn5 That court rejected all sixteen issues raised by petitioner and his co-defendant on appeal, including the argument that the death sentences were disproportionate and excessive. The court affirmed the convictions and death sentences. Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (Pa. 1983); Commonwealth v. Lesko, 502 Pa. 511, 467 A.2d 307 (Pa. 1983). Thereafter, the United States Supreme Court denied Lesko's writ of certiorari. Lesko v. Pennsylvania, 467 U.S. 1256, 82 L. Ed. 2d 850, 104 S. Ct. 3547 (1984), reh'g denied, 468 U.S. 1226, 82 L. Ed. 2d 920, 105 S. Ct. 27 (1984). Lesko's petition under Pennsylvania's Post Conviction Hearing Act, 42 Pa. Cons Stat. Ann. §§ 9541-9551 (Purdon 1982), was denied by the Common Pleas Court and also on appeal. Commonwealth v. Lesko, 509 Pa. 67, 501 A.2d 200 (Pa. 1985). In the post-conviction appeal, the Pennsylvania Supreme Court again rejected Lesko's argument that the death sentence was disproportionate. Id. at 78-79, 501 A.2d at 206. Lesko's request for rehearing before the Pennsylvania Supreme Court was denied. 509 Pa. 625, 506 A2d 897 (Pa. 1986). Thereafter, the United States Supreme Court denied Lesko's second petition for writ of certiorari. Pennsylvania v. Lesko, 479 U.S. 1101, 94 L. Ed. 2d 179, 107 S. Ct. 1328 (1987).

While Lesko's petition for certiorari was pending, he filed a petition for writ of habeas corpus in the United States District Court pursuant to 28 U.S.C. § 2254 (1982), contending that errors undermined his trial, conviction, and sentence.*fn6 Finding that Lesko had exhausted his state court remedies, the district court determined that his due process rights were violated and granted relief. Lesko v. Jeffes, 689 F. Supp. 508, 509 (W.D.Pa. 1988).

The district court found that the admission of Rutherford's testimony recounting the Nicholls killing was error of constitutional magnitude. The court ruled that while it would have been permissible to admit evidence that Nicholls had been killed, that his car had been stolen, and that the car and other property belonging to Nicholls was in the possession of the defendants, the probative value of any further details was "non-existent" and the potential for prejudice severe. Id. at 515. Noting that no cautionary instruction prefaced the Rutherford testimony, the district court found that the limiting instruction in the judge's jury charge "could not have remedied the prejudice created by the admission of the evidence." Id. The district court then subjected the constitutional violation it had found to harmless-error analysis.*fn7 The district court stated that it could not find beyond a reasonable doubt that the details of the Nicholls' murder played no role in the jury's deliberations, specifically, concerning the degree of guilt. Id. at 516. As a final matter, the district court concluded that even assuming arguendo the inevitability of a conviction of first degree murder, it could not find beyond a reasonable doubt that the details of the Nicholls murder did not influence the jury during the penalty phase to return a verdict of death. Id.


A state prisoner must exhaust available state remedies before filing a petition for habeas corpus in federal court. 28 U.S.C. §§ 2254(b) & (c) (1982); Ross v. Petsock, 868 F.2d 639 (3d Cir. 1989). Though not a jurisdictional requirement, the exhaustion rule is more than a mere formality; it serves the interest of comity between the federal and state systems. Castille v. Peoples, 489 U.S. 346, 103 L. Ed. 2d 380, 109 S. Ct. 1056, 1059 (1989); Gibson v. Scheidemantel, 805 F.2d 135 (3d Cir. 1986). To demonstrate compliance with the exhaustion requirement, a habeas applicant must show that the claim included in the federal petition was fairly presented to the state courts. Castille v. Peoples, 109 S. Ct. at 1060; Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971). This requires that the claim brought in federal court be the substantial equivalent of that presented to the state courts. Id. at 278. Both the legal theory and the facts supporting a federal claim must have been submitted to the state courts. Ross v. Petsock, 868 F.2d at 641; Gibson v. Scheidemantel, 805 F.2d at 139.

We conclude that petitioner has exhausted his state court remedies. On direct appeal to the Supreme Court of Pennsylvania, petitioner argued that the trial court had erred in admitting Rutherford's testimony because its probative value was outweighed by its prejudicial effect. The Pennsylvania Supreme Court, after finding that the details of the Miller homicide, as developed by Rutherford's testimony, were relevant to prove defendants' motive and state of mind, held that "while the possibility of prejudice existed, it was heavily outweighed by the probative value of Rutherford's testimony." Travaglia, 502 Pa. at 492, 467 A.2d at 297. Lesko's federal petition for writ of habeas corpus alleges that the probative value of Rutherford's testimony was outweighed by its prejudicial effect, and therefore its admission was erroneous. The legal theory (the probative value of evidence was outweighed by its prejudicial effect) and the facts (the substance of Rutherford's testimony) on which Lesko's federal claim rests, had been submitted to the state courts. Thus, the issue decided by the Pennsylvania Supreme Court was the substantial equivalent of Lesko's fourteenth amendment claim. See McMahon v. Fulcomer, 821 F.2d 934, 941 (3d Cir. 1987) (petitioner's claim that trial judge improperly required him to act as his own counsel was substantial equivalent of his sixth amendment claim).


Our review of the district court decision to grant the writ is plenary. We derive this standard from the function of a reviewing court in a habeas corpus proceeding. Federal courts "do not sit to retry state cases de novo but, rather, to review for violations of federal constitutional standards." Milton v. Wainwright, 407 U.S. 371, 377, 33 L. Ed. 2d 1, 92 S. Ct. 2174 (1972); see also United States ex rel. Abdus-Sabur v. Cuyler, 653 F.2d 828, 833-34 (3d Cir.) (in banc), cert. denied, 454 U.S. 1088, 70 L. Ed. 2d 625, 102 S. Ct. 650 (1981); Bisaccia v. Attorney Gen. of New Jersey, 623 F.2d 307, 312 (3d Cir.), cert. denied, 449 U.S. 1042, 101 S. Ct. 622, 66 L. Ed. 2d 504 (1980). Accordingly, petitioner claims that the admission of inflammatory evidence violated his fourteenth amendment right to a fair trial. The district court found such a violation. Thus, in examining the district court opinion, we evaluate whether the district court correctly found that admission of evidence amounted to error of constitutional proportion. Whether an error reaches the magnitude of a constitutional violation is an issue of law, subject to plenary review. See Sullivan v. Cuyler, 723 F.2d 1077, 1082 (3d Cir. 1983).

In arguing that the district court's decision should receive the "clearly erroneous" standard of review, petitioner misunderstands our holdings in Sullivan, 723 F.2d 1077, and Krasnov v. Dinan, 465 F.2d 1298 (3d Cir. 1972). Although in Sullivan we subjected a portion of a district court decision in a habeas corpus proceeding to the "clearly erroneous" standard of review, we did so because the district court had ordered an evidentiary hearing, and made subsequent factual findings as to whether there was an actual conflict of interest in representation of a criminal defendant. Sullivan, 723 F.2d at 1082, 1083. The standard of review enunciated in Krasnov, meanwhile, is completely inapposite; Krasnov concerns a district court's finding of facts as to the existence of diversity jurisdiction.*fn8


The Commonwealth initially argues that in finding that the probative value of Rutherford's testimony was "non-existent," the district court "exceeded its authority in a habeas proceeding." From the well-established principle that states have broad discretion to develop rules of evidence they will apply in their criminal proceedings, the Commonwealth contends that because the Pennsylvania Supreme Court has already held Rutherford's testimony relevant to prove motive and intent, the district court was "bound to accept the determination of relevance made under state laws and apply the due process balance to determine if that relevance was outweighed by the prejudicial impact of the statement."

We do not believe that the district court exceeded the scope of its authority in a habeas corpus proceeding. Clearly, at the heart of petitioner's complaint is a challenge to a state court evidentiary ruling. Yet this court, along with other federal courts of appeals, has recognized that the erroneous admission of evidence that is relevant, but excessively inflammatory, might rise to the level of a constitutional violation. See, e.g., United States ex rel. Mertz v. New Jersey, 423 F.2d 537, 539-40 (3d Cir. 1970); Dudley v. Duckworth, 854 F.2d 967, 972 (7th Cir. 1988), cert. denied 490 U.S. 1011, 57 U.S.L.W. 3654, 104 L. Ed. 2d 169, 109 S. Ct. 1655 (1989); Walker v. Engle, 703 F.2d 959, 968 (6th Cir.), cert. denied sub nom. Marshall v. Walker, 464 U.S. 951, 78 L. Ed. 2d 327, 104 S. Ct. 367 (1983); Osbourne v. Wainwright, 720 F.2d at 1237, 1239 (11th Cir. 1983) (per curiam); Panzavecchia v. Wainwright, 658 F.2d 337, 341-42 (5th Cir. 1981). Accordingly, a reviewing court must examine the relative probative and prejudicial value of evidence to determine whether its admission violated defendant's right to a fair trial. In this case, the district court explained that it was reviewing for constitutional error, not errors in state law, and thus examined the testimony's probative worth to assess the constitutional implications of the state court's ruling. See 689 F. Supp. at 513.

We point out, however, that just as "[not] every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a 'failure to observe that fundamental fairness essential to the very concept of justice,'" United States ex rel. Perry v. Mulligan, 544 F.2d 674 (3d Cir. 1976)(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642, 40 L. Ed. 2d 431, 94 S. Ct. 1868 (1974)), cert. denied, 430 U.S. 972, 97 S. Ct. 1659, 52 L. Ed. 2d 365 (1977), not every error in balancing probative value against prejudicial effect "[amounts] to error which rises to constitutional dimensions." See United States ex rel. Mertz v. New Jersey, 423 F.2d at 539-40. In Bisaccia v. Attorney Gen. of New Jersey, 623 F.2d 307 (3d Cir.), cert. denied 449 U.S. 1042, 101 S. Ct. 622, 66 L. Ed. 2d 504 (1980), we identified at what point such an error in balancing might be cognizable in a habeas proceeding:

When it must be said that the probative value of such evidence, though relevant, is greatly outweighed by the prejudice to the accused from its admission, then use of such evidence by a state may rise to the posture of fundamental fairness and due process of law.

623 F.2d at 313 (quoting United States ex rel. Bibbs v. Twomey, 506 F.2d 1220, 1223 (7th Cir. 1974)). Accord Osborne v. Wainwright, 720 F.2d 1237, 1239 (11th Cir. 1983) (per curiam) (error in balancing must be of "such magnitude" as to deny fundamental fairness); United States ex rel. Palmer v. DeRobertis, 738 F.2d 168, 171 (7th Cir.) (when probative value of evidence is "greatly outweighed" by the prejudice to the accused, then use of such evidence may "rise to the posture of the denial of fundamental due process"); Thompson v. Oklahoma, 487 U.S. 815, 108 S. Ct. 2687, 2722, 101 L. Ed. 2d 702 (1988) (Scalia, J., dissenting) (addressing issue not reached by majority opinion). Therefore, only if the inflammatory nature of Rutherford's testimony so plainly exceeds its evidentiary worth, will we find that a constitutional error has been made.

Additionally, we note that in evaluating the decisions of our own federal trial courts (over which we have supervisory power and therefore are obligated to correct erroneous interpretations of the Federal Rules of Evidence), we have cautioned that "if judicial self-restraint is ever desirable, it is when a Rule 403 analysis [balancing probative and prejudicial effect] of a trial court is reviewed by an appellate tribunal." United States v. Scarfo, 850 F.2d 1015, 1019 (3d Cir.), cert. denied 488 U.S. 910, 109 S. Ct. 263, 102 L. Ed. 2d 251 (1988). The reason for this deference is apparent:

Like any balancing test, the . . . standard is inexact, requiring sensitivity on the part of the trial court to the subtleties of the particular situation, and considerable deference to the hands-on judgment of the trial judge.

United States v. Guerrero, 803 F.2d 783, 785 (3d Cir. 1986).

In sum, our scope of review in this case is limited. We inquire whether the evidence's probative value is so conspicuously outweighed by its inflammatory content, so as to violate a defendant's constitutional right to a fair trial. Moreover, we will accord the state trial judge the deference we accord our federal trial judges, who are in a unique position to assess the relative probative value and inflammatory effect of proffered testimony.


We now turn to petitioner's claims of unfair prejudice. For clarity, we note what is not at issue here. In his habeas corpus petition, Lesko claims that any mention of the Nicholls murder was inadmissible, as irrelevant and unduly prejudicial. The district court, however, rejected this argument, ruling that,

The killing of Officer Miller . . . could be seen to be consistent with an attempt to avoid apprehension. Had the trial court limited the testimony of Rutherford, as requested by petitioner's counsel, excluding the details of the torture-murder of Nichols [sic], the Court would be unwilling to conclude that a fair trial had been denied.

689 F. Supp. at 515. Thus, the issue in this appeal is whether Rutherford's account of the Nicholls incident was relevant to either motive or intent, and whether its prejudicial effect so conspicuously exceeds its evidentiary worth as to violate the federal constitution.

Under Pennsylvania law, while evidence of other unrelated criminal conduct of the accused is generally inadmissible to prove the commission of the crime, such evidence is admissible where relevant to prove: (1) motive, (2) intent, (3) a common scheme or plan involving the commission of two or more crimes so closely related that proof of one tends to prove the other, (4) the identity of the perpetrator, or (5) the absence of mistake or accident. Commonwealth v. Styles, 494 Pa. 524, 525-26, 431 A.2d 978, 980 (Pa. 1981). In addition, "other crimes" evidence, though relevant, must be excluded if the probative value is outweighed by the danger that the facts offered may unduly arouse the jury's prejudice or hostility. Commonwealth v. Travaglia, 502 Pa. at 492, 467 A.2d at 297. Applying this law to Rutherford's testimony, the Pennsylvania Supreme Court held that "the details of the incidents which occurred just a short time prior to Officer Miller's shooting were developed to show that the Appellants . . . were in a stolen car, with the victim Nicholls' personal belongings and two firearms which could connect them to the prior wrongdoing," and therefore introduced to show motive and intent. Id. at 493, 467 A.2d at 297. In addition, the court held that their probative value outweighed their prejudicial effect. Id. at 492, 467 A.2d at 297.

Each court that has examined the facts of this case, including the district court, has held that evidence of the occurrence of the Nicholls killing was relevant to proving intent. As in all homicide cases, the jury's perception of state of mind of Lesko and Travaglia at the time of killing determined the degree of murder. To establish Lesko's accomplice culpability for first degree murder, the Commonwealth was required to prove that petitioner, with the intent of promoting or facilitating the commission of first degree murder, aided, agreed, or attempted to aid Travaglia in planning or committing the murder of Officer Miller.*fn9 In addition, the defenses raised by Lesko (felony murder rather than premeditated homicide) and Travaglia (accidental rather than intentional shooting), compelled the Commonwealth to introduce evidence demonstrating that Lesko and Travaglia intended to kill Officer Miller, and that they had motives to do so. It is generally recognized that evidence of motive may be probative of specific intent, particularly for crimes that are allegedly motivated by the desire to interfere with law enforcement. See E. Cleary, McCormick on Evidence § 190 at 562-63 & n. 35 (3d ed. 1984). Thus, one means of proving Lesko's intent to promote or facilitate Travaglia's act of murder, is to establish that Lesko, like Travaglia, had a motive to kill. In sum, proof of Lesko's state of mind, and, consequently, any motive he might have had to kill Office Miller, were genuinely at issue in the case.

We find that just as the occurrence of the Nicholls murder was relevant, the Nicholls incident as a whole was relevant to a central issue in the case -- the motive and state of mind of Lesko and Travaglia. As we have discussed, the Commonwealth sought to demonstrate that both the trigger-man Travaglia and passenger Lesko, if approached by a law enforcement officer, intended to go to any length to hide the facts of their prior crime and, moreover, had motive to take such a drastic approach. Where the motive of a killing is interference with law enforcement -- in this case the most extreme example, killing a policeman -- the severity and circumstances of the crime being hidden is highly probative. If, for example, the Nicholls killing had been accidental, or in self-defense, Lesko arguably would have been less likely to take such extreme measures to avoid apprehension. On the other hand, apprehension and prosecution for a murder as deliberate as the Nicholls homicide, could have dire consequences in the event of a conviction. Furthermore, Rutherford's account of the events leading to the Miller homicide conveys the temporal proximity of the Nicholls homicide, which reinforces the Commonwealth's theory that the Nicholls murder figured prominently in defendants' minds as Officer Miller approached the stolen sports car.*fn10

As we have already suggested, Rutherford's testimony is also probative to rebut Lesko's defense regarding his state of mind during the Miller incident. First, by stressing that the incident was best characterized as "felony murder," Lesko was essentially urging the jury to believe that while he admittedly agreed to instigate the car chase, he had no knowledge from the surrounding circumstances that the chase would culminate in murder, and played no role in promoting such an outcome. During his summation, Lesko's counsel argued that Lesko's remark that "this place might turn into a shooting gallery" was "the statement of any would-be robber in a car driven by a man with a gun. . . ." In other words, Lesko was asserting that he had participated in a crime -- but that crime was attempted burglary or robbery, not first degree murder. To view the Miller incident in isolation would render Lesko's claim plausible. On the other hand, Lesko's assertion that in the moments before the Miller killing, he had promoted only the commission of robbery and burglary (but not murder) appears less credible if one learns that just a few hours before, both he and Travaglia had deliberately and fully participated in the Nicholls homicide. In this context, this evidence was probative to show that in participating in the instigation of the police chase and through his talk about a "shooting gallery," Lesko shared Travaglia's intent to open fire and encouraged Travaglia to do so.*fn11

In a second and related aspect of his defense, Lesko portrayed himself as a passive observer of Travaglia's allegedly unilateral decision to open fire on Officer Miller. Lesko's lawyer argued in summation that "John Lesko was sitting in the car as Ricky Rutherford was. . . . He was a passenger. He didn't shoot Officer Miller. Ricky Rutherford didn't shoot Officer Miller. Mike Travaglia shot Officer Miller." Similarly, during summation, Lesko's lawyer read from Lesko's statement to the police, in which Lesko explained that, "[the officer] put on his lights and started chasing us. The police officer went down, and that there. I heard six shots come through the window beside me, and when I looked up, it was all busted out. . . ." Thus, the in limine motion offered by defendants was sparse and, from an evidentiary point of view, sterile. The motion proposed to stipulate only that Nicholls had been killed and that Lesko ...

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