Appeal from the Judgment of Sentence entered on February 4, 2002 in the Court of Common Pleas of Cumberland County, Criminal Division, at No. 01-246.
The opinion of the court was delivered by: Mr. Justice Eakin
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.
RE-SUBMITTED: February 25, 2008
This is a direct appeal from a death sentence imposed on appellant for the first degree murder*fn1 of Leslie White, and the related crimes of kidnapping, theft by unlawful taking or disposition, unlawful restraint, abuse of corpse, and criminal conspiracy.*fn2 We affirm.
Shortly after graduating from high school, Leslie White, the victim, met appellant when she began working at the Wal-Mart photo shop in Mechanicsburg, Cumberland County. They began a romantic relationship; however, appellant was already involved in a romantic relationship with co-defendant Beth Ann Markman, and had been living with her for nearly two years.
Markman discovered e-mails between White and appellant, revealing their affair. Markman told appellant to end his relationship with White, and told several friends and co-workers she intended to "'kick [White's] ass.'" Commonwealth v. Markman, 916 A.2d 586, 593 (Pa. 2007). Markman's co-workers noticed bruising around her eyes and neck, which she attributed to fights with appellant over the e-mails. On one occasion, Markman called Wal-Mart to speak with White, which left White scared and crying. Markman also visited the store once, looking for White, but left without incident. Markman told a friend "if she ever got her hands on [White], she was going to kill her." N.T. Trial, 10/25/01, Vol. I, at 82. She told her probation officer,*fn3 Nicole Gutshall, she caught appellant cheating on her, and if she caught him cheating again, she would kill the girl.
Appellant did not terminate his relationship with White. Appellant and Markman made plans to move to Virginia for a fresh start. However, Markman became suspicious that appellant had not ended his relationship with White. Markman drove appellant in her car to a local Sheetz store, where appellant used a pay phone to call White at Wal-Mart. He falsely told White his father died, and asked her to come to console him. He told her Markman was out of town. Various Wal-Mart employees testified White received this call from appellant, and she told her co-workers appellant's father died and she was leaving work early to console him.
When White arrived at the trailer where appellant and Markman lived, appellant talked with her in the living room, while Markman hid in the bedroom until, according to her subsequent confession and trial testimony, she heard a thump and White cried out because appellant hit her hand with a hammer. Then appellant and Markman subdued White and tied her hands and feet with speaker wire, shoved a large piece of red cloth in her mouth, and used another piece of cloth to tie a tight gag around her mouth. With White bound, Markman and appellant stepped outside to smoke cigarettes and discuss their next move. Upon reentering the trailer, Markman held White down while appellant strangled her with speaker wire and the crook of his arm, killing her. During the struggle, White scratched Markman's neck. White died of asphyxiation caused by strangulation and the rag stuffed into her mouth.
After White died, Markman wrapped White's body in a tent and placed it in the back of White's Jeep. The couple then fled to Virginia. Markman drove her car and appellant drove White's Jeep - carrying White's body. In Virginia, they drove to a remote piece of land owned by appellant's mother, then placed White's body in the trunk of an abandoned car. They discarded White's personal effects, except for her camera, which they intended to sell.
Appellant and Markman remained in Virginia for several days, staying with friends and appellant's father. Appellant continued to drive White's Jeep, which he held out as his own. While staying with Larry Overstreet and Kimberly Stultz, Markman corroborated appellant's story that they bought the Jeep from Markman's friend in Pennsylvania. At the Overstreet residence, Markman retrieved White's camera from the Jeep and they all took pictures of each other - Markman stated she bought the camera from the same woman who sold them the Jeep. Overstreet and Stultz recalled seeing scratches on Markman's neck, which Markman explained were from a dog. Stultz gave Markman the phone number of a pawn shop, and the shop owner testified he gave Markman $90 and a pawn ticket for the camera. Markman asked Stultz for cleaning supplies because "the Jeep smelled bad, like somebody had a dead animal in [it]." N.T. Trial, 10/29/01, Vol. III, at 501. Markman also told Stultz that appellant had been seeing another woman, and if she ever met this other woman, she would "whoop her ass." Id., at 494. Another friend, Nina Jo Fields, testified that during the couple's visit to her home, Markman told her appellant had been cheating on her, but that she "[didn't] have to worry about the damn bitch anymore, [because she] took care of it." N.T. Trial, 10/26/01, Vol. II, at 322, 351.
After White's parents filed a missing persons report, the authorities tracked her Jeep to appellant's location in Virginia. Deputy Brian Vaughan of the Franklin County Sheriff's office in Virginia went to the house to question appellant and Markman about the Jeep and White's whereabouts. When he saw the Jeep in the driveway, he ran the license plate number, which traced back to the Toyota Leasing Corporation.
Markman and appellant came to the door to greet Deputy Vaughan. Deputy Vaughan questioned them separately in his patrol car about the Jeep. Appellant, who was questioned first, told Deputy Vaughan he called White to ask her to console him about his dog, which had just died. Appellant said White never arrived at the trailer, and he subsequently left with Markman for Virginia. He claimed a friend loaned him the Jeep.
Subsequently, Markman voluntarily entered the patrol car and explained to Deputy Vaughan she had only seen White once, but had had several phone conversations with her. She denied knowledge of White's whereabouts, but indicated White had a bad relationship with her parents, suggesting she had run away. Markman denied knowing how appellant acquired the Jeep, and admitted driving separate cars to Virginia. When Deputy Vaughan asked Markman if she was afraid of appellant, she said she was not; rather, she admitted she had a violent temper, and appellant often had to restrain her from attacking him. She said she provoked appellant in the past and had thrown things at him, but appellant never assaulted or threatened her.
Following the police visit, appellant and Markman drove back to the property where they left White's body; there they abandoned the Jeep. Despite the couple's efforts to conceal the evidence, the police soon discovered the Jeep, as well as White's partially-decomposed body in the trunk of the abandoned car - the body was still bound, gagged, and wrapped in the canvas tent. Appellant's fingerprints were found on the car's trunk lid and license plate, a compact disc recovered from the Jeep, the Jeep's hatch, and other evidence recovered from the scene. Markman's fingerprints were found on a potato chip bag retrieved from the Jeep, and the Jeep's passenger door and rear hatch. Subsequent analysis revealed Markman's DNA under White's fingernails.
The Pennsylvania State Police obtained a search warrant for Markman's trailer and executed it; they found blood on a pillow and urine on the carpet in the place White was likely strangled. Police also discovered two lengths of speaker wire, red fibers on the floor, a piece of red cloth, a steak knife, red fibers on the knife, a tent storage bag, a hammer, and a stethoscope. Police arrested appellant and Markman on October 11, 2000, exactly one week after the murder. Police retrieved White's camera from the pawn shop and developed the film. The pictures taken at the Overstreet residence were admitted into evidence at trial; in one photograph - taken just days after appellant and Markman strangled White to death - Markman is laughing while appellant pretends to strangle her.
Following their arrest, and after receiving Miranda*fn4 warnings, Markman and appellant waived their rights and agreed to be interviewed, providing tape-recorded statements. Each independently confessed to participating in White's murder.
Appellant admitted to killing White by strangling her, but claimed Markman instigated the murder to eliminate the source of one of their relationship problems and enable them to start their relationship anew. He maintained Markman directed him to tie White up and strangle her, and Markman forced compliance by hitting him with a hammer and then spinning the hammer in a threatening manner. After White died, Markman listened with a stethoscope to verify her death before wrapping the body in the tent.
In her police statement, Markman admitted she bound and gagged White and held her down while appellant strangled her. She insisted, however, appellant devised the plan to murder White in order to steal her Jeep, and he coerced her assistance by threatening to kill her with a hunting knife if she did not obey him. Markman also asserted appellant wore down her resistance by terrorizing her the night before the murder by holding a knife to her throat and forcing her to remain naked in the trailer. Markman said she only realized White was dead when White lost control of her bladder.
Appellant moved to sever his trial from Markman's because introduction of Markman's confession to police, which was admissible against Markman, would violate his Sixth Amendment right to confront a witness against him. The trial court denied the motion. Appellant and Markman were tried on one count each of criminal homicide, kidnapping, unlawful restraint, and abuse of a corpse, and two counts of theft by unlawful taking or disposition (pertaining to the Jeep and the camera), as well as conspiracy as to all of these offenses.
Appellant and Markman each decided to advance a duress defense, trying to show they engaged in the conduct charged because they were coerced by the other through "the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist." 18 Pa.C.S. § 309(a). Upon learning Markman intended to show she acted under duress as the result of appellant's abuse, appellant filed a motion for reconsideration of the severance denial, arguing he would be prejudiced by evidence of his abuse of Markman. The trial court again denied the motion, and the joint trial began.
During the guilt phase, the Commonwealth played an audiotape of Markman's confession, altered so references to appellant were replaced with another voice saying "the other person." In her confession, Markman initially denied knowledge of White's murder, or even knowing White had been to her trailer the night she was killed. After being questioned, Markman changed her story and said appellant was helping White run away from her parents, and while Markman drove to Virginia in her car, appellant drove White to Virginia in White's Jeep. When police asked about the scratches on her neck, Markman changed her story again and said she had gotten into a fight with White the day she left for Virginia. After further interrogation, Markman confessed to her role in the murder, but blamed appellant for making her participate by threatening and terrorizing her. Markman said when White arrived at the trailer in response to appellant's phone call, she stayed out of the way until she heard White cry out when appellant hit her hand with a hammer. Appellant then made Markman tie White up, gag her, and blindfold her. Markman said after appellant strangled White, he made her wrap White's body in the tent and put it in the Jeep. When asked why appellant killed White, Markman responded she believed he wanted the Jeep.
Markman was permitted to adduce evidence of abuse by appellant in her defense. Markman testified appellant physically abused her during their relationship, particularly in the months before the murder. Markman, at 596-97. She also alleged appellant terrorized her for the two days preceding the murder, during which time he cut her clothes off with a knife, repeatedly raped her, and threatened her if she did not do as he instructed. Id., at 596.
Markman's testimony also included details of the night of the murder. Markman claimed that when she drove appellant to the gas station, she did not know he was planning to call White, and she attempted to escape once they returned to the trailer; however, appellant violently prevented her from leaving. Id. Markman stated even when White was bound and gagged, she did not know appellant was going to kill her, and she was in the kitchen getting White a glass of water when appellant strangled her. Id. At that time, Markman testified appellant ordered her to return the gag to White's mouth because it had slipped, and she only obeyed him because she was afraid he would kill her, too. Id., at 596-97. As for her statement to Officer Vaughan that appellant had never abused her, she said she was trying to protect him. When questioned about the photograph in which she was laughing while appellant pretended to strangle her, Markman stated appellant was tickling her. Id., at 597.
Based on the evidence of abuse, Markman requested a jury instruction on the defense of duress. The trial court refused because Markman placed herself in a situation where it was probable she would be subjected to duress. We disagreed, finding the jury should have been informed of the duress elements. Id., at 609.
The Commonwealth also introduced a tape of appellant's confession, which was redacted so references to Markman were replaced with "the other person" in another voice. Due to an apparent oversight, there were two instances of non-redaction, where appellant's references to Markman by name remained on the tape. Id., at 596 n.5. The confession alleged Markman conceived of the plot to kill White, directed its execution, and forced appellant to cooperate. Id., at 601. Appellant said Markman wanted White dead because she was jealous. He admitted he called White to the trailer because he wanted someone to talk to, and he knew he had to lie to get her to come to the trailer. After appellant talked with White for a few minutes, Markman came out of the bedroom, playing with a hammer. According to his confession, after playing with the hammer, Markman hit him with the hammer "[j]ust enough for me to feel the pain." Transcript of Redacted Taped Statement of Housman, 10/12/00, at 25. Markman directed appellant to tie White's hands, and once he was finished, she tied appellant's hands and White's feet. After blindfolding and gagging White, Markman untied appellant and they went outside to smoke a cigarette. While they were outside, according to appellant's confession, Markman said if appellant loved her, he would do as she told him. When they went back inside, Markman directed appellant to pull speaker wire around White's neck, which he did because he did not "want to die that night" in the event Markman "flipped out and wanted to hit me with a . hammer." Id., at 30. Appellant confessed to devising the plan to leave the state with White's body so they could hide it on his family's Virginia property. Markman's confession implicating appellant was similarly redacted at trial; incriminating references to appellant were removed and replaced with the same phrase, "the other person."
The trial court informed the jury the taped confessions had been altered at the trial court's direction to include the words "the other person" and they were only to consider the confession as evidence against the defendant that gave the confession. Appellant did not testify and presented no defense during the guilt phase. He argued he lacked the specific intent to kill White because of Markman's threats and conduct with the hammer, his confession supported a third degree murder conviction, and the crimes not did not involve kidnapping.
The jury convicted both appellant and Markman of first degree murder and all other charges. Finding one aggravating circumstance, a killing committed while in the perpetration of a felony, see 42 Pa.C.S. § 9711(d)(6), the jury sentenced both to death; post-sentence motions were filed and denied. Markman and appellant filed separate direct appeals. We reversed Markman's convictions and remanded for a new trial for the murder, kidnapping, and unlawful restraint charges because appellant's redacted confession violated Markman's confrontation rights pursuant to Bruton v. United States, 391 U.S. 123 (1968), and Gray v. Maryland, 523 U.S. 185 (1998). See Markman, at 603, 605. We now address the issues raised in appellant's direct appeal.
As indicated, the trial court admitted appellant's audiotaped confession implicating Markman in the murder; the audiotape removed appellant's references to Markman and replaced them with the phrase, "the other person," in a voice distinct from appellant's, with the exception of two instances of non-redaction. See id., at 600-05. Based on that issue, we granted Markman a new trial for murder, kidnapping, and unlawful restraint, but affirmed her convictions for theft, abuse of a corpse, and criminal conspiracy. Id., at 605, 613. This Court held that playing appellant's confession to the jury came within Bruton, as it comprised appellant's attempt to shift the bulk of the blame to Markman, while not affording her the opportunity to cross-examine him. Id., at 603; see Bruton, at 132 (finding admission of non-testifying co-defendant's confession, which facially incriminated defendant, violated defendant's confrontation rights because there was no opportunity for defendant to cross-examine co-defendant concerning assertions in statement).
This Court conducts an independent review of the sufficiency of the evidence in support of first degree murder when a death sentence is imposed. 42 Pa.C.S. § 9711(h); Markman, at 597. There is sufficient evidence when the evidence admitted at trial, and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to enable the fact-finder to conclude the Commonwealth established all of the elements of the offense beyond a reasonable doubt. Markman, at 597.
To sustain a conviction for first degree murder, the evidence must establish the defendant is responsible for the unlawful killing of a human being, and the defendant acted with a specific intent to kill. Id.; 18 Pa.C.S. §§ 2501, 2502(a), (d). In evaluating whether the evidence is sufficient to support the conviction, the Commonwealth may sustain its burden "by means of wholly circumstantial evidence; the entire trial record is evaluated and all evidence received against the defendant considered; and the trier of fact is free to believe all, part, or none of the evidence .." Markman, at 598.
Here, the evidence showed appellant killed White by strangling her with speaker wire after he and Markman subdued her by tying her hands. Appellant and Markman wrapped White's body in a tent, and appellant put the body in White's Jeep. Appellant fled with Markman to Virginia, lied to Virginia police about the Jeep's ownership, disposed of White's body on his family's Virginia property, disposed of the Jeep on the same property when the police began investigating, and left his father's house when police began to suspect the Jeep was stolen. See Commonwealth v. Johnson, 838 A.2d 663, 681 (Pa. 2003) (noting flight and concealment can constitute circumstantial evidence of consciousness of guilt); see also Markman, at 598 (finding evidence sufficient to sustain Markman's conviction for first degree murder for her involvement in killing White). Additionally, appellant placed the call that lured White to the trailer under false pretenses. These facts are sufficient to sustain a finding that appellant acted with the specific intent to kill White. See id.
Appellant further challenges the sufficiency of the evidence to sustain his convictions for kidnapping and conspiracy to commit kidnapping. As we explained in Markman, where we were faced with the same argument appellant currently advances, kidnapping is defined as follows:
(a) Offense defined.-A person is guilty of kidnapping if he unlawfully removes another a substantial distance under the circumstances from the place where he is found, or if he unlawfully confines another for a substantial period in a place of isolation, with any of the following intentions:
(1) To hold for ransom or reward, or as a shield or hostage.
(2) To facilitate commission of any felony or flight thereafter.
(3) To inflict bodily injury on or to terrorize the victim or another.
(4) To interfere with the performance by public officials of any governmental or political function.
18 Pa.C.S. § 2901(a). Removal or confinement is unlawful if accomplished by force, threat, or deception. Id., § 2901(b).
Appellant argues there was no evidence White was confined for a substantial period in a place of isolation. In Markman's direct appeal, we found "the determination of a substantial period subsumes not only the exact duration of confinement, but also whether the restraint, by its nature, was criminally significant in that it increased the risk of harm to the victim." Markman, at 600. We concluded it was undisputed White was not immediately killed after being tied up and was left alone in the trailer while appellant and Markman went outside to smoke cigarettes and discuss their plan. Id. If White had not been so confined, she might have escaped or cried for help. Id. The confinement period was also sufficient to cause an increased risk of harm due to the oxygen blockage from the rag in her throat. Id. Ultimately, we found in Markman that the jury was entitled to conclude "White was confined in a place of isolation for a substantial period." Id.
Appellant asserts the Commonwealth failed to demonstrate White was unlawfully confined in a place of isolation because she was held in the living room of a trailer located in a busy trailer park in the early evening, and her location arguably preserved for her the usual protections of society. However, appellant bound White's hands, while Markman gagged her so she could not cry out, thus confining her in a place of isolation, "separated from the normal protections of society in a manner which made discovery or rescue unlikely." Id. (citing Model Penal Code § 212.1, cmt. 3 (place of isolation "is not a geographical location but rather effective isolation from the usual protections of society[;]" one's own apartment in city may be "place of isolation," if circumstances of detention made discovery or rescue unlikely)). Thus, the evidence was sufficient to support appellant's kidnapping conviction. Appellant also asserts there was insufficient evidence of conspiracy to commit kidnapping because he did not kidnap the victim. For the reasons above, we likewise find the evidence is sufficient to sustain appellant's conviction for conspiracy to commit kidnapping. See 18 Pa.C.S. § 903.*fn5
Further, appellant contends his death sentence must be vacated because the evidence failed to support the only aggravating circumstance the jury found - that appellant committed a killing while in the perpetration of the felony of kidnapping. See 42 Pa.C.S. § 9711(d)(6). As discussed above, the evidence was sufficient to support appellant's ...