Appeal from the Judgment of Sentence June 20, 2007 In the Court of Common Pleas of Washington County Criminal, No. CP-63-CR-0000520-2005
The opinion of the court was delivered by: Gantman, J.
BEFORE: FORD ELLIOTT, P.J., STEVENS, GANTMAN, PANELLA, DONOHUE, SHOGAN, ALLEN, LAZARUS, AND MUNDY, JJ.
Appellant, Randy Reese, appeals from the judgment of sentence entered in the Washington County Court of Common Pleas, following his conviction for first degree murder. In pursuit of a new trial, Appellant challenges four of the trial court's evidentiary rulings. We hold that Appellant's claims do not merit the new trial he requests. Accordingly, we affirm.
This case involves the following relevant facts and procedural history. On Sunday, February 20, 2005, around 3:45 P.M., Martha Medili reported to police that she had discovered John Lewis dead in his apartment bedroom. Investigation revealed Mr. Lewis had sustained blunt force trauma to his head as well as several stab wounds to his chest and a large slice wound to his neck. The immediate crime scene was very bloody but showed little signs of a struggle. Mr. Lewis was found completely naked except for his shoes and socks. There were no signs of forced entry. There were, however, signs of an attempted cleanup that, in addition to Mr. Lewis' extensive blood loss, the heat, and the moisture in the apartment, severely compromised the collection of solid fingerprints or DNA evidence. The apartment building where Mr. Lewis lived and was found had surveillance cameras, which recorded the entry and exit of the residents and visitors. The authorities obtained the actual surveillance tapes and observed Appellant several times on the surveillance tape recordings for Saturday, February 19, 2005, and very early Sunday morning, February 20, 2005. Appellant was wearing a distinctive baseball cap and an identifiable sweatshirt. Further investigation led the police to arrest Appellant on Thursday, February 24, 2005, for the murder of Mr. Lewis.
Appellant was arraigned and charged with criminal homicide. Following several delays, on October 24, 2005, the court appointed current counsel to represent Appellant. On February 17, 2006, counsel moved for additional time to prepare a defense. The court granted the motion and continued the case until April 17, 2006. Meanwhile, Appellant filed an omnibus pretrial motion to suppress the baseball cap, any and all statements of Appellant made on February 24, 2005, subsequent to his arrest, all photographs depicting cuts on Appellant's hands and head, and testimony about the cuts. Appellant also challenged the lawfulness of his arrest and moved to quash the criminal information. The court held the suppression hearing on May 20, 2006, after which the court asked the parties to brief the issues. By opinion and order entered October 23, 2006, the court denied Appellant's motion to suppress evidence, to declare the arrest unlawful, and to quash the criminal information. On December 28, 2006, the court granted a joint request for a continuance and scheduled trial for April 23, 2007.
On April 4, 2007, Appellant filed notice of an alibi defense. The Commonwealth filed a motion in limine on April 16, 2007, to admit, inter alia, the testimony at trial of Janise Kohn, Appellant's putative wife, regarding certain statements Appellant had made in a telephone call to her on Sunday evening, February 20, 2005, as well as in two other telephone calls he made to her on the ensuing days. On April 18, 2007, Appellant filed his own motion in limine to preclude, inter alia, Janise Kohn's testimony, claiming the content of the telephone conversations at issue constituted confidential communications made during their marriage.
On Monday, April 23, 2007, the court held a hearing on the warring motions in limine. With respect to Appellant's invocation of the spousal privilege, Janise Kohn testified regarding her relationship with Appellant. She stated she had known Appellant for about five years and married him in a ceremony on July 18, 2002. She filed for a divorce in 2006. Appellant signed an affidavit of consent for the divorce in September 2006. Between July 2002 and the divorce in 2006, Ms. Kohn said she and Appellant actually lived together for about only three to six months, but not continuously; two months was the longest they had ever spent together at any one time. Ms. Kohn kept her own name, rented her own apartment, and Appellant would stay with her from time to time; but he was not on her lease. Over the years she knew Appellant, Ms. Kohn had obtained at least two protection from abuse ("PFA") orders against him for personal injury and property damage. She said she did not file for a divorce sooner because she was afraid of Appellant and what he might do, given his continued threats of harm to her and to himself. Ms. Kohn told the court that Appellant stayed with her for one week in December 2004, when he was released from jail, until he was banned from her apartment complex for causing a disturbance. After Appellant left, he called Ms. Kohn from time to time just to check in with her. She described their relationship as "broken."
Sometime in January 2005, Appellant told Ms. Kohn he was staying with another woman, Linda Cape, and intended to sleep with her. Ms. Kohn also saw Appellant in January 2005, when she gave him a ride in her car. In the car she asked for a divorce, and Appellant threatened a murder/suicide scenario. The threat stopped her from seeking a divorce at that time. Another incident occurred on January 13, 2005, when Appellant surprised Ms. Kohn at her workplace and asked her for another ride. When she declined, he showed her a knife. Ms. Kohn reported the incident to her manager, who called the police. Ms. Kohn filed a police report. After that, Ms. Kohn saw Appellant once more, when he arrived at her apartment uninvited, late in the middle of the night, and refused to leave until early the next day. They did not engage in sexual relations.
The next time Ms. Kohn heard from Appellant was on the evening of Sunday, February 20, 2005, when he called to tell her that Mr. Lewis was dead, and not from natural causes. During that call, Appellant suggested he would be brought in for questioning because he was on the surveillance tapes at Mr. Lewis' apartment house. Ms. Kohn asked Appellant if he "did it"; Appellant answered "of course, no." Appellant's counsel focused initially on the telephone calls but also asked Ms. Kohn if she had told Appellant at any time since 2004 that she wanted to patch things up with him. Ms. Kohn insisted to the contrary that she had asked Appellant repeatedly over the years for a divorce. Ms. Kohn also confirmed Appellant's first telephone call to her on the weekend of the murder was in the evening of Sunday, February 20, 2005. On re-direct examination, Ms. Kohn told the court Appellant had hocked his wedding band and ripped up their "marriage license" within a week of the July 18, 2002 ceremony. (See N.T., 4/23/07, at 4-34.)
Appellant testified. He asserted Ms. Kohn was his wife in February 2005, when he made the telephone calls at issue; and he expected the content of the calls to be confidential. Appellant said Ms. Kohn married him in 2002, filed a PFA against him in 2003, and took him into her home in 2004, when he was released from jail and had no place to go. Appellant conceded that when he made the telephone calls to Ms. Kohn in February 2005, he was seeing another woman. Still, he claimed he expected the calls would be confidential. On cross-examination, Appellant disputed both the content and the timing of the telephone calls at issue. Appellant further claimed he had called Ms. Kohn two/three times every week, but he could not remember exactly when. The other woman Appellant was with in February 2005, was Linda Cape. In fact, at the time of the homicide Appellant was already living with her, first at 207 Main Street, then at 25 West Walnut Street. (Id. at 34-45). The Commonwealth asked Appellant about a woman named Crystal, and an unanticipated exchange occurred:
[Commonwealth]: Aside from Linda Cape, are there any other women that you had relationships with during this period of marriage with Janise Kohn?
[Commonwealth]: Was there a girl by the name of Crystal [Enos]?
[Appellant]: Yeah. That's my previous wife before Janise.
[Commonwealth]: When were you married to Crystal?
[Appellant]: I believe it was back in either '99 or 2000.
[Commonwealth]: Where were you married to her?
[Commonwealth]: Where is Crystal today?
[Appellant]: I believe that she's in Maryland.
[Commonwealth]: Did the two of you get a divorce here?
[Commonwealth]: Did you ever get a divorce?
[Appellant]: She filed for divorce, I believe it was
Owings Mills, Maryland or something like that.
[Commonwealth]: I'm sorry, [Appellant]. Speak closer to the microphone.
[Appellant]: She filed for divorce in Maryland.
[Commonwealth]: Do you recall the year that she filed for divorce?
[Appellant]: No, I don't.
[Commonwealth]: Was it 2003?
[Appellant]: I can't recall.
[Commonwealth]: Could it have been later than 2003?
[Appellant]: I don't think so.
[Commonwealth]: Do you have any recollection if it was in 2002?
[Appellant]: I just don't remember.
[Commonwealth]: Did you separate from Crystal and then start seeing Janise Kohn?
[Commonwealth]: [Appellant], did you contest the divorce with Crystal?
[Appellant]: No, I didn't.
[Commonwealth]: Did you receive a decree?
[Appellant]: I didn't. I believe my father did.
[Commonwealth]: Your father did?
[Commonwealth]: Is that Mr. Melvin Reese?
[Commonwealth]: And he lives off of Morganza Road?
[Appellant]: He did at the time.
[Commonwealth]: He doesn't live ...