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Commonwealth of Pennsylvania v. Kevin James Foley

February 15, 2012

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
KEVIN JAMES FOLEY, APPELLANT



Appeal from the Judgment of Sentence of June 1, 2009 In the Court of Common Pleas of Indiana County Criminal Division at No(s): CP-32-CR-0001170-2007

The opinion of the court was delivered by: Panella, J.

BEFORE: PANELLA, SHOGAN, and COLVILLE,*fn1 JJ.

Appellant, Kevin James Foley, appeals from the judgment of sentence entered on June 1, 2009, by the Honorable William J. Martin, President Judge of the Court of Common Pleas of Indiana County, Criminal Division. After careful review, we affirm.

In the early morning hours of April 13, 2006, Dr. John Yelenic, a dentist living alone in Blairsville, Pennsylvania, was brutally assaulted and murdered in his home. After an eight-day jury trial, Foley, a Pennsylvania State Police Trooper who was living with Dr. Yelenic's estranged wife,*fn2 was found guilty of first-degree murder and sentenced to life imprisonment. This timely appeal followed.

Appellant presents the following issues for our review:

I. WHETHER THE TRIAL COURT ERRED IN PRECLUDING THE TESTIMONY OF BETTY MORRIS AT TRIAL, WHERE THE EVIDENCE WAS RELEVANT AND ADMISSIBLE TO DEMONSTRATE THE MOTIVE OF ANOTHER PERSON TO COMMIT THE CRIME?

II. WHETHER THE TRIAL COURT ERRED IN ADMITTING THE TESTIMONY OF DR. MARK PERLIN, IN VIOLATION OF THE FRYE TEST FOR THE ADMISSIBILITY OF NOVEL SCIENTIFIC TESTIMONY?

III. WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE?

IV. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING THE SHOE PRINT EVIDENCE AT TRIAL?

V. WHETHER THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON THE PERMISSIVE INFERENCE OF MALICE FROM THE USE OF A DEADLY WEAPON?

Appellant's Brief, at 4. We proceed to the merits.

Foley's first claim is that the trial court erred in excluding the testimony of Bette Morris.*fn3 The trial court may exercise its discretion in deciding whether to admit evidence, and our review of the trial court's evidentiary decisions is limited to determining whether the trial court abused its discretion. See Commonwealth v. Moser, 999 A.2d 602, 605 (Pa. Super. 2010). The trial court abused its discretion only if its ruling "reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support to be clearly erroneous." Id.

During the criminal investigation of this case, Bette Morris said to a law enforcement officer that on two occasions she had observed Dr. Yelenic engaged in intimate acts with his next door neighbor, Melissa Uss. According to Foley's counsel, if placed on the stand, Bette Morris would deny that she had ever made such observations, and then counsel would treat her as a hostile witness and impeach her with the statement she gave police. See N.T., March 17, 2009, at 135. When the Commonwealth objected that this evidence was irrelevant, Foley's counsel explained that it was intended to show that Melissa Uss's husband had a motive to kill Dr. Yelenic: "[A] jury could infer that somebody who was having a romantic affair with Dr. Yelenic, the husband might be inclined to do something and that is a fair inference from that." Id., at 137. However, when the trial court asked whether the defense had any evidence that Melissa Uss's husband knew of the supposed intimate acts, defense counsel conceded that he had no such evidence. See

id. According to the defense, Bette Morris's observations were made when Mr. Uss was in the military and not at home.*fn4 See id., at 135. The trial court excluded the testimony of Bette Morris on the grounds that it was "a mere suggestion of motive and therefore irrelevant and inadmissible." Opinion and Order of Court, November 4, 2009, at 10.

Generally, "proof of facts showing the commission of the crime by someone else is admissible." Commonwealth v. Boyle, 368 A.2d 661, 669 (Pa. 1977). However, the Pennsylvania Supreme Court has held that facts suggesting that someone had a motive should not be considered by the jury if the person had no knowledge of the suggestive facts. See Commonwealth v. Giovanetti, 19 A.2d 119, 125 (Pa. 1941).

In Giovanetti, the murder victim had an employer-provided life insurance policy with his wife, the defendant, listed as the beneficiary. See id. The trial court refused the defendant's request to instruct the jury that it could consider the insurance policy as evidence of her motive only if it found that she knew about the policy before the murder. See id. The Supreme Court reversed, holding that the wife's knowledge of the policy was necessary for it to be considered as evidence of her motive to kill. See id.

The trial court's decision to preclude the testimony of Bette Morris had a sufficient basis in the governing law and was not an abuse of discretion. Although intimate contact between the victim and Melissa Uss may suggest that her husband had a motive, "merely suggesting that someone else may have had a motive is not evidence." Commonwealth v. Rivers, 644 A.2d 710, 715 (Pa. 1994). The trial court acted within its discretion in rejecting the testimony as irrelevant because the husband had no knowledge of the intimate contact. See Giovanetti, 19 A.2d at 125. Because there was no other evidence corroborating the suggestion ...


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