Appeal from the Order Entered April 14, 2010 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0005405-2009
The opinion of the court was delivered by: Stevens, P.J.
IN THE SUPERIOR COURT OF PENNSYLVANIA
Appeal from the Order Entered August 12, 2010 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0005405-2009
BEFORE: STEVENS, P.J., BENDER, J., PANELLA, J., DONOHUE, J., ALLEN, J., MUNDY, J., OLSON, J., OTT, J., and WECHT, J.
The Commonwealth appeals two pre-trial orders, which were entered on April 14, 2010, and August 12, 2010, in the Court of Common Pleas of Berks County, in two related criminal cases pertaining to Appellee William R. Landis, Jr., who was charged in connection with the murder of his wife, as well as the assault on police officers who attempted to take him into custody following a lengthy standoff.*fn1 On appeal, the Commonwealth contends (1) with regard to Appellee's case involving the assault on the police officers, the trial court erred in granting Appellee's request for a writ of habeas corpus on the charge of assault of law enforcement officer, 18 Pa.C.S.A. § 2702.1, and (2) with regard to Appellee's case involving the murder of his wife, the trial court erred in denying that portion of the Commonwealth's motion in limine in which the Commonwealth sought to introduce evidence Appellee shot at a police officer, who was attempting to take him into custody for his wife's murder, where such evidence is probative of Appellee's familiarity with firearms and his consciousness of guilt for the murder. After a careful review, for those portions of the orders relevant to this en banc appeal, we reverse the orders and remand the cases for further proceedings in accordance with this decision. We affirm the orders in all other respects.
The relevant facts and procedural history are as follows: Following the murder of Appellee's wife and his subsequent standoff with police, Appellee was arrested and charged with various offenses at cases docketed at CP-06-CR-0005405-2009 and CP-06-CR-0005405-2009.*fn2 The cases were initially joined and, on December 10, 2009, Appellee, who was represented by counsel, proceeded to a preliminary hearing at which Police Officers Eric Goss, Stephen Brock, and Matthew Beighley testified. Specifically, the officers' testimony revealed that, on October 28, 2009, at 9:21 p.m., they were dispatched to a secluded house at 537C Arrowhead Trail to investigate a possible shooting. N.T. 12/10/09 at 28-29, 75-76. Dispatch informed the officers that a man had called to report that a woman had been shot. N.T. 12/10/09 at 29, 76.
Within five to seven minutes of receiving the dispatch, several police vehicles arrived at the house. N.T. 12/10/09 at 31, 76. After conferring with each other, the officers deemed it necessary to approach the house to determine whether there were any victims inside needing assistance. N.T. 12/10/09 at 32-33. Thus, the officers approached the front door, which was fully opened, and announced their presence. N.T. 12/10/09 at 33-34. The officers received no response, but noticed that several lights were on inside of the house. N.T. 12/10/09 at 34. The officer in charge directed the other officers to tactically enter the residence to search for possible victims and/or suspects. N.T. 12/10/09 at 36. Officer Goss covered the front door and the downstairs, while Officer Travis Fritz, Detective Stephen Brock, and Officer Gary Thompson searched the upstairs. N.T. 12/10/09 at 36-37.
Within a minute of the officers going upstairs, Detective Brock discovered in a bedroom a "middle-aged female lying on her back with what appeared to...be at least one gunshot wound to the head area." N.T. 12/10/09 at 81. Detective Brock yelled, "We need an ambulance. We have a female victim with a gunshot wound to the head." N.T. 12/10/09 at 39. Officer Goss maintained his position until Officer Thompson directed him to "clear the rest of the downstairs." N.T. 12/10/09 at 40. Thus, Officer Goss, along with Officer Thompson, Sergeant Roy Brennan, and Officer Fritz, checked the first floor dining room, kitchen, and living room, while Detective Brock initially stayed upstairs. N.T. 12/10/09 at 41, 83. Finding no victims or suspects on the first floor of the house, they proceeded to check the garage and noticed a door, which Officer Goss opened. N.T. 12/10/09 at 43. The door revealed steps leading to a lit basement. N.T. 12/10/09 at 43. From the basement, Officer Goss heard a noise, which sounded similar to a touch phone being dialed. N.T. 12/10/09 at 43. Officer Goss announced his presence and requested that the person in the basement "come out." N.T. 12/10/09 at 44. Officer Goss received no response, and thus, with Officer Thompson following closely behind him, Officer Goss cautiously walked down the basement stairs, with his gun drawn, scanning the area. N.T. 12/10/09 at 44. Officer Goss described the following:
[OFFICER GOSS]: As you go down the staircase, the stairs have a wall, a full wall, going on the left side, and the right side is cut open, showing a little bit of the basement area. As I was going down the stairs, there's also pictures on that wall, glass pictures of--I don't know what they are exactly. I observed an object in one of the pictures. It appeared to be coming from the right side. At that point, I began to turn to see if that object was next to me.
[PROSECUTOR]: All right. What did you see when you turned to your right?
[OFFICER GOSS]: I saw [Appellee].
[PROSECUTOR]: What, if anything, did you say to [Appellee]? What did [Appellee] say to you, sir?
[OFFICER GOSS]: The timeline for me going down the stairs, seeing the object was approximately three or four seconds. As I was going down, I was told, "Do not come down here." [PROSECUTOR]: Who told you that?
[OFFICER GOSS]: It sounded like a male voice, [Appellee]. [PROSECUTOR]: From the basement?
[PROSECUTOR]: All right. What, if anything, did you do or say in response to that order?
[OFFICER GOSS]: I briefly paused, and then [Appellee] yelled at me again.
[PROSECUTOR]: What did he yell?
[OFFICER GOSS]: It was, "Do not come down here," and then there was a pause, "or I'll kill you."
[PROSECUTOR]: Ok. Where were you positioned when you first saw [Appellee] there?
[OFFICER GOSS]: I was right at the--I guess it would be the crest of where the wall on the right-hand side ends and the staircase is. So about the--I don't know--sixth step or so.
[PROSECUTOR]: When you first observed [Appellee] [in this position] had you already heard him make the statements you testified to? Was that before or---
[OFFICER GOSS]: It was approximately right at the same time.
[PROSECUTOR]: All right. Can you describe what you saw when you saw [Appellee]? How did he appear? What, if anything, did he appear to be doing to you? Or doing. Excuse me.
[OFFICER GOSS]: I believe [Appellee] had an object in his hand. I'm not a hundred percent sure what the object was, but I believed it was a knife.
[PROSECUTOR]: All right. What did you do when you observed the object in [Appellee's] hand?
[OFFICER GOSS]: I immediately started to re--go backwards on the staircase. And I advised [Officer] Gary Thompson that there was a male in the basement and to retreat. [PROSECUTOR]: Officer Goss, why did you retreat? Why didn't you stay and learn more? Why did you retreat?
[OFFICER GOSS]: At that point, I was advised that we had one female shot. I did not know if that was a victim or a suspect. For my safety and the safety of the officers behind me, I wanted to go to a position of cover.
[PROSECUTOR]: All right. And did you, in fact, gain a position of cover?
[PROSECUTOR]: All right. Did [Appellee]...follow you up the stairs or remain in the basement?
[OFFICER GOSS]: He remained in the basement.
N.T. 12/10/09 at 45-47, 49, 50-52.
Officer Goss indicated that the entire sequence from when he partially went down the steps until he retreated lasted approximately thirty seconds.
N.T. 12/10/09 at 73. Upon his retreat, Officer Goss advised Detective Brock, who had joined the other officers at the top of the basement stairs, that a suspect, who was later identified as Appellee, was in the basement. N.T. 12/10/09 at 66-67. With Officers Goss, Thompson, and Fritz standing behind him, Detective Brock stood at the top of the basement steps, taking cover behind the basement door's frame. N.T. 12/10/09 at 85. Detective Brock announced his identity to Appellee and engaged in a conversation with him while the police awaited the arrival of the Berks County Emergency Tactical Team (Tactical Team). N.T. 12/10/09 at 66-67, 86. Specifically, Detective Brock, who was unable to see Appellee from his vantage point, yelled down the stairs, "Who's down there? Who are you? What's going on? Come up right now. Come up. We're going to come downstairs." N.T. 12/10/09 at 86-87. In response, Appellee yelled back, "Don't come down here. Don't send anybody down here or I'll shoot them." N.T. 12/10/09 at 87. Appellee asked Detective Brock, "How is my wife?" N.T. 12/10/09 at 67. Detective Brock responded that medics were treating her.*fn3 N.T. 12/10/09 at 67-68. During the conversation, Appellee momentarily came around the corner of the steps so that Detective Brock could see him and then quickly retreated further into the basement. N.T. 12/10/09 at 89. During his brief observation of Appellee, Detective Brock noticed that Appellee had a handgun pointed to his head and a large knife/sword in his other hand. N.T. 12/10/09 at 89-90, 117. Detective Brock asked Appellee what had happened, and Appellee repeatedly said, "Don't come down here. I don't want anybody to come down here. You know, I'll shoot anybody [that] comes down[.]" N.T. 12/10/09 at 91, 113. Appellee told Detective Brock, "I don't want to hurt anybody else. I just want to hurt myself, but if you send anybody down the steps--just don't send anybody down the steps or I'll shoot them, but I don't want to hurt anybody." N.T. 12/10/09 at 118. Eventually, Appellee told Detective Brock that his name was "Bill." N.T. 12/10/09 at 91. He also told Detective Brock that "he and his wife had an argument and that she said she was going to kill him and he grabbed a gun and then accidentally shot her." N.T. 12/10/09 at 91. Appellee told Detective Brock he loved his wife and he could not live with himself for hurting her. N.T. 12/10/09 at 125. With regard to the conversation and Detective Brock's observations, Detective Brock testified as follows:
[PROSECUTOR]: During this conversation--this conversation that you have with him going back and forth, how--can you give us a time frame of how long you're speaking to him this initial time that you talked to him?
[DETECTIVE BROCK]: The initial time, the first time I was there, I would say probably a couple of hours.
[PROSECUTOR]: And as you're talking to him, you indicated you see him once. Does he come back towards the steps again? [DETECTIVE BROCK]: A couple of times, yeah. [PROSECUTOR]: And what does he do when he comes back to the steps?
[DETECTIVE BROCK]: Well, it was--there was a lot of actual encounters. He would retreat, and then he would come back. And then at one point, he was facing me and--
[PROSECUTOR]: Let me stop you. When you say he was facing you, where had he physically put himself?
[DETECTIVE BROCK]: At the bottom of the steps, looking right up the steps at me.
[PROSECUTOR]: Okay. And are you still behind cover when you see him?
[DETECTIVE BROCK]: I'm standing right about here (pointing to sketch).
[PROSECUTOR]: When he came to the bottom of the steps, were you still behind the initial post where you had talked about earlier?
[DETECTIVE BROCK]: Yeah. Throughout the entire incident, I wasn't always completely behind this. Most of the time, I was actually--most of my body--at least half of my body was exposed, so I could physically see down the stairs and hear what was going on.
[PROSECUTOR]: What, if anything, did he do when he came to the bottom of the steps?
[DETECTIVE BROCK]: Well, he came to the steps, and I could see he didn't have anything in his hands initially, and I asked him to take everything out of his pockets. I was trying to get him to surrender, to give up. And he was pulling his pockets out, and he pulled a handgun out of his right pocket and was still looking at me and talking to me, but still holding the handgun in his hand.
[PROSECUTOR]: All right. And how was he holding that handgun in his hand?
[DETECTIVE BROCK]: Kind of probably like waist-high, like just out of his pocket, kind of. The barrel was pointed towards the steps, and just kind of still looking at me and speaking with me for a little bit, and then he retreated.
We continued, you know, to have conversation back and forth. On at least two [occasions,] he came around the corner to the bottom of the stairs and was actually pointing the handgun up the stairs at me, kind of blading his body, where like--kind of like this way (indicating), right here where the post is
(indicating), pointing the handgun up at me, the barrel--kind of aiming it, like, trying to line it up to where I was.
[PROSECUTOR]: What if anything, did you say or do when [Appellee] had the gun pointed at you?
[DETECTIVE BROCK]: I was telling him to put the gun down, to stop pointing the gun at me.
[PROSECUTOR]: Did [Appellee] comply with your commands?
[DETECTIVE BROCK]: No. He--no. He wasn't really saying much at that point. It was once, and then it was--at least two different times that he did that.
[PROSECUTOR]: Did you have a weapon that night? [DETECTIVE BROCK]: Yes.
[PROSECUTOR]: And where was your weapon? Let me kind of back up a second. When you first--is your weapon drawn? [DETECTIVE BROCK]: Yes.
[PROSECUTOR]: Was your weapon drawn the entire evening?
[DETECTIVE BROCK]: Not the entire evening, but--
[PROSECUTOR]: When [Appellee] pointed the gun at you, where was your weapon?
[DETECTIVE BROCK]: Pointing down the stairs in ...