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[U] Commonwealth v. McAnulty

Superior Court of Pennsylvania

May 23, 2013



Appeal from the Judgment of Sentence August 9, 2011 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0003108-2010, CP-65-CR-0003147-2010




Richard A. McAnulty ("McAnulty") appeals from the judgment of sentence imposed in the Court of Common Pleas of Westmoreland County following a jury trial and convictions for murder of the first degree;[1]burglary;[2] persons not to possess, use, manufacture, control, sell or transfer firearms (two counts; F2);[3] and firearms not to be carried without a license (F3).[4] Upon review, we affirm.

The facts of this case are as follows. On July 11, 2010, McAnulty was at his residence in Homer City, Indiana County, where he lived with his wife, Carolyn Diane McAnulty ("Diane"), and his ailing mother, Patricia. Kimberly Ann Gray ("Gray"), Patricia's caregiver and a Resta Home Health employee, was also at McAnulty's home on that day. At about 11:00 a.m., Tony Reid ("Reid"), a friend of McAnulty's, briefly stopped by the house, and he and McAnulty spent some time in the garage inspecting a broken lawnmower. Reid testified that McAnulty did not appear angry and that he "didn't smell any alcohol on his breath." N.T. Trial, 07/18/2011, at 639.

After Reid left, McAnulty "stepped out on the front porch" with Diane, and got into an argument with her. N.T. Trial, 07/12/2011, at 228. The argument related to the e-mails Diane received from Harry Mears ("Mears"), the victim, during their extramarital affair in 2009. McAnulty also learned about Mears' recent e-mail "recontact" with Diane. N.T. Trial, 07/14/2011, at 568. The argument got "loud, " McAnulty sounded "angry, " and there was a sound "like somebody was pushed into the front door." N.T. Trial, 07/12/2011, at 230-31.

When McAnulty walked back into the house, he started listening to the music from his father's funeral and "looking at papers." Id. at 233. He then got up, came over to Gray, "threw the e-mails" at her and told her to read them. Id. at 233.

At trial, Diane authenticated the e-mails as "correspondence e-mails from [Mears]" to her. N.T. Trial, 07/18/2011, at 654. She testified that McAnulty had access to her e-mails, and that he kept copies of the three emails from Mears to her "in a drawer of a piece of furniture" in one of the rooms in their home. Id. at 654. She also testified that the relationship ended approximately one year before Mears' death, and that Mears recently recontacted her by sending his "last e-mail" to her on June 21, 2010, a few weeks before McAnulty shot him. Id. at 656. She stated that she deleted that e-mail from her inbox, and that she was unaware whether McAnulty had read it.

Gray testified that McAnulty informed her "there was a job that needed to be done." N.T. Trial, 07/12/2011, at 237. McAnulty picked up his rifle and "went out the front door." Id. at 244. Gray tried to stop him but he "got into his burgundy truck" and drove off. Id. at 245. Gray then called her supervisor and reported that "there was a problem in the home" and that she understood that McAnulty was "going to Greensburg, " where Mears lived, to "take care of something." Id. at 256-57.

At approximately 2:30 p.m., McAnulty picked up Jevon Scott Little ("Little"), a hitchhiker, who was standing on Route 119, on his way back to Greensburg where he lived. McAnulty mentioned to Little that he was trying to locate his former employer who resided in Greensburg. He said that "they had a disagreement in the past" but that was over now and he "was just going to pick up some money from the guy." Id. at 317. McAnulty asked if Little could assist him with locating his house in Greensburg. He showed Little a piece of paper on which the victim's name, e-mail address, telephone number and home address were written. Id. at 320. Little testified that he and McAnulty were talking during the entire twenty-five to thirty-minute trip to Greensburg and that McAnulty did not appear to be angry, did not show any signs of intoxication, and seemed "level-headed" and "in control." Id. at 322.

Upon arrival in Greensburg, McAnulty and Little stopped at a Volunteer Fire Department to get directions. Little noticed, as they exited the truck, that McAnulty was wearing a "large camouflage holster. . . over his left shoulder." Id. at 325. As there was no one present at the firehouse, McAnulty and Little then stopped at a bar to get directions. Ann Jones, a waitress at the bar, testified that McAnulty's demeanor at the bar did not strike her as unusual in any way, and that he was "[j]ust a normal customer." N.T. Trial, 07/13/2011, at 443. She also stated that, upon getting directions from two bar patrons, McAnulty left without finishing his drink.

After McAnulty and Little located Mears' residence at 615 Oakland Avenue, Little told McAnulty that he could walk to his home from there. McAnulty said that he would "take him to [his] house" first and then return. N.T. Trial, 07/12/2011, at 333. When Little was exiting McAnulty's truck, he noted a "pistol" with a "wooden grip" laying on the back seat. Id. at 334. The weapon was later identified as the firearm used in the shooting.

At about 3:15 pm, McAnulty arrived at Mears' home. Gray testified that McAnulty told her that when Mears' opened the door, McAnulty stuck his pistol inside. Mears started screaming and shut the door but McAnulty kicked the door in, and chased him upstairs. As Mears exited the window and climbed onto the roof, McAnulty shot him in the leg. Mears fell from the roof onto the ground. McAnulty went outside and stood over Mears who was crying, "Help me, please somebody help me . . . . God, please help me." N.T. Trial, 07/11/2011, at 73. When Mears told McAnulty "how bad it hurt, " McAnulty replied, "[N]ot as bad as my heart. You'll never sleep with another man's wife." N.T. Trial, 07/12/2011, at 271. He then shot Mears twice in the chest.

Peggy Mars ("Mars"), who residing at 613 Oakland Avenue, adjacent to Mears' home, heard a loud noise followed by a plea for help. Peggy recognized Mears' voice. She exited her house and saw Mears lying between their homes, "a fountain of red blood coming out of his shoulder." N.T. Trial, 07/11/2011, at 79.

Another neighbor, Joanne Fetter ("Fetter"), who resided at 618 Oakland Avenue, across the street from Mears, heard a loud noise, looked out her front door and saw Mears come out from his second-floor window, get onto the roof above the porch and roll off the roof onto the ground. From her home, Fetter saw Mears lying between the Mears' and Mars' homes. She immediately called 911. Joanne also observed McAnulty cross Oakland Avenue "with a gun in his hand, " get into his truck, and drive away. Id. at 98.

Jeffrey Donati ("Donati"), another neighbor, saw Mears "falling from the air and landing on the ground" at the side of his residence. Id. at 138. Within seconds, he "saw a man exit the residence and [go] between the houses." Id. at 142. Donati heard "another bang-like sound, like a gunshot." Id. After that, he saw a man, McAnulty, "casually walk from the area" and get into his truck. Id.

Dave Thomas ("Thomas"), another neighbor, identified McAnulty as carrying "a large frame revolver" and leaving the area in a "maroon F150" truck. Id. at 161-62. Thomas stated that McAnulty "seemed pretty calm." Id. at 164.

At 4:30 p.m., McAnulty called his home, spoke with Gray and told her that he had killed Mears. She testified that "he didn't sound angry." N.T. Trial, 07/12/2011, at 263. At 4:41 p.m., McAnulty called Reid on his cell phone, and said to him, "I shot him." N.T. Trial, 07/18/2011, at 641. When Reid asked him who he shot, McAnulty answered, without ...

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