Submitted Sept. 13, 2013.
Appeal from the Order of the Superior Court entered
January 13, 2012 at No. 770 WDA 2010, vacating the Judgment of Sentence of
the Court of Common Pleas of Clearfield County entered March 30, 2010 at
CP-17-CR-0000347-1995 and remanding. Appeal allowed November 28, 2012 at 186
WAL 2012. Trial Court Judge: Fredric J. Ammerman, President Judge.
Intermediate Court Judges: John L. Musmanno, Paula Francisco Ott, Robert E.
[Copyrighted Material Omitted]
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Trudy Gale Lumadue, Esq., for Commonwealth of Pennsylvania.
Paul David Boas, Esq., Pittsburgh, for Mark Newton Spotz.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
The Commonwealth appeals from the order of the Superior Court, which reversed the order denying Appellee's petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, vacated his judgment of sentence, and remanded for a new trial. We reverse the order of the Superior Court and remand to that court for consideration of Appellee's PCRA issues that remain in abeyance.
The facts underlying Appellee's conviction and judgment of sentence are discussed more fully in this Court's prior decision on discretionary review of Appellee's direct appeal, Commonwealth v. Spotz, 582 Pa. 207, 870 A.2d 822 (2005), cert. denied, 546 U.S. 984, 126 S.Ct. 564, 163 L.Ed.2d 474 (2005)( Spotz I ). In order to place the Commonwealth's current
claims in context, some background is required.
The evidence adduced at Appellee's jury trial established that, on January 31, 1995, Appellee, who was on parole for a robbery conviction at the time, and his brother, Dustin Spotz, engaged in an argument at the home of their mother and stepfather in Clearfield County. The argument began when Dustin's fiancé e's teenage son placed a pet gerbil in front of Appellee's face while he was watching television, resulting in Appellee yelling at the child and threatening to physically harm him. This angered Dustin, and the argument escalated into a physical confrontation, during which Dustin stabbed Appellee twice in the upper back with a butter knife, slightly wounding him. In response, Appellee threatened to kill Dustin, and he proceeded upstairs, returning with a handgun. Appellee fired eight shots at Dustin, two of which fatally struck Dustin in the chest. After Dustin fell to the ground, Appellee leaned over him, spit on his face, and stated, " There you go, pussy."
Dustin's fiancé e tried to call the police; however, Appellee grabbed the phone and declared nobody could call anyone until he escaped the scene. Appellee put the handgun in his pants and attempted to retrieve the spent bullet shells from the kitchen floor. Appellee, along with his paramour, Christine Noland, then fled the house in a vehicle driven by Appellee's stepfather. Three days later, on February 3, 1995, the police apprehended Appellee at a motel in Carlisle, Pennsylvania.
Following his arrest and return to Clearfield County, Appellee was charged with first degree murder, third degree murder, voluntary manslaughter, aggravated assault, recklessly endangering another person, carrying a firearm without a license, and former convict not to own a firearm. Appellee took the stand at trial, claiming self-defense and defense of others, seeking an outright acquittal of the non-firearms charges. In his version of events, Appellee indicated that, after Dustin said he was going to burn down the house and kill the kids, Dustin went into the kitchen where their stepfather was sitting and began throwing furniture. N.T., Trial, 9/25/1995, at 69-70, 73-74. In response, Appellee rushed into the kitchen, tried to push Dustin into a corner, and exchanged blows with him. N.T., Trial, 9/25/1995, at 75. With Appellee holding him, Dustin reached into the dish strainer, grabbed a butter knife, and stabbed Appellee. N.T., Trial, 9/25/1995, at 76. Appellee ran out of the kitchen, went upstairs to
get his coat, which had a gun in the pocket, and returned to the kitchen where Dustin stood holding butter knives. N.T., Trial, 9/25/1995, at 81. Appellee admitted he told his stepfather to " get out of the way," and he fired two shots at the floor. N.T., Trial, 9/25/1995, at 83. Appellee indicated Dustin looked at him and stated, " You don't have any fuckin' hair on your ass to shoot me, Pussy." N.T., Trial, 9/25/1995, at 83. Appellee claimed Dustin had a butter knife in each hand and was about to attack him, his stepfather, and his mother, and therefore, he shot Dustin in defensive response. N.T., Trial, 9/25/1995, at 84-85.
On cross-examination, the prosecutor questioned Appellee about his failure to assist Dustin after shooting him, his flight, and his subsequent failure to report the shooting to the police on the night in question and to tell the police he was defending himself. The primary focus of the cross-examination was upon Appellee's conduct immediately after the shooting as demonstrated in the following relevant exchange:
Q: You were bleeding heavily?
A: I said my only concern was if I was going to die. I was bleeding, man. I was bleeding bad. I was hurting. I didn't know what was happening.
Q: But you didn't go to the DuBois Hospital; you didn't go to the Clearfield Hospital. Why?
A: When I was walking across the parking lot, Chris[tine Noland] start[ed] filling my head with a lot of stuff that just didn't make sense. To my knowledge and the way I remember, my brother wasn't dead when I left. He was still alive. He was on the floor. Everything— I mean, a lot of things I remember now that weren't clear when this stuff happened. You know. It was traumatic, you know, I was shocked. I didn't understand a lot of things for a long time.
She told me I killed my brother. I was on the run from parole. And if I went in the hospital, the cops would arrest me. Now, she had me scared. One, I didn't want to go back to jail for anymore nonsense like getting speeding tickets. And two, she said I killed somebody that I didn't know I killed, you know. And to me, I didn't kill him.
Q: And you didn't stick around to help your brother, either; did you?
A: I did what I could do.
Q: You didn't stay to report this to the authorities that night?
A: I went to the hospital, man. I was stabbed.
Q: You didn't go into the hospital?
A: I didn't say I went in. I went.
Q: Did you go back to Chestnut Grove to talk to the police?
Q: To tell them that you were defending yourself. Did you tell the police that?
A: I just believe I—
Q: Answer my question, sir. Did you tell the police that night that you were defending yourself?
A: I didn't talk to the police that night.
N.T., Trial, 9/25/1995, at 150-52.
Immediately after this exchange, the prosecutor followed up with two questions, which, although they did not specifically refer to Appellee's arrest, nevertheless were broadly phrased to encompass pre-arrest and post-arrest periods:
Q: Other than today, did you ever tell the police that you were defending yourself?
A: I never talked to the police to this day. They never asked me questions. They never asked me anything.
Q: The police never talked to you, or attempted to talk to you?
A: They said things to me. They never tried to question me. They put guns in my face and said if I ever walked the street, they'd hunt me down and kill me theirself [ sic ]. That's what the cops said to me.
N.T., Trial, 9/25/1995, at 152. Appellee's trial counsel did not object to either of these questions.
Moreover, during closing argument, the prosecutor argued to the jury the evidence revealed Appellee did not act in self-defense. The prosecutor specifically made reference to Appellee's conduct after the shooting, including his flight after the shooting and his failure to inform the police he shot Dustin in self-defense. The prosecutor also made the statements:
But, no, he came right back down [the stairs]. He came right back down. Another discrepancy in their claim of self-defense. Testimony was you mother F'n son of a bitch, you're dead. He said that. Does that sound like somebody in self-defense?
He never told the authorities that he was defending himself. Why? Because he fled. Does that sound like somebody who is defending himself and others, that he fled, didn't stay there to tell the police what happened? Does that sound like somebody who is defending himself or defending his family? No. Instead, he fled, he took off.
N.T., Trial, 9/26/1995, at 45-46. Appellee's trial counsel did not object to the prosecutor's closing argument.
With regard to the trial court's instruction to the jury regarding justification, the trial court charged the jury, in relevant part, as follows:
Now, justification generally. Conduct which the Defendant reasonably believes to be necessary to avoid a harm or evil to himself or to another is justifiable if the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged.
That means, that a person is permitted to use such force as is necessary, but no more, just as much force as is necessary, to prevent a harm or evil to himself or to another, a harm or evil that he reasonably believes to be necessary, to avoid a harm or evil to himself or to another. That is the general rule of justification.
The use of force upon or toward another person is justifiable when the Defendant reasonably believes that such force is immediately necessary for the purpose of protecting himself or another against the use of unlawful force by the other person on the present occasion, that it is immediately necessary to protect himself or another against the use of unlawful force by the other person on the present occasion.
That is the general rule of justification, members of the jury, or self-defense, the general rule. But this situation involves the use of deadly force. And you'll recall the Court's definition of deadly force. The use of deadly force is not justifiable under this, or any other section, unless the Defendant reasonably believes that such force is immediately necessary to protect himself or another against death or serious bodily injury.
Moreover, the Defendant cannot use deadly force if he knows that he can avoid the necessity of using such force with complete safety by retreating. The statute provides that if the Defendant is
in his own dwelling, as that has been defined for you, then he does not have to retreat before using deadly force.
If you find that this shooting occurred in the Defendant's dwelling, then he would be relieved from the necessity of retreating before using deadly force. If he was not in his own dwelling, if you find such, then he must retreat if he can do so safely before he can use deadly force.
Still on this matter of justification, members of the jury, the basic rule, as I said, is that a Defendant is justified in using force against another person if he reasonably believes he is in immediate danger of unlawful force from that person and reasonably believes it is necessary then and there immediately to use the force which he does to protect himself or another.
Again, folks, deadly force is another matter. If a Defendant employs deadly force to protect himself, his use of force must meet the following requirements, as well as the basic rule. The Defendant must reasonably believe that he is in immediate danger of death or serious bodily injury from the person against whom he uses deadly force, and must reasonably believe it is necessary then and there to use deadly force upon that person to protect himself, or another person.
The Defendant must have been free from fault in provoking or continuing the difficulty which led to the use of deadly force, and the Defendant must have violated no duty to retreat.
And, folks, whether or not the Defendant had a duty to retreat here depends upon your determination of whether these events occurred in the Defendant's dwelling, as that has been defined for you, or not. If it did occur in his dwelling, he had no duty to retreat. If it did not occur in his dwelling, then he did have a duty to retreat if he could do so safely.
Now, the Commonwealth has the burden of disproving the defense of justification. So you cannot find the Defendant guilty of any of these crimes unless you are satisfied beyond a reasonable doubt that the Defendant did not reasonably believe he was in immediate danger of death or serious bodily injury from Dustin Spotz, or that others were not in danger of death or immediate bodily injury from Dustin Spotz, or that the Defendant did not reasonably believe it was necessary then and there immediately to use deadly force upon Dustin Spotz to protect himself or another from death or serious bodily injury, or that the Defendant was not free from fault ...