Argued April 9, 2013.
Appeal from Secondary Type(s): Includes Lesser
Offenses the Judgment of Sentence entered on July 10, 2002 in the Court of
Common Pleas, Allegheny County, Criminal Division at CP-02-CR-0009056-2001.
Trial Court Judge: Jeffrey A. Manning, Judge.
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Michael James Healey, Esq., Healey & Hornack, P.C., Pittsburgh, for Kenneth Hairston.
Rebecca Good McBride, Esq., Allegheny County District Attorney's Office, Amy Zapp, Esq., PA Office of Attorney General, for Commonwealth of Pennsylvania.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
Appellant Kenneth Hairston was convicted of two counts of murder on April 12, 2002, and, following the penalty phase, was sentenced to death for each murder conviction. Appellant failed to file a timely post-sentence motion or a timely appeal, thereby waiving his individual claims of error. This Court, therefore, engaged solely in our limited, automatic review of death penalty cases, evaluating the sufficiency of the evidence to support the conviction and performing our statutory review of the sentence. Commonwealth v. Hairston, 603 Pa. 660, 985 A.2d 804 (2009). Following our affirmance of the convictions and sentence, Appellant moved for reinstatement of his direct appeal rights nunc pro tunc, which the trial court granted. See, e.g., Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999) (permitting the restoration of appellate rights nunc pro tunc as a remedy for counsel's ineffectiveness for
failing to file a direct appeal). Appellant now presents numerous claims of error related to his convictions and sentence. Upon consideration of these claims, we find no reversible error in the guilt or penalty phases of Appellant's trial, and affirm.
Because we have already engaged in a sufficiency review and found tat " the evidence of guilt was overwhelming," Hairston, 985 A.2d at 809, we provide the following facts solely as background.
On May 21, 2000, Appellant arrived at the apartment of his step-daughter, Chetia Hurtt, with a handgun he was not licensed to carry. When he was let into the apartment, Appellant threatened to kill Hurtt, her boyfriend, Jeffrey Johnson, who was also present, and himself. After Appellant demanded Mr. Johnson leave the apartment, he pointed the gun at Hurtt, pushed her down, and attempted to remove her clothes. Meanwhile, Mr. Johnson informed police about what was occurring, and the police responded immediately.
When they arrived at the apartment, they found Appellant, half-naked, and recovered his gun. As the police were bringing Appellant out of the apartment, he attempted to escape. During the course of the ensuing investigation, Ms. Hurtt informed police that Appellant had been assaulting her for years and making threats against her family. She agreed to press charges. As a result of these events, Appellant was charged with rape, attempted rape, attempted escape, and related crimes. According to Ms. Hurtt's subsequent testimony, following his arrest Appellant threatened to harm himself and his family if Ms. Hurtt revealed his past assaults and persisted in pressing charges.
As the time of Appellant's rape trial drew near, Appellant acted on his threats. On June 11, 2001, two weeks before his trial for assaulting Ms. Hurtt was scheduled to begin, he directed the school bus company of his autistic teenage son, Sean, not to pick him up for school. Later that day, firefighters responded to a report of smoke coming from the home Appellant shared with his wife, Katherine, Sean, and his wife's mother, Goldie Hurtt. When the firefighters gained entry, they discovered that the house was strewn with garbage and debris and the doors were barricaded. Once inside, they discovered Sean on the living room couch, and although they brought him out of the house alive, he later died at the hospital from blunt force trauma to the head. Firefighters discovered Katherine's body in the kitchen, and it was later determined that she too died from blunt force trauma to the head. Goldie Hurtt was rescued from the house, unharmed. Appellant was discovered in the kitchen with several self-inflicted puncture wounds to the neck and chest. When emergency responders removed him from the house, he was extremely combative.
At the hospital, Appellant indicated that he had killed his wife and started the fire, and that his motivation for doing so was anxiety and outrage over the pending rape allegations and imminent trial on these charges. Eight days later, on June 19, 2001, Appellant further explained that he bludgeoned his wife and son with a sledgehammer, left the house with the weapon and went to a local bar, where he consumed several drinks, and returned home. Upon his return, he spread debris around the house, barricaded the doors, and poured gasoline around the basement floor, which was ignited by the water heater.
He attempted to stab himself, and then lay down next to his wife's body. He explained that he intentionally piled debris around the house to fuel the fire and to " make sure that we were gone." Hairston, 985 A.2d at 807.
Appellant was charged with two counts of criminal homicide. Meanwhile, on December 14, 2001, Appellant was convicted of rape, sexual assault, burglary, attempted escape, and related charges resulting from his abuse of his step-daughter over a five year period from when Ms. Hurtt was fifteen to twenty-one, and from the charges for his conduct on May 21, 2000. At his murder trial, the Commonwealth argued that Appellant killed his wife and son to punish Ms. Hurtt for reporting to the authorities that Appellant held her at gun-point and attempted to rape her, and had raped her previously. At the penalty phase, the jury found two aggravating circumstances, and two mitigating circumstances.  Weighing these, the jury returned a sentence of death for both convictions, which the trial court imposed on July 11, 2002.
Following the expiration of time to file post-sentence motions, trial counsel moved to withdraw. After the time to file an appeal had expired, the trial court appointed new counsel on September 9, 2002. On January 14, 2003, appointed counsel moved to withdraw, before he had filed anything on Appellant's behalf. Current counsel entered an appearance on August 22, 2005. Upon counsel's request, on September 2, 2005, the trial court gave Appellant 45 days to file post-sentence motions, and eventually extended this time. Post-sentence motions were filed May 8, 2006. Following the Commonwealth's answer, the trial court denied Appellant's motions on June 2, 2008, and Appellant thereafter filed his notice of appeal to this Court on June 6, 2008.
On direct appeal, we determined that the periods during which Appellant was eligible to file either a post-sentence motion or an appeal had lapsed years earlier. See Pa.R.Crim.P. 720(A)(3) (" If the defendant does not file a timely post-sentence motion, the defendant's notice of appeal shall be filed within 30 days of imposition of sentence." ). Consequently, we held that Appellant's appeal period had already expired before he requested an extension of time to file post-sentence motions, and that all claims not associated with our automatic review of capital cases were not preserved. Hairston, 985 A.2d at 808. Based on our automatic review, we affirmed Appellant's conviction and sentence.
Following our decision, Appellant filed a petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. , arguing that prior counsel was ineffective for failing to file timely post-sentence motions and requesting the reinstatement of his appellate rights nunc pro tunc. The Commonwealth filed an answer conceding that prior counsel was ineffective. The court granted relief by permitting Appellant to file a notice of appeal nunc pro tunc. Appellant complied, raising numerous issues. In its responsive
brief to this Court, the Commonwealth makes no argument that the trial court's grant of nunc pro tunc relief was inappropriate. We will therefore proceed to address the issues Appellant has raised.
I. Arson Evidence
Appellant's first issue concerns the Commonwealth's guilt-phase evidence that Appellant intentionally set fire to his house after murdering his wife and son, where the Commonwealth had not charged him with arson. The trial court permitted the Commonwealth to introduce this evidence for two reasons: first, because it demonstrated malice by establishing that the deaths were intentional and not accidental; second, because it demonstrated Appellant's consciousness of guilt by establishing that the fire was a suicide attempt. See Commonwealth v. Sanchez, 416 Pa.Super. 160, 610 A.2d 1020 (1992) (holding that evidence that a person accused of a crime attempted to commit suicide is admissible because it is indicative of consciousness of guilt); Pa.R.E. 404(b)(2) (permitting evidence of a defendant's prior bad acts to prove " motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." ). The trial court explained to the jury that evidence of the fire was admitted not to show that Appellant was a person of bad character, but only to establish his state of mind at the time he acted.
Appellant argues that although the trial court decided to permit the Commonwealth to admit evidence of the uncharged arson pursuant to Rule 404(b)(2), it is not apparent from the record that the court ever engaged in the balancing test required by that rule, which provides that although prior bad acts may be admissible, " [i]n a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice." Pa.R.E. 404(b)(2). Appellant asserts that the trial court's failure to engage in this balancing test was an abuse of discretion.
Engaging in the balancing test he faults the trial court for omitting, Appellant argues that he was prejudiced by evidence of the fire because it tended to prove Appellant's guilt of arson, a crime for which he was not charged. According to Appellant, if the Commonwealth only wanted the jury to hear that Appellant had attempted suicide to demonstrate his consciousness of guilt, it could have introduced evidence of Appellant's self-inflicted stab wounds and his hospital confession that he had tried to kill himself, without prejudicing him with evidence that he also committed arson. Finally, Appellant contends that the trial court's jury instruction did not obviate its duty to evaluate the evidence's probative value and potential for unfair prejudice in the first instance.
The Commonwealth responds that evidence that Appellant set his house on fire after murdering his family was admissible to prove Appellant's intent and to show consciousness of guilt, as the trial court found, and, additionally, to furnish a complete story of the events. The Commonwealth argues that the fire evidence generally established that Appellant intended to conceal the commission of the murders and to escape their consequences, and demonstrated the detailed and deliberate manner in which Appellant acted on the day of the murders.
The trial court's decision to admit evidence is subject to review for an abuse of discretion. Commonwealth v. Dengler, 586 Pa. 54, 890 A.2d 372, 379 (2005). " An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support so as to be clearly erroneous." Commonwealth v. Dillon, 592 Pa. 351, 925 A.2d 131, 136 (2007); Grady v. Frito-Lay, Inc., 576 Pa. 546, 839 A.2d 1038, 1046 (2003).
Evidence of " other crimes, wrongs, or other acts" is inadmissible solely to show a defendant's bad character or his propensity for committing criminal acts. Pa.R.E. 404(b)(1); Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491 (1988). Such evidence is admissible, however, when relevant for another purpose, including motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. Pa.R.E. 404(b)(2); Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501, 534 (2005). This Court has also recognized the res gestae exception, permitting the admission of evidence of other crimes or bad acts to tell " the complete story." Commonwealth v. Williams, 586 Pa. 553, 896 A.2d 523, 539 (2006); Commonwealth v. Paddy, 569 Pa. 47, 800 A.2d 294, 308 (2002); Lark, 543 A.2d at 497. Such evidence may be admitted, however, " only if the probative value of the evidence outweighs its potential for unfair prejudice." Pa.R.E. 404(b)(2).
Evidence that Appellant set the house on fire was admitted through several witnesses who testified that they observed smoke coming from the house, were unable to kick in the door because Appellant had barricaded it, and, once inside, discovered garbage bags and debris everywhere, including on top of Sean. These witnesses explained that it was because of the fire that they were in the residence and discovered that Sean and Katherine had been bludgeoned, and that Appellant was found hurt but alive in the home. Appellant's actions in setting the fire were described by firefighters and experts who analyzed material at the scene, and a fire investigator who concluded to a reasonable degree of scientific certainty that the fire had been deliberately set. The jury also heard that Appellant explained to police shortly after the fire that he had been anxious because of his upcoming trial, and believed that if he went to prison it would be more than his wife and son could bear. According to Appellant's confession, he decided to kill his family and himself, and, in furtherance of this plan, bludgeoned them with a sledgehammer, set the house on fire, and attempted to stab himself to death.
We conclude that the trial court did not abuse its discretion when it held that the arson evidence of which Appellant complains was relevant and admissible. First, the evidence was admissible to show Appellant's intent to commit first-degree murder. Willful, premeditated, and deliberate intent to kill distinguishes first-degree murder from other criminal homicide. See 18 Pa.C.S. § 2502 (" A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing." ). The evidence described above that Appellant set his house on fire to ensure his family members' deaths was probative that Appellant was cognizant of his purpose throughout the entire day of June 21, 2000, and acted willfully, deliberately, and intentionally in accord with his purpose to kill his family.
Second, consistent with Appellant's statement that he piled items throughout the house to ensure that the fire killed everyone, Hairston, 985 A.2d at 807 (" I just wanted to make sure that we were gone." ), the testimony and exhibits concerning the fire were also admissible as evidence that Appellant attempted to take his own life, and was probative of his consciousness of guilt. See Commonwealth v. Homeyer, 373 Pa. 150, 94 A.2d 743 (1953) ( " Flight, manifestations of mental distress, fear at the time of or just before or just after discovery of the crime, an attempt to
commit suicide at such time, as well as evidence to prove motive, intent, plan or design are admissible." ); Commonwealth v. Giacobbe, 341 Pa. 187, 19 A.2d 71, 74 (1941) (holding that a jury had properly been allowed to consider two suicide attempts by the defendant following police interrogation because such attempts tended to establish consciousness of guilt).
Third, evidence of the fire was also relevant for res gestae purposes to explain the history and course of events on June 21, 2000, to explain how the victims' bodies were removed from the home, and to identify what evidence the police discovered at the crime scene. See Commonwealth v. Dillon, 592 Pa. 351, 925 A.2d 131, 139 (2007) (holding that res gestae evidence was admissible to explain the events surrounding the criminal conduct and resulting prosecution so that the case presented to the jury did not appear in a vacuum); Commonwealth v. Paddy, 569 Pa. 47, 800 A.2d 294, 308 (2002) (holding that evidence of prior crimes and the events that followed were admissible under the res gestae exception to the rule against admission of prior-crimes evidence); Commonwealth v. Brown, 52 A.3d 320, 332 (Pa.Super.2012) (" ... the history of the res gestae exception demonstrates that it is properly invoked when the bad acts are part of the same transaction involving the charged crime." ).
Moreover, we agree with the Commonwealth that the probative value of the fire evidence outweighed its prejudicial effect. The trial court is not " required to sanitize the trial to eliminate all unpleasant facts from the jury's consideration where those facts are relevant to the issues at hand and form part of the history and natural development of the events and offenses for which the defendant is charged." Lark, 543 A.2d at 501. Although evidence of the fire may have been prejudicial, it was not unduly so. See Commonwealth v. Dillon, 592 Pa. 351, 925 A.2d 131, 141 (2007) (" Evidence will not be prohibited merely because it is harmful to the defendant." ); Commonwealth v. Gordon, 543 Pa. 513, 673 A.2d 866, 870 (1996) (" Without doubt, the other crimes evidence would be prejudicial to Gordon. That is what it is designed to be. On the facts of this case, however, it is not unduly prejudicial, as it is required for the Commonwealth's case." ). As the comment to Rule 403 instructs, " ‘ [u]nfair prejudice’ means a tendency to suggest decision on an improper basis or to divert the jury's attention away from its duty of weighing the evidence impartially." Pa.R.E. 403 cmt. The arson evidence, introduced for legitimate purposes, was not so prejudicial that it likely diverted the jury's intention away from its duty of weighing the evidence impartially.
Additionally, when examining the potential for undue prejudice, a cautionary jury instruction may ameliorate the prejudicial effect of the proffered evidence. Pa.R.E. 404(b) cmt; Dillon, 925 A.2d at 141. Prior to the introduction of the evidence, the trial court provided a limiting instruction to the jury with regard to how the evidence of the arson should be considered, see Notes of Testimony (N.T.), 4/16/2002, p. 18-19, and again during the closing charge, id. 4/17/2002, p. 147-49, informing the jury about the limited purpose of the arson evidence. Jurors are presumed to follow the trial court's instructions. Commonwealth v. Baker, 531 Pa. 541, 614 A.2d 663, 672 (1992). The trial court's instruction minimized the likelihood that the arson ...