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[U] Commonwealth v. Fairman

Superior Court of Pennsylvania

February 7, 2014



Appeal from the Judgment of Sentence entered May 28, 2013, in the Court of Common Pleas of Indiana County, Criminal Division, at No(s): CP-32-CR-0001275-2012




Shaun Casey Fairman ("Appellant") appeals from the judgment of sentence imposed after a jury convicted him of second-degree murder, aggravated assault (serious bodily injury), burglary, and aggravated assault (bodily injury caused with a deadly weapon). Upon review, we affirm on the basis of the trial court's well-reasoned opinion.

We incorporate the following factual background:

The facts of this case, most of which the parties agree upon, are as follows. [ FN 1. The Commonwealth and [ Appellant] entered into a stipulation of facts and an additional stipulation of facts in which among other things [ Appellant] agreed to the following: (1) the cause of death of the decedent "perforating gunshot wound to the neck"; (2) the existence of the Protection From Abuse Order; (3) that on the date of the homicide [ Appellant] possessed a Stoeger Arms, single action revolver, Model 1873 Cattleman, caliber .45 Colt handgun and a Winchester bolt action rifle, Model Range, caliber 30.06 Springfield; (4) the fatal shot was fired by [ Appellant] from the .45 colt handgun.]
[ Appellant] and Jessica Fairman were husband and wife and at the time of this incident resided with their four (4) minor children at 5128 Route 210 Hwy. South, Smicksburg, Pennsylvania. This is a rural area located in North Mahoning Township, Indiana County. [ Appellant] and Jessica separated on May 10, 2012, with [ Appellant] vacating the marital residence.
On May 14, 2012, [ Appellant] was voluntarily committed to the Armstrong County Hospital pursuant to the Mental Health Procedures Act, 50 P.S. § 7101 et. seq. On the third day of his admission [ Appellant] was served with a temporary Protection From Abuse Order and Protection from Abuse Petition. The Petition for Relief had been filed by his wife on her behalf and on the behalf of the minor children. After receiving the Temporary PFA Order [ Appellant] indicated his desire to leave the hospital and he was released on Friday, May 18, 2012.
The hearing on the Protection From Abuse was held May 22, 2012. [ Appellant] and his wife were represented by counsel. An agreement was reached and a final Order was entered without an admission on [Appellant] 's part. The final order was for one (1) year and evicted [ Appellant] from the marital residence. Thereafter, [ Appellant] lived in a cam per at his parent's home.
Jessica also filed for divorce on May 30, 2012. [ Appellant] picked the Complaint up at the Post Office on Saturday, June 2, 2012. [ Appellant] was drinking heavily between the time of his release from the Armstrong County Hospital and the date of the shooting June 3, 2012.
After reading the divorce papers [ Appellant] traveled to Byler's Harness Shop and examined a 30.06 rifle. He inquired as to the time the shop closed and left. He later returned prior to closing and purchased the rifle.
He then traveled to the home of a friend William Troup. Mr. Troup was the owner of the weapon used to kill the victim Richard E. Shotts. There is a dispute as to whether Mr. Troup gave the gun to [ Appellant] or [ Appellant] stole the weapon. This conflict is of no importance as [ Appellant] admits he possessed and fired the gun and the jury found him not guilty of the receiving stolen property charge related to the gun.
After leaving Mr. Troup's home [ Appellant] traveled to the home of another friend Jeffrey Faulk. He left Mr. Faulk's home and traveled to the marital residence. I n his possession he had the .45 caliber Colt handgun obtained from Mr. Troup and the 30.06 rifle he had purchased earlier in the day. Both firearm s were loaded.
On June 2-3, 2012, Jessica Fairman was at the marital residence with two of the couple's children. Also present were her parents Richard E. Shotts and Candice Shotts. Mr. and Mrs. Shotts were present because of the concern that [ Appellant] would violate the PFA Order and appear at the residence. Mrs. Shotts was also present to help Jessica prepare for a birthday party for one of the children scheduled for the next day. Around 11: 30 p.m. Jessica and her two children went upstairs to go to bed. Mr. and Mrs. Shotts were sleeping on the couches in the living room on the first floor of the home.
After leaving Mr. Faulk's residence [ Appellant] traveled to the marital residence. He observed his wife's car in the driveway, as well as his in-laws' vehicles. He approached the home and walked up to the porch to the kitchen door, pounding on the door and demanding to see his wife. At that time he was armed with the Colt handgun and the 30.06 rifle.
Awakened by [ Appellant], Mr. Shotts entered the kitchen and engaged in conversation with [ Appellant] . The conversation was in regards to [ Appellant] 's desire to enter the residence and speak with his wife and Mr. Shotts' denial of these demands. At the time of this discourse Mr. Shotts was armed with a .22 caliber RG Industries double action revolver. Mr. Shotts was in the kitchen and [ Appellant] was outside on the porch. There was a conflict in testimony as to the lighting in the kitchen; however, it was clear that [ Appellant] knew Mr. Shotts was in the kitchen and could see him. There was a window in the kitchen next to the door through which [ Appellant] was able to see into the kitchen. Mr. Shotts had backed up away from the kitchen window and door. On a prior occasion [ Appellant] had forced the kitchen door. Mr. Shotts had repaired the door and "plated" the door making forced entry very difficult.
After being denied entry into the home [ Appellant] attempted to force the kitchen door without success. He then fired the Colt into the door in an unsuccessful attempt to gain entry. After [ Appellant] fired his weapon into the door Mr. Shotts fired the .33 caliber handgun into the wall between the kitchen window and the door. [ Appellant] then fired the Colt handgun through the kitchen window striking Mr. Shotts in the neck causing his death.
[ Appellant] then broke out the remaining portion of the kitchen window and crawled through the opening while in possession of both of his weapons. [ Appellant] then traveled through the kitchen past Mr. Shotts' body and climbed the stairs to the second floor in search of his wife.
After the first shot was fired Jessica called 911 to report the PFA violation. Jessica, her two children and Mrs. Shotts took refuge on the steps leading to the attic while Jessica positioned herself inside the attic door. At this time Jessica was arm ed with a New England firearms .22 caliber double action revolver.
When [ Appellant] entered the upstairs bedroom Jessica fired three (3) shots at [ Appellant] . One shot missed and two struck [ Appellant] in his shoulder. Jessica then held [ Appellant] at gunpoint until the Pennsylvania State Police arrived and took [ Appellant] into custody.
After being taken into custody [ Appellant] admitted that he fired the shot that killed Mr. Shotts. He claim ed that it was unintentional. He also stated that it was his intent to kill him self in the presence of his wife. I n addition, he stated that he wanted to scare his wife.

Trial Court Opinion, 9/ 18/ 13, at 4-8.

Appellant was charged with the aforementioned crimes. On April 3, 2013, Appellant's two defense attorneys m et with two assistant district attorneys. N.T., 4/ 16/ 13, at 2. Counsel entered into a plea agreement, which was memorialized in writing, and included language that the agreement was "subject to confirmation with the victims." Id. at 2-3. At 4:35 p.m. that same day, one of the district attorneys communicated to one of the defense attorneys that that the victim s "were in agreement." I d. at 4. The next morning, the wife of the decedent called the district attorney's office and indicated that she was " no longer in agreement" with the plea. I d. at 7-8. The district attorney promptly advised defense counsel. I d. at 8-9. Appellant filed and argued a motion to compel enforcement of plea agreement, which the trial court denied. The case proceeded to a jury trial and on April 25, 2013, Appellant was convicted of second-degree murder, aggravated assault (serious bodily injury), burglary, and aggravated assault (bodily injury caused with a deadly weapon). Appellant was sentenced to life without parole on May 28, 2013.[1] Appellant filed this timely appeal.

Appellant presents three issues for our review:

1. Did the trial court err in not granting [ Appellant's] Motion to Enforce Guilty Plea Bargain?
2. Did the trial court err in not granting [ Appellant's] Motion for Mistrial after the Commonwealth showed a gruesome photograph of the body of the deceased victim at the scene without any explanation or introduction?
3. Did the trial court err in not granting [ Appellant's] Motion for Mistrial after the Commonwealth elicited testimony from its witness that [ Appellant] knew where the county jail was located?

Appellant's Brief at 3.

Appellant properly raised his appellate issues in his Pa.R.A.P. 1925(b) statement of matters complained of on appeal, to which the trial court responded with a Pa.R.A.P. 1925(a) opinion. We have carefully reviewed the record, particularly the notes of testimony from the April 16, 2013 hearing on Appellant's motion to compel enforcement of plea agreement, and the notes of testimony from Appellant's April 23-25, 2013 jury trial. Upon review, we conclude that the trial court has ably analyzed and properly disposed of the arguments contained in Appellant's appellate brief. We therefore adopt President Judge Martin's September 18, 2013 trial court opinion as our own.

With regard to Appellant's first issue advocating enforcement of the plea agreement, we join the trial court in recognizing the authority of Commonwealth v. Mebane, 58 A.2d 1243, 1250 (Pa.Super. 2012), where we held that "the lower court did not abuse its discretion when it chose to enforce a plea agreement despite the Commonwealth's attempt to renege." Here, we find no abuse of trial court discretion where the trial court declined to enforce the plea agreement after determining that "fundamental fairness dictates" that the plea agreement not be enforced. Trial Court Opinion, 9/18/13, at 15. The trial court explained:

The agreement to the plea was given in the evening of [ April] third and in the morning of the fourth, as soon as the victim changed her mind, that was conveyed to defense. Therefore, there was no action in reliance upon that action taken. The notice was timely given. The Court obviously did not accept the plea pursuant to Rule 590 because we have not been in court on that. And what is also important is that this was the victim, the decedent's wife, expressing this reservation and revocation of the plea and there should be deference given to the victim in this matter. Also the case Mebane, I think is factually distinguishable here. There, and the trial court, and the Superior Court, found that there were unique circumstances in that case and fundamental fairness demanded that the plea arrangement be enforced. It was a drug case and there was a suppression hearing. The Judge made a decision on the suppression motion. However, for whatever reason, [ the decision] was not communicated to counsel for the defendant or counsel for the Commonwealth. A … trial had been scheduled some time in the future, [ and] the District Attorney became aware of the fact that the Judge had in fact made a decision in the suppression matter and armed with that and knowing that the defense did not know about that ruling then … attempted to withdraw the plea bargain as made. And the trial judge at that point found based on those circumstances that it would be a violation of fundamental fairness and found in the interest of justice that the plea should be enforced. And the Superior Court agreed. We don't have that here.

N.T., 4/ 16/ 13, at 10-11.

Significantly, during the hearing on Appellant's motion to compel enforcement of plea agreement, Appellant's counsel stated, "Our argument today, Judge, is only that based on the case law in the Mebane case … that case gives the court discretion, judicial discretion … And we are not arguing specific performance but that the Court has the discretion to accept the plea that was offered and accepted if the Court believes that it is in the best interest of justice." I d. at 6. Clearly, the trial court in this case acted within its discretion in declining to enforce the plea agreement, where the trial court concluded that enforcement was not in the interest of justice.

With regard to Appellant's second and third issues concerning his request for a mistrial, we again recognize the trial court's discretion. We review the trial court's decision to deny a mistrial for an abuse of discretion.

Commonwealth v. Boone, 862 A.2d 639, 646 (Pa.Super. 2004). A mistrial is necessary only when "the incident upon which the motion is based is of such a nature that its unavoidable effect is to deprive the defendant of a fair trial by preventing the jury from weighing and rendering a true verdict." Commonwealth v. Parker, 957 A.2d 311, 319 (Pa.Super. 2008), appeal denied, 966 A.2d 571 (Pa. 2009). A mistrial is inappropriate where cautionary instructions are sufficient to overcome any potential prejudice. Id.

Here, the trial court rejected all three of Appellant's legal arguments and explained its reasoning in its September 18, 2013 opinion. Upon review of the record, and mindful of our standard of review, we find no abuse of discretion by the trial court and incorporate its opinion as our own.

Judgment of sentence affirmed.

Judgment Entered.

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