Argued September 15, 2011.
[Copyrighted Material Omitted]
Appeal from the Judgment of Sentence entered on May 28, 2009 in the Court of Common Pleas, Berks County, Criminal Division at No. CP-06-CR-0002456-2008 (PSM's denied on January 31, 2011).
For Albert Perez, APPELLANT: William Charles Bispels Jr., Esq., Eric E. Winter, Esq., Missan Law Offices.
For Commonwealth of Pennsylvania, APPELLEE: John T. Adams, Esq., Alisa Rebecca Hobart, Esq., Berks County District Attorney's Office; Amy Zapp, Esq., PA Office of Attorney General.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ. MR. JUSTICE EAKIN. Former Justice Orie Melvin did not participate in the decision of this case. Mr. Chief Justice Castille, Mr. Justice Baer, Madame Justice Todd and Mr. Justice McCaffery join the opinion. Mr. Justice Saylor files a dissenting opinion.
MR. EAKIN, JUSTICE.
This is a direct appeal from two death sentences imposed by a jury upon Albert Perez following his convictions of first degree murder and abuse of corpse. We affirm.
On the morning of January 15, 2007, Liz Ruiz received an email which purportedly came from her sister, Duceliz Diaz-Santiago, with whom appellant had previously been romantically involved. The email stated Diaz-Santiago was " doing something today that [sic] will affect [sic] us all," Trial Court Opinion, 1/31/11, at 5 (citation omitted), then claimed appellant's ex-wife's boyfriend had raped Diaz-Santiago while the ex-wife watched. The email asked Ruiz to kill appellant's ex-wife and her boyfriend, but leave appellant alone because it was not his fault, and professed love for appellant. The message concluded by stating, " [I'm] sorry it has to be this way everyone, but this is what iv [sic] wanted to do for a very long time [sic][.]" Id. (citation omitted).
Concerned by the message, Ruiz went to the apartment where Diaz-Santiago lived with her five-year-old daughter, Kayla. When Ruiz arrived, her mother was already there, but the two women could not get into the locked apartment. Ruiz's husband arrived and kicked the door down. When he entered the apartment, he saw Kayla's body hanging from a railing in the bathroom. The police were summoned and checked the rest of the apartment, finding Diaz-Santiago's body lying face up in a closet doorway. A pair of pajama bottoms was tied around the neck of Kayla's body, and the towel rack from which her body was suspended took little effort to remove from the wall, indicating the body was in a resting state when it was hung there. Part of a power cord was wrapped around the neck of Diaz-Santiago's body, not tied or fastened, and a second portion of cord was found on the closet's clothes bar. The clothing on Diaz-Santiago's body was not bunched up but was perfectly flat.
These details caused police to suspect the deaths were not the murder-suicide scenario the posing of the bodies imitated. Police collected forensic evidence, including seminal fluid from Diaz-Santiago's clothing, bedding, and body cavities, a swabbing of a wound on her left arm, and fibers found in Kayla's hair and pajama bottoms. The fibers fluoresced pink when viewed under an alternate light source.
Two days later, appellant waived his rights and gave police his first statement. He indicated he had been romantically involved with Diaz-Santiago, but the relationship ended a year before. Appellant
stated that when he lived with Diaz-Santiago, Kayla had known him as " daddy," and he had completed paperwork to obtain custody of her. He stated he had not spoken with either victim in the past two months. Appellant claimed he drove his current girlfriend to work in her blue Honda on the morning of the murders, then returned home and went to bed. The girlfriend's family, with whom appellant lived, provided him with an alibi, stating he was at home during the relevant time period.
The ongoing police investigation revealed the cause of Diaz-Santiago's death was asphyxiation due to ligature strangulation, and the manner of death was homicide; police reconstruction revealed it would have been impossible for the body to have landed the way it was found, had the manner of death been suicide. Likewise, the cause of Kayla's death was ligature strangulation, and the manner of death was homicide; the police investigation determined the pajama leg that cut off her air supply could not have become tight enough to strangle her simply from the weight of her body.
Later in January, appellant gave police a second statement after waiving his rights. He denied seeing Diaz-Santiago on the day of the murder, which was a Monday, but said he saw her outside of her workplace the previous Friday. He said he had been waiting for her in his car, and she wanted to have sex with him, so they had unprotected sex in the front seat. When confronted about a blue car seen headed towards Diaz-Santiago's apartment the morning of the murder, appellant said he was not in that part of town that day, but he supposed the car could have been stolen, and continued to deny his involvement. He admitted he shared an email account and an America Online handle with Diaz-Santiago, but said she changed the password when they broke up and he had not used the account since. He also stated he believed she had " d[one] this because of him." N.T. Trial, 5/12-15/09, at 129.
Police obtained a search warrant for the blue Honda, as well as video footage from a carwash near the victims' apartment showing a similar vehicle traveling towards the apartment the morning of the murders and away from it about three hours later; the occupant of the vehicle and its license plate could not be ascertained. A pair of black driving gloves was recovered from the car, as well as fibers from the rear floor mat which fluoresced pink or orange, similarly to those found on Kayla's body. Pursuant to a warrant, police searched the residence where appellant lived and found a Walmart bag containing video games in the closet of his bedroom. A Playstation video game console was also recovered, which bore the same serial number as an empty Playstation box found in the victims' apartment. Diaz-Santiago's family gave police a photograph showing a Playstation console underneath her television in the bedroom; the same space in the bedroom was unoccupied following her death.
Appellant gave police a third statement in January, after again waiving his rights. This time, he admitted he was at the victims' apartment the morning of the murders, after he took his girlfriend to work. He claimed Diaz-Santiago met him at the door in lingerie and he asked her to change, telling her their relationship was over and he no longer wanted to pay child support for Kayla. Appellant stated Diaz-Santiago gave him his things, putting his Playstation console in a plastic bag, and he went home and went back to bed. He denied having sex with Diaz-Santiago or having any contact with Kayla. When asked if something happened at the apartment that would lead him to kill Diaz-Santiago, appellant replied no.
Three months later, appellant waived his rights again and gave police a fourth statement, now claiming Diaz-Santiago answered the door in lingerie, grabbed his hand, and took him to the bedroom, where they had sex. He said she showed him some photos on her computer, and he touched the mouse to scroll through them. When his girlfriend called him twice, he took the second call in the bathroom and told her he was at home watching television, and then told Diaz-Santiago he had to leave. She gave him his Playstation console and told him she would see about removing him from child support. According to appellant, he said goodbye to both victims and left before noon. He claimed it had been Diaz-Santiago's idea for them to meet that morning.
However, police discovered an instant-message conversation between Diaz-Santiago and a co-worker from the Friday before the murders, in which Diaz-Santiago said it was appellant's suggestion they meet; he had been waiting outside her workplace that day and tried to persuade her to take Monday off so he could spend the day with her and Kayla; he wanted to talk to her about resuming their relationship. Diaz-Santiago expressed ambivalence to appellant, her co-worker, and an additional friend about whether this was a good idea. The friend thought it was odd that appellant wanted Kayla to be present because he rarely asked about her when he called Diaz-Santiago. Diaz-Santiago told her friend and her sister that she planned to be home with Kayla on Monday when appellant came over.
A week later, appellant gave a fifth statement to police after waiving his rights. This version was consistent with his second statement -- he met Diaz-Santiago at her workplace the Friday before the murders -- except he denied having sex with her in the car, and further claimed it was Diaz-Santiago's idea that they meet on Monday to discuss child support. He reiterated his admission in his fourth statement that he went to the victims' apartment in the blue Honda. He maintained Diaz-Santiago initiated unprotected sex after she answered the door in lingerie; she requested they resume their relationship, but he declined. He stated while he was on the phone with his girlfriend in the bathroom, Kayla woke up and Diaz-Santiago fed her, then Diaz-Santiago gave him his belongings, which included the Playstation console, told him not to come back, and that she would take care of the child support issue; he then left.
Though appellant specifically denied killing the victims, police asked if this was something he had planned all weekend; he said no. When police suggested something must have happened during the visit that caused this, appellant initially did not respond, but then agreed something happened. The questioning officer asked, " [S]o[,] what you're telling me is something happened in that apartment that caused you to snap and that's what caused you to kill her[?]" Id., at 398. Appellant nodded affirmatively, and moments later said Diaz-Santiago became angry when he refused to stay. His next few exchanges with the officer were focused on his concern that if he said anything more, he would not be going home, and he said he needed to talk to his girlfriend before saying anything more. When the officer confronted appellant with his belief that appellant killed Diaz-Santiago and whoever killed her also killed Kayla, appellant denied killing Kayla and then refused to say more until he spoke to his girlfriend.
One week later, appellant was arrested for the murders and gave a sixth statement to police, first orally and then in writing. He claimed that moments after he left Diaz-Santiago's apartment, she
yelled out the window for him to come back. He said when he did, he saw Kayla lying dead on the bed. He and Diaz-Santiago began arguing; appellant claimed Diaz-Santiago said if she could not have him, no one else could. He said he grabbed a cord and wrapped it around her neck; after about a minute, she went limp and fell to the floor. Appellant said he went outside to smoke and call his girlfriend, and he put on black, baseball-type gloves before going back inside. He wrapped a pajama leg around the neck of Kayla's body and hung it from the bathroom rack, then tried to make it look like Diaz-Santiago had hung herself in the closet, but the closet bar snapped and the body fell to the floor, where he left it.
At trial, the Commonwealth presented the testimony of numerous experts and laypersons to establish the events leading up to the murders, to explain how the murders occurred, to show appellant's motive, and to disprove appellant's claim that Diaz-Santiago killed Kayla. Among the witnesses presented was an inmate who met appellant while they were both in county prison. The inmate testified appellant asked him, " [W]hat's going to happen to me when I go to prison and they find out I killed the little girl, too[?]" Id., at 448. He further stated when he spoke to appellant about pleading guilty, appellant said he was probably going to get five to ten years in prison for killing the child's mother. Id.
Appellant's ex-wife testified she and appellant had four children, over whom they constantly battled about support. She denied ever watching her boyfriend rape Diaz-Santiago, contradicting the email purportedly sent by Diaz-Santiago to Ruiz. Her boyfriend also testified he did not rape Diaz-Santiago and had never even met her.
The county domestic relations office confirmed the support dispute between appellant and his ex-wife, and noted the records showed appellant acknowledged paternity of both Kayla and his fourth child with his ex-wife around the same time. After a final support order was entered for his children with his ex-wife, appellant sought and obtained modification of support for all of his children. He then sought additional modification of his support for Kayla, recanting his acknowledgement of paternity for her; his support obligation for her was terminated following her death.
A forensic linguistics expert who compared the purported " suicide email" with known writings of appellant and Diaz-Santiago testified there were similarities between the email and appellant's writings. The expert concluded the email was a " Post Offensive Manipulation of Investigation Communication[,]" id., at 320, made during or after the crime with the intent that it end up in the hands of the media or criminal justice system, for the purpose of suggesting a suspect and manipulating the investigation.
A psychiatric expert testified nothing in his review of the evidence pointed to Diaz-Santiago being inclined to murder her daughter. The expert further testified appellant's claim -- that Diaz-Santiago told him if she could not have him, no one else could -- did not make sense from a psychiatric perspective, as " [t]ypically that sort of statement is made in the context of an aggressive act toward the person who is leaving ... [a]nd ... it's much more common ... to be heard ...coming from a guy toward a woman." Id., at 334.
Diaz-Santiago's family and friends testified she was a good mother and would never hurt Kayla, who " was her life[.]" N.T. Trial, 5/6/09, at 77-78. The physician who performed the autopsies also reviewed Kayla's medical records and testified he
saw no evidence of abuse or neglect of Kayla by Diaz-Santiago.
A member of the state police forensic services unit who was present at both victims' autopsies testified concerning the items collected from their bodies. Specifically, this witness noted fibers recovered from the gloves found in the blue Honda, as well as from the floor mat of the car, had the same reaction to ultraviolet light as the fibers found on Kayla's body. A dragon figurine found in the trunk of appellant's car also contained a fiber which fluoresced under the same wavelength of light as those found on Kayla's body.
A trace evidence expert from the state police crime lab, who analyzed the two pieces of electrical cord found at the crime scene, testified the pieces matched and were previously one piece. This expert also confirmed the fibers found in Kayla's hair and on her pajama bottoms matched the microscopic characteristics of those found in the trunk of appellant's car, though he was unable to conclusively determine whether they shared a common origin.
An expert serologist from the state police crime lab testified she identified seminal fluid in Diaz-Santiago's body cavities, as well as on her bedding and underwear; the semen collected from the body indicated sexual contact occurred within 24 to 25 hours prior to collection. A state police expert testified the DNA from appellant's blood matched that of the semen collected from Diaz-Santiago's body and underwear. His analysis of the DNA profile taken from a swab of a wound on the body's forearm revealed it was consistent with a " mixture[,]" N.T. Trial, 5/12-15/09, at 275, of which appellant and Diaz-Santiago could not be excluded as potential contributors. The DNA profile obtained from a swab of the outside of the gloves recovered from the blue Honda was also consistent with a mixture, but the DNA profile from the swab's major component matched Diaz-Santiago's DNA. A swab from the inside of the gloves revealed a DNA mixture, of which appellant and Diaz-Santiago could not be excluded as potential contributors. The DNA collected from the portion of the cord tied to the closet bar could not be interpreted because there was an insufficient amount of it present; this was consistent with the person who handled the cord having worn gloves.
An expert in forensic pathology, who reviewed the autopsy records and appellant's police statements, testified appellant's version of how he briefly strangled Diaz-Santiago until she merely passed out, later dying, was not medically possible; one minute of pressure around the neck would have been insufficient to kill her, as the ligature must be held long enough to cause brain stem damage for death to occur. According to the autopsy report, Kayla's stomach was empty, contrary to appellant's statement that Diaz-Santiago fed her before he left. The expert also refuted appellant's claim that Diaz-Santiago killed Kayla while appellant was outside, stating it would not have been possible during that brief time.
The jury found appellant guilty of two counts each of first degree murder and abuse of a corpse. At the penalty phase, the Commonwealth presented evidence in support of one aggravating circumstance regarding Diaz-Santiago's murder: appellant was convicted of another murder committed before or at the time of the instant offense. 42 Pa.C.S. § 9711(d)(11). Regarding Kayla's murder, the Commonwealth presented evidence in support of the same aggravating circumstance, as well as the aggravating circumstance in ...