Argued April 10, 2012
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Appeal from the Judgment of Sentence entered on September 18, 2008 in the Court of Common Pleas, Criminal Division of Greene County, at Nos. CP-30-CR-0000310-2006 and CP-30-0000458-2006 (PSM motions denied on November 5, 2009). Trial Court Judge: H. Terry Grimes, Senior Judge.
For Jeffrey Robert Martin, Appellant: Harry J. Cancelmi Jr., Esq.
For Commonwealth of Pennsylvania, Appellee: Linda Marie Chambers, Esq., Amy Zapp, Esq., PA Office of Attorney General.
MR. JUSTICE McCAFFERY. CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ. Former Justice Orie Melvin did not participate in the decision of this case. Mr. Chief Justice Castille, Messrs. Justice Eakin and Baer and Madame Justice Todd join the opinion. Mr. Justice Saylor files a dissenting opinion.
MR. McCAFFERY, JUSTICE
This is a direct appeal from a death sentence imposed after a jury convicted Appellant of one count of first-degree murder and other charges arising from the strangulation death of a twelve-year-old girl. The jury concluded, with respect to the circumstances of the murder, that the aggravating factors (committing murder to prevent testimony in a possible criminal proceeding regarding a felony and committing a killing in perpetration of a felony) outweighed the mitigating circumstances
(" character and record" ). Thus, the jury imposed a sentence of death.
The primary issues raised by Appellant concern whether the evidence was sufficient to support the jury's guilty verdicts for the additional charges of rape, sexual assault, and statutory sexual assault. Appellant argues that because there was insufficient evidence to prove that the killings had been committed during the perpetration of these felonies, the jury considered non-existing aggravating circumstances when it imposed the sentence of death. Appellant also challenges the ruling of the suppression court that allowed certain evidence to be presented against him at trial. For the reasons that follow, we affirm.
The facts, when viewed in the light most favorable to the Commonwealth as verdict-winner, show that on June 13, 2006, G.B., a twelve-year-old girl, was reported missing by her parents. Notes of Testimony (" N.T." ) Trial, 5/1/08, at 188, 197-98. The girl and her family lived in a rural corner of Pennsylvania, and she was reported missing on the day of her disappearance. Id. at 197-98. The Pennsylvania State Police immediately initiated a search that was later joined by the Federal Bureau of Investigation (" FBI" ), other agencies, canine units, and civilian searchers. Police interviews with neighbors and other witnesses revealed that G.B. had been riding her small all-terrain vehicle (" ATV" ) on the morning of her disappearance and was last seen heading in the direction of a neighboring horse and pleasure farm that she had previously visited with her parents' permission. Id. at 204, 211-12, 241. The owners of the farm were away that morning; however, their sole hired farmhand, Appellant, Jeffrey Robert Martin, was working alone there at the time. N.T. Trial, 5/5/08, at 872, 874. Among Appellant's duties was the collection and spreading of manure. N.T. Trial, 5/1/08, at 309.
On June 16, Appellant waived his right to counsel and agreed to be interviewed by agents of the FBI. He did not make any incriminating statements and was released. N.T. Trial, 5/5/08, at 699-701. However, late in the day on June 17, 2006, and four days after G.B. had been reported missing, her ATV was found partially buried in a creek bank and under a top layer of manure near a horse trail on the farm where Appellant had very recently spread manure as part of his duties. N.T. Trial, 5/1/08, at 58; N.T. Trial, 5/5/08, at 685-86, 747-48, 778. Appellant, who was working on the farm at the time, was immediately placed under arrest for tampering with evidence, giving false information, and hindering a police investigation (N.T. Trial, 5/5/08, at 714, 749, 800), and taken to an area of the farm near to where the ATV had been found. Id. at 566, 584. Appellant was advised of his Miranda rights and then told that searchers had found G.B.'s ATV. Id. at 572, 628, 637, 687, 749. At that point, Appellant stated to a state trooper that there were new trails " down there" and that he had spread manure in that area. Id. at 687, 750, 780. The trooper pointed out to Appellant that he had never told Appellant where the ATV had been found. Id. at 750. Nevertheless, Appellant stated that " she's not down there," and then denied that he knew where G.B was. Id. at 572, 688, 750, 781. Shortly afterward, Sergeant Kevin T. Kolson of the Pennsylvania State Police arrived on the scene, asked if Appellant had been read his rights, and, assured that he had been, asked Appellant where G.B. was, while jabbing his fingers into Appellant's chest. Id. at 750-51. Appellant did not respond. Id. at 629-30, 639, 751, 784. No
further questions were asked of Appellant at that time; however, he was then moved to a nearby area that was not as crowded with personnel searching for the missing girl. Id. at 751, 785. There, after the state troopers began questioning him, Appellant stated, " I think I need an attorney," and all questioning immediately stopped. Id. at 587, 645, 690-92, 717, 751-52, 785-86.
Appellant was returned to the area of the farm that was being used as a staging area for the search, and kept in the back seat of a patrol car while the state troopers continued their search and investigation of the site where the ATV had been found. Id. at 693, 707-08. Standing near the patrol car was a local constable who knew Appellant. The constable asked Appellant if he was ok. Id. at 670. Shortly thereafter, Appellant volunteered that he could save everyone some time, stating that only the ATV was down in the creek area, not G.B., and that she was somewhere else. Id. at 602, 671. The constable called to the nearby state troopers to inform them that Appellant had something to say. Id. at 602. Upon returning to the patrol car, the state troopers re-advised Appellant of his Miranda rights (Id. at 602, 678, 694-95, 754), transported Appellant back to the more quiet area of the search perimeter, once again advised Appellant of his right to remain silent and to consult with an attorney, and then requested that Appellant sign a written waiver of those rights as given him. Id. at 652-54, 696, 721. Appellant stated that he did not want to sign anything without consulting a lawyer. Id. at 696, 721. However, Appellant immediately volunteered that he been approached by a " fat, bald guy in a white truck," who offered him $100 to help bury an ATV. Id. at 573, 591-92, 696, 720, 755. The troopers perceived this statement to be a falsehood, became frustrated with Appellant, and returned with him to the staging area on the farm. Id. at 573, 591-92, 696-97, 721-22, 755-56.
There, the troopers, concerned about the safety of the missing girl, pleaded with Appellant to divulge the girl's whereabouts. Id. at 575-76, 602-03, 761. Appellant first stated that he could show the troopers where the girl's helmet and shoes were buried (Id. at 576, 761-62), and shortly afterward stated that he could show the troopers where G.B. was located. Id. at 762. Appellant told the troopers that they would need a backhoe to " recover" the girl. Id. at 578, 703, 726, 762. This statement confirmed that G.B. was dead -- until this point, the troopers had continued to treat the investigation as one involving a missing child.
Appellant led the troopers to a spot near where the ATV had been found and indicated that in one spot they would find the girl's helmet, and in another spot several feet away they would find her shoes. N.T. Trial, 5/1/08, at 68; N.T. Trial, 5/5/08, at 576-77, 702, 725, 762-63. At or about this time, Appellant volunteered that he had not molested the girl. N.T. Trial, 5/5/08, at 577, 595, 600, 762, 798-99. Appellant then stated that the girl's body was at a different location on the farm and pointed the troopers to an area which was near a burn pile. Id. at 703-04, 725, 763-64. Before being transported to the police station, Appellant stated to the troopers that he had spread lime on G.B.'s body before covering it with earth in order to interfere with the ability of search dogs to find the girl's remains. Id. at 578, 595-96, 600, 764.
After digging at the spot by the burn pile pointed out to them by Appellant, the officers found G.B.'s body buried more than five feet underground. N.T. Trial, 5/1/08, at 117-18, 149. They found that the girl's shirt had been pulled up to her armpits, and that her panties and jeans had been pushed down around her thighs and ankles. Id. at 149, 154; Commonwealth Exhibits 28-29, 31-32. Her body was indeed covered with lime, and two empty 50 lb. lime bags were found lying on top of her lime-covered body. N.T. Trial, 5/1/08, at 124-25, 149, 158, 172-78; N.T. Trial, 5/2/08, at 508; Commonwealth Exhibit 27. An autopsy subsequently revealed that she had been sexually assaulted and manually strangled. N.T. Trial, 5/2/08, at 389-96, 400-01, 407-08, 420-21; Commonwealth Exhibit 66.
After being taken to the Waynesburg State Police Station, Appellant was once again given his Miranda rights, but he agreed to waive them and signed a written waiver to that effect. N.T. Trial, 5/5/08, at 705, 731-34, 770; Commonwealth Exhibit 89. He then gave a confession that was tape-recorded. N.T. Trial, 5/5/08, at 727-29, 770; Commonwealth Exhibit 90. In his confession, he explained that on the morning of June 13, 2006, G.B. had appeared on the farm on her ATV and, for no apparent reason, according to Appellant, stated that she was going to tell her parents that he had just molested her. N.T. Trial, 5/5/08, at 706. Appellant then stated that he had " panicked" and grabbed at the child, who ran away down the driveway. Commonwealth Exhibit 90 (transcript of Appellant's recorded confession) at 2. Appellant was able to catch up with her and, once he did, " jumped on top of her" and placed his hands around her neck. N.T. Trial, 5/5/08, at 706, 794; Commonwealth Exhibit 90 at 2. Appellant stated that he choked G.B. until she stopped moving, which, he observed, " took a good while." N.T. Trial, 5/5/08, at 706-07, 796; Commonwealth Exhibit 90 at 2. He stated that he then went to get a farm vehicle called a mule, on which he placed the girl's body and took it to the area of the farm where the burn pile was located. N.T. Trial, 5/5/08, at 707; Commonwealth Exhibit 90 at 2. He then went back to the farm shed to retrieve a backhoe on which he placed two bags of lime. Commonwealth Exhibit 90 at 3. He returned to the burn pile site with the backhoe, dug a hole, placed the girl's body in the hole, and covered the body with the contents of two bags of lime. N.T. Trial, 5/5/08, at 707; Commonwealth Exhibit 90 at 3. He placed the used, empty lime bags in the hole, filled the hole with the backhoe, and smoothed the dirt on top to conceal the hole. N.T. Trial, 5/5/08, at 707; Commonwealth Exhibit 90 at 4. Appellant then took G.B.'s ATV, helmet and shoes to another area of the farm and buried the ATV in a hole near the creek that wound through the farm; he buried the helmet and shoes in two nearby locations. Commonwealth Exhibit 90 at 4. He also stated that he had had to flatten the tires on the ATV to make it fit in the hole he had dug, but that, even so, the vehicle remained unconcealed, so he returned to the ATV burial site with manure, which he piled and spread on top of the mostly buried ATV. N.T. Trial, 5/5/08, at 707-08; Commonwealth Exhibit 90 at 24-5. Appellant then returned the backhoe to the farm shed. Commonwealth Exhibit 90 at 5.
Appellant was charged with criminal homicide, aggravated assault, and four
counts of tampering with physical evidence. After the autopsy of G.B.'s body, however, evidence was detected that led to the filing of additional charges against Appellant: rape of a child, statutory sexual assault, aggravated indecent assault of a child, sexual assault, and abuse of corpse. A preliminary hearing on the initial charges was held on June 21, 2006, and the charges were bound over to court. Afterward, because of the autopsy findings, the Commonwealth filed a notice of aggravating circumstances. A preliminary hearing on the second set of charges was held on September 20, 2006, and all of these charges were similarly bound over to court. The cases were consolidated for trial.
Appellant filed an omnibus pre-trial motion, which was denied following a hearing. The jury trial commenced on May 1, 2008. In addition to the evidence of the police investigation and arrest of Appellant as outlined above, including Appellant's confession, the Commonwealth presented the testimony of Dr. Cyril Wecht, the forensic pathologist who had performed the autopsy on G.B.'s body. The Commonwealth also introduced into evidence Dr. Wecht's autopsy report. Dr. Wecht's findings led him to conclude that G.B. had died by manual strangulation. Additionally, Dr. Wecht testified that the body showed evidence, in the form of an area of acute or fresh hemorrhage, that G.B.'s vagina had been penetrated by a blunt object consistent with a penis. N.T. Trial, 5/1/08, at 388-89. Dr. Wecht opined that the injury had occurred " anywhere from just shortly before death or at the time of death or maybe an hour or two." Id. at 391. Although he could not exclude the possibility that the injury inside G.B.'s vagina could have been caused by some other type of blunt object, such as a finger or rounded pen, Dr. Wecht opined " with reasonable medical certainty, not absolute certainty but with reasonable medical certainty, that the most likely instrumentality or object that would have produced [the] injury would have been a penis," based on the coinciding evidence that G.B.'s pants and panties had been pulled down and that she had died by manual strangulation. Id. at 421-23.
After the Commonwealth presented its evidence, Appellant testified on his own behalf. Appellant explained that on the morning G.B. went missing, he had spied a white truck at the end of the farm driveway attended by a " young looking guy with long brown hair." N.T. Trial, 5/5/08, at 877. Appellant testified that this person stated that he had run out of gas and, in addition, he also had a four-wheeler (ATV) that he wanted to " get rid of for the insurance." Id. at 877. The person then offered Appellant $100 to help him dispose of the ATV, an offer that Appellant " really didn't think about" but " just went along with," offering to this stranger that " there might be somewhere ... where we could ... get rid of it." Id. at 877. Appellant then testified that as he backed his farm mule up to the rear of the truck in order to load the ATV onto it, he noticed that the man threw some other items onto the mule. Id. at 878. The two then purportedly discussed the need for shovels to bury the ATV; additionally, the man took an interest in the farm's backhoe that was in a shed and walked over to the shed to inspect it. Id. at 879. After the inspection of the backhoe, the man then purportedly climbed back onto the mule, which by now had the ATV on its back, and the two men drove the mule down the driveway, with a detour to obtain a shovel from the barn, and onto a horse trail to search for a place to deposit and bury the ATV. Id. at 881-82. The two found a spot, and with shovels, dug a hole. They then deposited the vehicle into the hole after flattening
the tires. Id. at 882-85. While Appellant was burying the ATV with dirt extracted from the hole, the man told Appellant that he had a helmet and a pair of shoes that he also wished to dispose of, which items apparently had accompanied the men on their ride on the mule. Id. at 885. The man instantly found nearby spots to dig holes, into which he deposited these items, while Appellant continued burying the ATV, peering at the man's activities through brush and small trees. Id. at 886.
Appellant then testified that when the two were riding back toward the man's truck, the man began throwing items such as a makeup kit and lighter onto the farm property from the mule, apparently without Appellant's protest. Id. at 887. The man then requested a gallon of gas from Appellant, which Appellant procured without question from the farm's shed. Id. at 887-88. Appellant went on to testify that when he later went over to the truck to retrieve the gas can from the man, Appellant spied in the passenger side of the truck a gray coat, from under which protruded " some hair and a hand," with a pair of legs " sticking over the seat down on to the floor." Id. at 889. When Appellant asked the man what it was he was seeing, the man responded that " there was an accident." Id. This information, according to Appellant, rendered him " scared and confused" so that he " didn't know what to do." Id. Purportedly at this point, Appellant stated that he did not want anything more to do with the man's needs or intentions. Id.
Appellant testified, however, that a discussion ensued between Appellant and the man about the backhoe in the shed, which discussion included Appellant mentioning that the key was not in the backhoe. Id. at 890-91. Appellant then stated that he resumed his work, although he remained scared and confused. However, as Appellant tended to his chores, he heard the backhoe start up. Id. at 889. The man then passed Appellant on the backhoe and made a further inquiry as to whether it was lime that he had seen in the shed. Id. at 892. When Appellant assured him that it was, the man then retrieved two bags of lime from the shed, again without Appellant's protest. Appellant resumed his work in the barn, as the stranger drove his employers' backhoe around the farm. Id. -93.
Apparently, at the point when he could no longer hear the backhoe, Appellant became curious and drove the mule up the farm road and met the man as he was getting off the backhoe. The man then stated to Appellant: " I'm going to take you up here and show you ... where I buried her at." Id. at 894. Appellant went with the man, the man showed Appellant where he had buried the body on the farm, and further volunteered that he had dug a six-foot hole, placed " her" in it, and placed lime and the empty lime bags on top prior to filling in the hole. Id. at 894-95; 1044-45. Appellant noticed that there was a small fire burning at the spot, in which fire the man stated he had placed a shirt, a pair of gloves, and a purse, further stating to Appellant that he should let the fire burn itself out. Appellant responded, however, that he could not let the fire continue to burn, although it was nearly out. At that point, the man got in his truck and left, without giving Appellant the promised $100 for the ATV disposal. Id. at 895. Appellant then put the backhoe away, resumed his work, and left about five or six in the afternoon. Id. at 896-97.
Appellant continued to testify that before he finished work and left the farm that day, the police and G.B.'s father had appeared on the farm in search of the missing G.B. Id. at 899-900. It was at
that point, Appellant testified, that he developed the thought that the body buried on the farm might be G.B. Id. at 900-01; 1012. Although interviewed by the police, Appellant provided no information at that time regarding the extraordinary events that had purportedly taken place on the farm that morning. Even as the State Police, the FBI, the family of G.B., and volunteers searched frantically on the farm and surrounding areas for the missing girl, Appellant went on with his chores. It was not until several days later, after he had been arrested and then " abused and tortured" by the police, that Appellant provided them with information about the man with a white truck. Id. at 967. Appellant admitted at trial, however, to telling the police as he was walking with them to show them the burial site of G.B., that he " never molested her ... or sexually assaulted her any way [sic]." Id. at 929; 1003. He testified further that he recognized the shoes that were buried on the farm as belonging to G.B. because they were " the shoes she always wore down to the barn" and that he had " seen them before." Id. at 900-01. Also, Appellant testified that the mysterious man had told Appellant that the shoes in his possession had belonged to G.B. Id. at 900-01.
On May 8, 2008, the jury returned guilty verdicts on all charges except for third-degree murder, and on the following day, it determined that Appellant should be sentenced to death. Thereafter, the trial court ordered an evaluation of Appellant by the Pennsylvania Sexual Offenders Assessment Board (" SOAB" ) because of his conviction for the sexual offenses. After this evaluation, Appellant's sentencing hearing was held on September 17, 2008, at which time the Commonwealth presented an expert witness on the issue of the applicability of " Megan's Law"  to Appellant. At the conclusion of the hearing, the trial court adjudicated Appellant to be a sexually violent predator, and sentenced Appellant to death for committing the offense of murder in the first-degree, and to twenty-three to forty-six years' incarceration on the other charges.
Appellant filed post sentence motions, which the trial court denied, and this direct appeal followed. Thereafter, upon court order, Appellant filed a statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant presents the following issues for our review, as set forth verbatim:
I. Where there was no eyewitness testimony, where there was no admission of sexual intercourse, where there was no evidence of seminal fluid[,] and where the forensic pathologist could not testify to a reasonable degree of medical certainty that there was evidence of penile penetration, was there sufficient evidence beyond a reasonable doubt to conclude that the defendant engaged in " sexual intercourse" as defined by 18 Pa.C.S.A. § 3101 and as an element of the crime of Rape in 18 Pa.C.S.A. § 3121(c) [rape of a child] or as an element of the crime of sexual assault in 18 Pa.C.S. § 3124.1 [sexual assault]?
II. Where there is not sufficient evidence of the crime of rape or sexual assault, is it error to charge the
jury that the jury could consider such evidence by incorporating it in the penalty phase of the proceeding?
III. Where a finding of being a sexually violent predator is based in part on the defendant's conviction for rape, sexual assault[,] and statutory sexual assault for which there is not sufficient evidence, should such a finding be set aside?
IV. Was it error for the trial judge to charge the jury that the jurors could consider the crime of rape, sexual assault, and statutory sexual assault as an aggravating circumstances [sic] to support a death penalty verdict?
V. Was the death verdict the product of a denial of [Appellant's] right to due process of law and a fair trial?
VI. Did the suppression court err in failing to find that [A]ppellant was denied his right to be free of unwarranted search and seizure and his right not to incriminate himself under the United States and Pennsylvania Constitutions when his pretrial suppression and other motions were denied and when such statements were admitted over objection at trial?
Appellant's Brief at 7 (Statement of Questions Involved).
First, we shall conduct this Court's automatic review of the sufficiency of the evidence to sustain the conviction for first-degree murder. Then, we shall address the above issues in a manner that roughly comports with the chronological unfolding of the trial process.
SUFFICIENCY OF THE EVIDENCE TO SUPPORT FIRST-DEGREE MURDER
In all capital cases, we have a self-imposed duty to conduct an independent review of the sufficiency of the evidence to sustain a conviction for first-degree murder. Commonwealth v. Flor,606 Pa. 384, 998 A.2d 606, 615 (Pa. 2010); Commonwea ...