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Commonwealth v. Burno

Supreme Court of Pennsylvania

February 22, 2017


          ARGUED: May 11, 2016

         Appeal from the Judgment of Sentence entered on 3/6/2007 in the Court of Common Pleas, Lehigh County, Criminal Division at No. CP-39-CR-0003637-2003.



          WECHT, JUSTICE

         On March 6, 2007, Junius Burno was convicted on two counts of first-degree murder, 18 Pa.C.S. § 2502(a), and sentenced to death. In this direct appeal from the Court of Common Pleas of Lehigh County, Burno challenges the admissibility of his confession to the murders, the sufficiency of the evidence, the alleged denial of his right to a speedy trial, and the admissibility of certain evidence establishing an aggravating factor for purposes of the death penalty. We reject all but one of these challenges on the merits. We find merit to Burno's argument that one of his statements to police was inadmissible because it was obtained during the course of plea negotiations. However, we ultimately conclude that the erroneous admission of this statement at trial was harmless. Consequently, we affirm Burno's death sentence.

         On April 13, 2003, two men entered an apartment in Allentown, Pennsylvania and proceeded to shoot and kill Carlos Juarbe and Oscar Rosado. The investigation that followed eventually led the Allentown Police to arrest Terrance Bethea for the murders. Soon thereafter, Bethea implicated Burno in the shootings. On September 12, 2003, Burno surrendered to the police and was arrested. Burno elected not to speak with the police about the murders without counsel. Burno then retained the services of Glennis Clark, Esquire. In the weeks that followed, Burno provided the police with multiple inculpatory statements regarding the murders.

         Attorney Clark arranged a September 24, 2003 meeting with the police and assistant district attorney ("ADA") Maria Dantos. On that date, Burno and Attorney Clark met with Detective Wayne Simock, Detective John Miller, and ADA Dantos in the law library of the Lehigh County District Attorney's Office. At the inception of the meeting, Detective Simock and ADA Dantos detailed the rules applicable to Burno's cooperation. Specifically, ADA Dantos explained to Attorney Clark and to Burno that Burno was required to tell the truth about what had happened on April 13, 2003, and would need to testify against Bethea at Bethea's preliminary hearing and trial. In exchange, ADA Dantos promised that she would not seek the death penalty against Burno. However, if the negotiations fell through or broke down for any reason, any statements that Burno had made would be used against him at a future trial. Burno and Attorney Clark both agreed to these terms. Burno then spoke about the murders for approximately two hours. The conversation was not recorded.

         During this conversation, Burno identified the locations of the two guns that he and Bethea used during the murders. Detectives Simock and Miller then took Burno to the police station to record his statement. On the way, they stopped to retrieve the secreted guns. Once at the police station, Detective Simock provided Burno with Miranda[1] warnings. Burno then repeated his statement, which was tape-recorded. In this statement, Burno claimed that he drove Bethea to Juarbe's apartment to trade guns for drugs, but asserted that Bethea was the only person to enter the apartment. Burno stated that he remained in the car at all times.

         The police and ADA Dantos did not believe Burno's statement. ADA Dantos conferred with Attorney Clark about these suspicions. ADA Dantos and Attorney Clark agreed that, in order to test the veracity of his statement, Burno should submit to a polygraph test. On September 26, 2003, police officer Keith Morris met with Burno, provided Miranda warnings, and administered the polygraph test. Although he had known about the polygraph examination and consented to it, Attorney Clark was not present for the examination itself. Typically, at the end of a polygraph examination, Officer Morris would take some time and review the results. However, Officer Morris did not find that necessary in this case inasmuch as he detected immediately that Burno's statement was not truthful. Officer Morris then informed Burno that he had failed the polygraph test. Burno stared at Officer Morris, and stated that no one could save him at that point. Officer Morris responded by telling Burno that he did not believe that no one could save him. Officer Morris then told Burno that, generally, telling the truth is a way that a person in his position could help himself.

         After pondering Officer Morris' statement briefly, Burno asked to speak with Attorney Clark. However, Attorney Clark was unavailable at that time. After being advised of the results, ADA Dantos proceeded to the interview room to inform Burno, who was crying and upset, that authorities were attempting to contact his attorney. Burno apologized to ADA Dantos for lying, and expressed remorse for his actions. ADA Dantos reminded Burno that, because he was not truthful, the parties no longer had a deal to forego the death penalty. ADA Dantos explained to Burno, however, that if he was truthful from that point on, the parties could recommence plea discussions. She emphasized that he had to tell the truth and that, at that point, there was no deal on the table. Hearing that, Burno told ADA Dantos that he was remorseful and that he would have to face the consequences for his crimes.

         Eventually, ADA Dantos was able to reach Attorney Clark by telephone. Attorney Clark then spoke with Burno over the phone. Attorney Clark agreed to come to the police station, but could not get there for some time. Nevertheless, Attorney Clark authorized the police to commence discussions with Burno before he arrived, in part because he believed that Burno could not do any more damage than he already had done by lying.

         Burno met with Detective Simock and Detective Joseph Effting, even though Attorney Clark had not yet arrived at the police station. The detectives once again provided Burno with Miranda warnings. In the ensuing statement, Burno admitted that he and Bethea went to Juarbe's residence, knowing that Juarbe was a drug dealer, and intending to rob Juarbe to settle a dispute that Bethea had with Juarbe. Burno admitted that he got into a scuffle with Rosado, and then shot him with a nine millimeter handgun. After Burno provided additional details surrounding the murders, Attorney Clark arrived at the station and knocked on the door of the interview room.

         Once Attorney Clark was seated and had spoken to Burno, Detectives Simock and Effting continued the interview. Much of this portion of the interview involved reviewing parts of what Burno had stated before Attorney Clark arrived. Among other points, Burno again admitted that he had participated in the murders.

         At the conclusion of the interview, Detective Simock reminded Burno that, for the authorities to consider taking the death penalty off the table, Burno's statement had to be truthful and Burno had to testify against Bethea. However, on October 28, 2003, the day before Bethea's preliminary hearing, Burno informed Detective Simock and ADA Dantos that he no longer was willing to cooperate in the prosecution of Bethea. In addition to removing the death penalty from consideration, Burno wanted his homicide charges reduced to third-degree. ADA Dantos would not make that deal, and, in light of Burno's decision not to cooperate, indicated to Burno and Attorney Clark that there would be no agreement. She informed them that she would be seeking the death penalty against Burno.

         Prior to trial, Burno filed numerous motions to suppress the statements that he provided to the police. Among his claims for relief, Burno maintained that: (1) the warrant for his arrest lacked probable cause, and any resulting statements were fruit of the poisonous tree; (2) his statements were coerced by Officer Miller during the polygraph examination; (3) his statements were inadmissible because they were made during the process of plea negotiation; and (4) the September 26, 2003 statements were involuntary because Attorney Clark was not present for the first portion of the statement, and the second portion of the statement was tainted unconstitutionally by Attorney Clark's absence during the first part. After an evidentiary hearing, and in two separate orders, the trial court denied Burno's motions to suppress his statements on all points except the argument relative to the first portion of the September 26, 2003 tape-recorded confession. Because Attorney Clark was not present for that part of the statement, the trial court suppressed that portion of the statement. However, because Attorney Clark arrived for the second portion, the court ruled that portion to be admissible.

         Because of ADA Dantos' involvement in obtaining Burno's confessions, and believing that she might be a material witness at trial concerning the voluntariness of the confessions, Burno filed a pre-trial motion for the assignment of a new prosecuting attorney. On April 18, 2005, the trial court granted the motion in part, relegating ADA Dantos to serve as second chair at Burno's trial instead of as the lead prosecutor. The Commonwealth filed a motion seeking reconsideration, which the trial court denied. On April 21, 2005, the Commonwealth filed a notice of appeal from the order denying its motion for reconsideration.

         In its notice of appeal, the Commonwealth did not expressly invoke Pa.R.A.P. 313, which governs appeals of collateral orders. Nonetheless, the Commonwealth set forth the terms of the rule and explained that the order was "separable and collateral to the main cause of action, the right involved is too important to be denied review, and the question presented is such that if review is postponed until final judgment, the claim will be irreparably lost." See Notice of Appeal, 4/21/2005, ¶2. Notably, the Commonwealth did not certify that the order terminated or substantially handicapped its prosecution pursuant to Pa.R.A.P. 311(d).

         In the interim, both parties sought permission to file an interlocutory appeal, contending that the issue involved a controlling issue of law upon which a substantial basis for difference of opinion existed. See 42 Pa.C.S. § 702(b). The trial court granted permission to both parties.[2] However, the Superior Court denied permission to appeal upon that basis. See Commonwealth v. Burno, Nos. 39 and 47 EDM 2005 (July 6, 2005) (per curiam).

         The Superior Court accepted the Commonwealth's earlier appeal from the denial of the motion for reconsideration. In an unpublished memorandum, the court reversed the trial court's decision. See Commonwealth v. Burno, No. 1084 EDA 2005, slip op. at 1, 6 (Pa. Super. Apr. 21, 2006). The Superior Court alluded briefly to the requests for permission to file interlocutory appeals, but never explained the basis for its jurisdiction. Id. at 3 n.4. On the merits, the court held that, because it was Burno and not the Commonwealth who would call ADA Dantos as a witness at trial, the trial court erred in forcing ADA Dantos to serve as second (instead of first) chair in the prosecution. Id. at 6 (citing Commonwealth v. Willis, 552 A.2d 682, 696 (Pa. Super. 1988) (recognizing an exception to the general rule that an attorney cannot prosecute a case and be a material witness in the same proceeding when it is the other party that is calling the attorney as a witness)).

         The appeal delayed the proceedings for one year. Burno filed a pre-trial motion to dismiss the charges against him pursuant to Pa.R.Crim.P. 600, alleging that he was denied his right to a speedy trial because the Commonwealth's appeal lacked a jurisdictional basis. Burno maintained that, because the Commonwealth did not demonstrate that the trial court's order was, in fact, a collateral order, and did not certify that the appeal terminated or substantially handicapped the prosecution pursuant to Pa.R.A.P. 311, the Superior Court never had jurisdiction to rule upon the appeal. Because the Commonwealth did not perfect jurisdiction, it had no right to appeal, and, therefore, did not act with due diligence so as to justify the delay. Following an evidentiary hearing, the trial court denied the motion.

         The Commonwealth tried Burno before a jury from February 26 to March 5, 2007. In an earlier appeal, this Court provided the following thorough summary of the facts presented at Burno's trial:

On April 13, 2003, Mary Meixell Moyer telephoned the police complaining [that] she heard gunshots fired next door at 2628 South 4th Street in Allentown. Upon arriving at the scene, Allentown Police Officer Scott Derr discovered blood on the residence's front steps and on the back of a sign located on the porch. The front door of the residence was ajar, and the inside lights were on when Officer Derr entered the residence to perform a security check. Officer Derr discovered two homicide victims inside the residence and obvious signs that a struggle had taken place within the residence. One of the victims was found lying on his back in the doorway leading to the bedroom, while the other victim was found in the back of the bedroom curled up in a fetal position. Officer Derr secured the scene and waited for detectives from the Criminal Investigation Division to arrive.
Subsequently, the first victim, who was found in the bedroom doorway, was identified as Carlos Juarbe, the lessee of the residence, and the second victim was identified as his friend, Oscar Rosado. Detectives processed the scene and spoke to witnesses. Specifically, when
questioned, Ms. Moyer informed the police that, immediately after hearing gunshots, she saw two men flee the area in a red or maroon compact car with its headlights turned off. The detectives found a trail of blood leading from Juarbe's apartment to the spot where Ms. Moyer saw the car drive away from the area. The detectives recovered various blood samples, shell casings from a nine-millimeter Luger, both jacketed and unjacketed lead projectiles, and a sawed-off 12-gauge double barreled shotgun containing one live shell and one spent shell of bird shot.
The blood evidence, which the detectives recovered from the scene, led police to Terrance Bethea, who the police arrested on September 12, 2003, and charged him with murder. [The investigation led the police to believe that Burno participated in the murders with Bethea].
Later, on the same day, police interviewed Bethea's wife, who informed them that Burno and Bethea arrived together at her house during the early morning hours of April 13, 2003, and Bethea had a shotgun wound. Neither Burno nor Bethea would tell her how or why Bethea was shot. All three proceeded to a hospital in Philadelphia to seek medical treatment for Bethea, and while at the hospital, Bethea gave hospital personnel, and subsequently the police, a false name, false birth date, and false information about how he had been shot.
Thereafter, Detectives Simock and Miller contacted the Lansford Police Department, and based upon information provided by that Department, the detectives determined that Burno owned a car, which matched Ms. Moyer's description of the vehicle that fled the scene of the double homicide. On the evening of September 12, 2003, Burno turned himself into the Allentown Police Department, and he was arrested. The next day, the Commonwealth filed a criminal complaint charging Burno with, inter alia, two counts of criminal homicide, and thereafter, the Commonwealth gave timely notice of its intention to seek the death penalty.
Subsequently, Burno gave several conflicting statements to the police. For instance, he initially gave the police a statement claiming he and Bethea were innocent bystanders who were visiting Juarbe when two armed intruders entered the residence, and Bethea was shot when he got caught in the crossfire between Juarbe and the intruders. However, on September 24, 2003, Burno gave the police a taped statement in which he admitted to some involvement with the crime. Burno explained during the taped statement that, some months prior to the killings, Bethea had informed him that he obtained two handguns when he burglarized his neighbor's apartment. One of the handguns was a nine-millimeter model, which Bethea gave to Burno. [Burno] also explained that, in April of 2003, when he took his ex-wife, Michele Wright, medicine for their daughter, he stole a .38 caliber handgun from underneath Ms. Wright's bed. Burno claimed he drove Bethea to Juarbe's residence on the night in question in order to trade the .38 caliber handgun for drugs and money, and he remained in the car at all times. Burno further claimed in his taped statement that he heard two gunshots and then saw Bethea emerge from Juarbe's residence with a leg wound. Burno asserted [that] he disposed of the stolen guns after he transported Bethea to the hospital in Philadelphia.
On September 26, 2003, Burno gave a third statement to police in which he confessed that he and Bethea went to Juarbe's residence to rob him of drugs and money. In this third statement, Burno admitted [that] he entered Juarbe's residence, [that] he struggled with Rosado, and [that] he shot Rosado in the bedroom with the nine-millimeter handgun. This version was consistent with the trial testimony of David Rawlins, a jailhouse informant who testified pursuant to a plea deal that Burno had provided him with a detailed account of the murders. According to Rawlins' testimony at Burno's trial, Burno claimed that he came to Bethea's aid after Bethea was shot in the leg and he shot Rosado after Rosado dropped to his knees, pleading for his life. Moreover, while jailed in the Lehigh County Prison, Burno made several telephone calls, which were recorded, admitting to his ex-wife and an acquaintance, James Alford, that he was involved in the shootings.
Dr. Samuel Land, a forensic pathologist who performed an autopsy on Rosado, testified that Rosado died of a gunshot wound to the head. The bullet entered his left ear and then severed the jugular vein and carotid artery as it proceeded downward into the body. Based on the trajectory of the bullet, Dr. Land opined that the gunman was above Rosado at the time of the shooting. Another forensic pathologist, Dr. Sara Lee Funke, performed an autopsy of Juarbe, and she observed eleven gunshot wounds, three of which were fatal chest wounds. Dr. Funke recovered from Juarbe a total of five bullets, which were of two different types. She testified that the first type was a leaded, non[-]jacketed projectile, which entered Juarbe from both contact and non-contact wounds, as indicated by the presence or absence of injury to the skin surrounding the point of entry. She concluded that the contact wounds and the positions and trajectories of their entries were consistent with a struggle between the victim and the assailant. She further testified that the second type of bullet recovered from Juarbe, the jacketed ammunition, did not enter through a contact wound. Finally, she noted that, in considering the trajectory of the bullets, with regard to at least one of Juarbe's wounds, the shooter was elevated higher than Juarbe.
A ballistics expert, Pennsylvania State Police Sergeant Eric Wolfgang, analyzed the ammunition recovered from the scene and concluded [that] two guns were utilized during the shootings inside of Juarbe's residence. He testified that the jacketed bullets came from a nine-millimeter handgun and the non[-]jacketed bullets were a .38 Special multi-ball type of ammunition, which was compatible with the gun Burno had stolen from his ex-wife.
Burno took the stand in his own defense and recounted the sequence of events contained in his second police statement, i.e., he claimed that he gave the stolen .38 caliber handgun to Bethea and remained in the car at all times. He claimed [that] he did not know [that] anyone had been killed inside of Juarbe's residence until the next day when he saw a news report about the shooting. Burno maintained [that] he gave a false statement implicating himself in Rosado's murder because he was afraid of the death penalty, and his attorney warned him that Bethea would likely blame him for both murders. In rebuttal, the Commonwealth produced a fourth statement made by Burno that had been previously suppressed by the trial court on Sixth Amendment grounds. This fourth statement contradicted Burno's trial testimony and indicated that Burno had, in fact, shot both Juarbe and Rosado.
At trial, James Alford, the acquaintance to whom Burno had confessed in the recorded prison telephone call, denied any knowledge of Burno's involvement in the shootings. However, Alford admitted that, on April 13, 2003, the night of the murders, he received a telephone call from Burno asking if he could borrow Alford's vehicle, which was larger than Burno's vehicle, to take Bethea to the hospital. Alford described how they exchanged vehicles. Alford acknowledged at trial that he subsequently gave a taped statement to police in which he indicated that, when the men exchanged vehicles on April 13, 2003, Burno admitted to his participation in the death of Juarbe and Rosado. However, at trial, Alford contended [that] his statement to police was "fabricated."
The Commonwealth additionally introduced at trial testimony from Bethea's neighbor, Paul DeMaria, who indicated [that] he had a nine-millimeter handgun, a stereo, and phone stolen from his home only days after informing Bethea that he would be out of town for a few days. Another neighbor, who lived with DeMaria, testified [that] she later observed the stereo and phone in Bethea's residence.

Commonwealth v. Burno, 94 A.3d 956, 959-62 (Pa. 2014).

         At the conclusion of trial, the jury convicted Burno of two counts of first-degree murder. See 18 Pa.C.S. § 2502(a). The case proceeded to the penalty phase, during which the Commonwealth argued that three aggravating circumstances justified imposition of the death penalty: (1) Burno committed a killing in the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6); (2) Burno had a significant history of felony convictions involving the use or threat of violence to the person, id. § 9711(d)(9); and (3) Burno had been convicted of another murder committed at the same time as the offense at issue, id. § 9711(d)(11). Regarding the significant felony convictions aggravator, the Commonwealth introduced evidence of Burno's prior convictions for robbery and conspiracy to commit burglary. Burno took issue with the use of his prior conspiracy conviction, maintaining that the crime did not involve the use or threat of violence to another person.

         The jury found only one aggravator, that Burno had been convicted of another murder at the time of the offense at issue. The jury weighed that factor against the mitigating circumstances that it found pertaining to Burno's character and record and the circumstances of the offense, see 42 Pa.C.S. § 9711(e)(8) ("[a]ny other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense"), and found that the aggravating factor outweighed the mitigating circumstances. Accordingly, the jury recommended two death sentences. On March 6, 2007, the trial court formally imposed the two death sentences.

         On March 12, 2007, Burno's trial and penalty phase attorneys filed post-sentence motions. Therein, Burno alleged, inter alia, that the trial court had committed multiple errors and that Burno's sentence was excessive. Burno also argued that the verdict was against the weight of the evidence and that the trial evidence was insufficient to sustain his first-degree murder convictions. His attorneys also moved to withdraw as counsel, and sought leave to amend or supplement the motions upon receipt of all transcripts. The trial court granted the motion to withdraw as counsel, and appointed a new attorney to represent Burno on appeal. Appointed counsel filed an uncontested motion for leave to file amended post-sentence motions, which the trial court granted. On May 28, 2008, counsel filed amended post-sentence motions in which counsel presented a number of additional claims, including multiple assertions that trial counsel was ineffective.

         Following a three-day hearing, the trial court vacated Burno's judgment of sentence, and awarded him a new trial. Specifically, the trial court determined that trial counsel was ineffective for failing to object to certain portions of the prosecutor's closing argument. See Burno, 94 A.3d at 966-67. Because the court awarded Burno a new trial, it did not rule upon any of the other claims that he raised in his post-sentence motions.

         The Commonwealth appealed the new trial award to this Court, and Burno filed a protective cross-appeal. We first considered the sufficiency of the evidence offered by the Commonwealth to prove Burno guilty of first-degree murder, an examination that we are obligated to undertake even though the trial court did not rule upon the sufficiency claim and even though neither party raised it before this Court. See Commonwealth v. Staton, 38 A.3d 785, 789 (Pa. 2012). In determining that the evidence was sufficient, our Court set forth the following analysis of the relevant evidence:

[T]he Commonwealth presented evidence that, immediately after hearing gunshots fired from Juarbe's residence, Ms. Moyer saw two men flee from the area in a vehicle, which matched the description of a vehicle owned by Burno. Forensics determined [that] the blood trail, which led from Juarbe's residence to the spot where the vehicle had been parked, matched that of Bethea, who later implicated Burno. Uncontested forensics evidence revealed that bullets fired from two guns, including the type of gun [that] Burno had previously stolen from his ex-wife, were found at the scene and killed the victims. Dr. Land testified [that] Rosado died from a gunshot wound to his head, and Dr. Funke testified [that] Juarbe suffered eleven gunshot wounds, including three fatal chest wounds. The Commonwealth presented evidence that Burno turned himself into [sic] the police and confessed to participating in the murders. Additionally, the Commonwealth presented evidence of confessions Burno had made to his ex-wife and Alford while using a county prison telephone, as well as the confession he had made to a jailhouse informant. Although Burno testified [that] he gave the gun, which he had stolen from his ex-wife[, ] to Bethea, and he remained in his vehicle during the killings, the jury was free to discount Burno's testimony and to credit the ample evidence presented by the Commonwealth establishing Burno's identity as a gunman.

Burno, 94 A.3d at 969.

         This Court then focused upon the propriety of the trial court's consideration of ineffective assistance of counsel claims on direct appeal. We noted that, at the time that the trial court reviewed the claims, that court did not have the benefit of this Court's decision in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013). In Holmes, we held that courts should entertain claims of ineffective assistance of counsel on direct review only if there is good cause shown, and "the unitary review so indulged is preceded by the defendant's knowing and express waiver of his entitlement to seek PCRA[3] review from his conviction and sentence, including an express recognition that the waiver subjects further collateral review to the time and serial petition restrictions of the PCRA." Id at 564. In light of this pronouncement from Holmes, we dismissed Burno's ineffective assistance of counsel claims without prejudice, effectively deferring them until collateral review.[4] We then remanded the case to the trial court to consider the claims that Burno had raised in his post-sentence motions that did not implicate the effectiveness of trial counsel and that the court had not yet addressed. Burno, 94 A.3d at 978.

         On remand, the trial court reviewed the remainder of Burno's issues, and determined that Burno was not entitled to relief. Consequently, by order and opinion dated September 28, 2015, that court denied Burno's motions. On October 14, 2015, Burno filed a notice of appeal. On the same day, the trial court directed Burno to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On October 23, 2015, Burno timely filed his concise statement. The trial court did not issue a separate opinion in response to Burno's concise statement. Instead, the court opted to rely upon its prior expressions, including the September 28, 2015 opinion that it issued in support of its decision to deny Burno's post-sentence motions.

         Burno raises the following issues for this Court's consideration:

1. Did the lower court err in admitting [Burno's] September 26, 2003 statement to police as it was obtained by exploitation of the initial illegality in interrogating [Burno] minutes earlier in violation of his right to counsel?
2. Did the lower court err in admitting [Burno's] statement as it was made in the course of negotiations between the parties and was therefore inadmissible under Pa.R.E. 410?
3. Did the lower court err in admitting [Burno's] statement as it was obtained as the result of undue coercion by the prosecutor, who spoke privately with [Burno] in the midst of a post-indictment custodial interrogation when [Burno] was represented by counsel and then pressured him to confess?
4. Did the lower court err in admitting [Burno's] statement as it was obtained as the fruit of ...

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