from the Order Entered September 1, 2015 In the Court of
Common Pleas of York County Criminal Division at No(s):
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STEVENS, P.J.E.
Commonwealth of Pennsylvania appeals from the order granting
the post-sentence motion for judgment of acquittal filed by
Appellee, Joseph Bernard Fitzpatrick, III. In addition,
Appellee has filed a cross-appeal. For the following reasons,
we reverse and remand for reinstatement of the jury verdict
and judgment of sentence, and we quash Appellee's
trial court summarized the factual and procedural history of
this case as follows:
On June 6, 2012, emergency personnel were dispatched to 2288
Old Forge Road in Chanceford Township, which is located in
York County, Pennsylvania. EMTs found [Appellee] and his
wife, Annemarie Fitzpatrick ["Victim"], down near
the shore line of Muddy Creek. [Victim] was unresponsive, but
EMTs were eventually able to get a pulse and she was
transported to the hospital. A short time later, [Victim] was
pronounced dead. Foul play was not suspected and the family
began making arrangements; [Victim's] body was sent to
the mortician for embalming.
Two days later, on June 8, 2012, the Pennsylvania State
Police received a call from Rebekah Berry, who was employed
by the same company as [Victim]. Employees at Collectibles
Insurance had found a note in [Victim's] day planner that
they felt was "suspicious." The note said, "If
something happens to me - JOE." It was dated June 6,
2012, and signed "A. Fitzpatrick." Upon request,
Ms. Berry was given access to [Victim's] work email where
she found an email from [Victim] to
'email@example.com, ' which was [Victim's]
personal [email] account. The subject line of the email
stated, "if something happens to me, " and the body
of the email read 'Joe and I are having marital problems.
Last night we almost had an accident where a huge log fell on
me. Joe was on the pile with the log and had me untying a
tarp directly below." This email was sent June 6, 2012
at 10:30 A.M. Ms. Berry showed police the note and gave them
access to [Victim's] email account.
After viewing the note and email, troopers contacted
[Appellee] and asked if he would be willing to come in for an
interview; [Appellee] agreed. [Appellee] was asked to again
explain what occurred the night [Victim] died; he was never
asked about the note or email.
On June 9, 2012, approximately two days after [Victim's]
death and after the body had been embalmed, an autopsy was
conducted. Dr. Barbara Bollinger, the forensic pathologist,
determined that the cause of death was drowning. Although she
was not asked to opine on the manner of death, she did state
that she thought the circumstances were
From the point the handwritten note and email were found, the
investigation turned from an accident investigation into a
homicide investigation with the prime suspect being
[Appellee]. Eventually, troopers discovered that [Appellee]
was having a non-sexual affair with a woman named Jessica
Georg, and was thinking of leaving his wife for her. When
confronted, [Appellee] admitted to hiding [Victim's]
phone from the police in an effort to hide this affair.
Troopers also discovered that [Appellee] would gain
approximately $1.7 million in life insurance if [Victim] were
to die. After searching [Appellee's] work computer,
troopers recovered two Google searches from around the time
of [Victim's] death. The first search, done on June 1,
2012, searched for "life insurance review during
contestability period." The second search, done on June
5, 2012, searched for "polygraph legal in which
states." This all led to [Appellee's] arrest on
March 6, 2014 - approximately a year and a half after
[Appellee] was formally arraigned on May 19, 2014, and
Christopher A. Ferro, Esquire, entered his appearance on May
22, 2014. The case was assigned to the Honorable Gregory M.
Snyder, who scheduled a pre-trial conference for August 18,
2014. After two extensions, [Appellee] filed an omnibus
pre-trial motion on August 7, 2014. In that motion he raised
several issues, however, because he only raises the issue of
the hearsay note and email in his post-sentence motion we
will not discuss the other issues. Specifically, [Appellee]
argued that the handwritten note and email were inadmissible
hearsay and the Commonwealth should not be allowed to present
either as evidence. The Commonwealth countered that the note
and email were hearsay, but admissible under the state of
mind exception. On October 20, 2014, Judge Snyder denied
[Appellee's] request, and permitted the Commonwealth to
present both the handwritten note and email.
The case was reassigned to the undersigned Judge due to Judge
Snyder's reassignment into the Family
Division. We listed the case for trial during the
May term of trials.
[Appellee's] trial began on May 4, 2015. On May 13, 2015,
[Appellee] was found guilty of First Degree Murder, and was
sentenced to life imprisonment on the same day. On May 22,
2015, [Appellee] filed a timely post-sentence motion. We
directed each side to submit briefs in support of their
respective positions by the close of business July 1, 2015.
[Appellee] filed his brief on June 30, 2015, and the
Commonwealth filed its brief July 2, 2015.
After reviewing the briefs, we scheduled oral argument on the
sole issue of whether the Commonwealth presented sufficient
evidence to prove beyond a reasonable doubt that [Appellee]
unlawfully killed his wife. That argument took place on
August 6, 2015. We reserved decision on all three
Trial Court Opinion, 9/1/15, at 1-4.
September 1, 2015, the trial court issued an order denying in
part and granting in part Appellee's post-sentence
motion. Specifically, the trial court denied Appellee's
request for a new trial, but granted Appellee's motion
for judgment of acquittal based on the Commonwealth's
failure to present sufficient evidence to sustain a
first-degree murder conviction. Order, 9/1/15, at 1. Also on
September 1, 2015, the Commonwealth filed an appeal. On
September 29, 2015, Appellee filed a cross-appeal from the
September 1, 2015 order. The Commonwealth, Appellee, and the
trial court have complied with Pa.R.A.P. 1925. On October 19,
2015, this Court sua sponte consolidated the appeals
Commonwealth presents the following issue for our review:
I. DID THE TRIAL COURT ERR IN GRANTING [APPELLEE'S]
POST-SENTENCE MOTION FOR ACQUITTAL AS THE EVIDENCE WAS
SUFFICIENT TO SUSTAIN A FIRST DEGREE MURDER CONVICTION?
Commonwealth's Brief at 5.
addition, Appellee presents the following issues in his
I. WHETHER THE TRIAL COURT, AFTER DETERMINING THE
COMMONWEALTH FAILED TO PRESENT SUFFICIENT EVIDENCE TO PROVE
EACH ELEMENT OF FIRST DEGREE MURDER BEYOND A REASONABLE
DOUBT, PROPERLY GRANTED A JUDGEMENT [sic] OF ACQUITTAL?
II. WHETHER [APPELLEE] WAS DENIED RIGHTS GRANTED TO HIM BY
THE UNITED STATES CONSTITUTION AND PENNSYLVANIA CONSTITUTION
WHEN INADMISSIBLE HEARSAY, IN THE FORM OF A NOTE AND EMAIL
FROM [APPELLEE'S] DECEASED WIFE, WAS ADMITTED INTO
EVIDENCE AND USED BY ...