Monday, August 07, 2017

The Email, the Day Planner and First-Degree Murder

This post examines a recent decision of the Superior Court of Pennsylvania: Commonwealth v. Fitzpatrick, 159 A.3d 562 (2017). The court begins the opinion by explaining that
[t]he 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 cross-appeal.
Commonwealth v. Fitzpatrick, supra.
The Superior Court’s opinion goes on to outline the “factual and procedural history of this case”:
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 `,’ 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.
Commonwealth v. Fitzpatrick, supra.
The Superior Court goes on to explain that
[a]fter 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 `suspicious.’

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 [Victim's] death.

[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.
Commonwealth v. Fitzpatrick, supra.
The court goes on to explain that 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 issues.
Commonwealth v. Fitzpatrick, supra.
In a footnote, the Superior Court explains that the
three issues presented to the trial court were as follows:

I. Was the jury's verdict of guilty against the weight of the evidence, which would entitle the Defendant to a new trial?

II. Did the Commonwealth present sufficient evidence to prove each element of First Degree Murder beyond a reasonable doubt?

III. Did the original trial judge commit reversible error in permitting the Commonwealth to present a handwritten note and email penned by the victim?

Trial Court Opinion, 9/1/15, at 4.
Commonwealth v. Fitzpatrick, supra.
The Superior Court goes on to explain that
[o]n 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 [Pennsylvania Rules of Appellate Procedure Rule 1925. On October 19, 2015, this Court sua sponte consolidated the appeals for disposition.
Commonwealth v. Fitzpatrick, supra.
The opinion goes on to explain that the
Commonwealth presents the following issue for our review:


Commonwealth's Brief at 5.
Commonwealth v. Fitzpatrick, supra.
The opinion goes on to explain that,
In addition, Appellee presents the following issues in his cross-appeal:



Appellee/Cross–Appellant's Brief at 4.
Commonwealth v. Fitzpatrick, supra.
The Superior Court goes on to explain that in
its sole issue on appeal, the Commonwealth argues that the trial court erred in granting Appellee's post-sentence motion for judgment of acquittal. Commonwealth's Brief at 30–81. In essence, the Commonwealth contends that it presented sufficient evidence at Appellee's trial to establish the necessary elements of first-degree murder beyond a reasonable doubt. We are constrained to agree.
Commonwealth v. Fitzpatrick, supra.
The court went on to note that “[o]ur standard of review is as follows:” Commonwealth v. Fitzpatrick, supra. It then explained that a motion for judgment of acquittal
`challenges the sufficiency of the evidence to sustain a conviction on a particular charge, and is granted only in cases in which the Commonwealth has failed to carry its burden regarding that charge.’

`The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.’
            Commonwealth v. Hutchinson, 947 A.2d 800, 805–806 (Pa. Super. 2008) (citations           and quotation marks omitted).
Commonwealth v. Fitzpatrick, supra.
The court goes on to explain that
            Murder is defined, in relevant part, as follows:

§ 2502. Murder

(a) Murder of the first degree.—A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.

18 [Pennsylvania Consolidated Statutes] § 2502(a). The Pennsylvania Supreme Court has discussed the elements of first-degree murder as follows:

To convict a defendant of first degree murder, the Commonwealth must prove: [ (1) ] a human being was unlawfully killed; [ (2) ] the defendant was responsible for the killing; and [ (3) ] the defendant acted with malice and a specific intent to kill.

Commonwealth v. Houser, 610 Pa. 264, 18 A.3d 1128, 1133 (2011) (internal citations omitted.)
Commonwealth v. Fitzpatrick, supra.
The Superior Court went on to explain that a
killing is intentional if it is done in a `willful, deliberate and premeditated fashion.’ 18 [Pennsylvania Consolidated Statutes] § 2502(d).The period of reflection needed to establish deliberation and premeditation may be as brief as a fraction of a second. Commonwealth v. Rivera, 603 Pa. 340, 983 A.2d 1211, 1220 (2009). Indeed, the deliberation and premeditation needed to establish intent exist whenever the assailant possesses the conscious purpose to bring about death. Id. The Commonwealth may use circumstantial evidence to establish the elements of first-degree murder, including the element of intent. Id

Regarding the element of intent, our Supreme Court has long explained that `murder may be committed without a motive, either actual or apparent, but an established motive may go to prove the related intent[,] just as an absence of motive may be used to deny the existence of intent.’ Commonwealth v. Jones, 355 Pa. 522, 50 A.2d 317, 321 (1947) (citations omitted) (emphasis added). In addition, we observe the following:

`When there is no direct evidence of intent to kill, the fact-finder may glean the necessary intent from the act itself and from all surrounding circumstances. Specific intent to kill can be proven where the defendant knowingly applies deadly force to the person of another. Death caused by strangulation is sufficient to infer the specific intent required for a conviction of first degree murder.

Commonwealth v. Hawkins, 549 Pa. 352, 701 A.2d 492, 500 (1997) (citations omitted) (emphasis added). Furthermore, our Supreme Court has stated that `[t]he fabrication of false and contradictory accounts by an accused criminal, for the sake of diverting inquiry or casting off suspicion, is a circumstance always indicatory of guilt.’ Commonwealth v. Homeyer, 373 Pa. 150, 94 A.2d 743, 747 (1953) (quoting Commonwealth v. Spardute, 278 Pa. 37, 122 A. 161, 163 (1923)).
Commonwealth v. Fitzpatrick, supra.
The Superior Court went on to explain that
[o]ur review of the record reflects that each of the three elements of first-degree murder was proven beyond a reasonable doubt. At trial, the Commonwealth presented the testimony of forensic pathologist, Dr. Barbara K. Bollinger, who performed Victim's autopsy three days after the murder. N.T., 5/6/15, at 494–568. Dr. Bollinger opined that the manner of death was drowning. Id. at 497. Further, Dr. Bollinger testified to the multiple injuries appearing on Victim's body, which totaled at least twenty-five. Id. at 563. She stated that Victim had fourteen or more injuries about her torso, eight injuries to her upper extremities, and at least twelve injuries about her lower extremities. Id. at 562–563. Specifically, Dr. Bollinger documented the following injuries to Victim: bruises over the upper and lower lip; bruises over the right temporal region of the head and bruises to the upper right portion of the head; hemorrhages about the back of the head and about the mid aspects of the head; head hemorrhages on the right side of the neck within the muscles of the neck; three bruises to the scapular regions; a patterned bruise on the infrascapular region; several bruises to the right kidney region; abrasions on the left buttock; a bruise on the right buttock; a bruise between the breasts; a small bruise in the right lower abdominal quadrant; a bruise near the shoulder where the Victim's left arm and shoulder meet; a bruise along the left side of the torso that continued to the backside; bruises above the left hip area; a small scratch of the skin in the groin region; bruises on the back of the left thigh; a bruise on the outer aspect of the left foot; a bruise on the back of the right leg; scattered abrasions on the right leg and a severe lasceration to the great toe; abrasions and contusions to the upper and lower parts of both of the arms; scratching and bruising about both of the elbows; scrapes and contusions on the back of both hands. Id. at 505–513.

In addition, Dr. Bollinger opined that, within a reasonable degree of medical certainty, the various bruises and injuries Victim suffered could have resulted from Victim being held under the water in a creek by another person and drowning. N.T., 5/6/15, at 558–564. Furthermore, repudiating Appellee's claim that Victim drowned in an ATV mishap involving both Appellee and Victim, Dr. Bollinger opined that `the lack of injuries to [Appellee] did not correspond with [Appellee's] rendition of the scene circumstances [regarding] what occurred at the time of [Victim's] drowning.’ Id. at 528. Accordingly, this evidence was sufficient for the jury to conclude beyond a reasonable doubt that Victim was unlawfully killed by being drowned in the creek. Thus, we conclude that the Commonwealth established the first element of the crime of first-degree murder.
Commonwealth v. Fitzpatrick, supra.
The opinion goes on to explain that,
[w]ith regard to the second element of first-degree murder, the evidence likewise established that the Commonwealth proved that Appellee was responsible for killing Victim. Indeed, it is undisputed that Appellee and Victim were alone on the property at the time that Victim drowned in the creek. Trooper Grothey testified that during the initial investigation, Appellee explained that he and Victim were celebrating their thirteenth wedding anniversary at the time of the incident and that their two children were staying with Appellee's parents. N.T., 5/5/15, at 225. Appellee has not disputed this fact. Thus, Appellee was the only person who could have held Victim underwater in the creek, thereby making him responsible for the killing.
Commonwealth v. Fitzpatrick, supra.
The Superior Court then took up the issue of Fitzpatrick’s specific intent, explaining that
[c]oncerning the issue of specific intent possessed by Appellee, the Commonwealth presented ample evidence of the couple's estranged relationship, including the fact that Appellee was in the midst of an extramarital relationship with another woman, Jessica Georg. N.T., 5/7/15–5/8/15, at 724–846. Appellee indicated to Ms. Georg that he was nervous about losing his house and his children in a separation or divorce. N.T., 5/8/15, at 772. In addition, Ms. Georg read into the record a Facebook post authored by Appellee to Ms. Georg two weeks prior to the murder, which provided, in relevant part, as follows:

`My children love their home and I would not want to take that from them. I know you are [a] package deal and have frankly thought about how I could change the girls['] rooms to accommodate your girls. But they are the easy things to get past. The hardest will be my separation.’

Id. at 783. Also, on June 1, 2012, Appellee sent Ms. Georg an email which Ms. Georg described as follows, `[Appellee] wrote, I love you, in all caps with more exclamation points tha[n] I can count.’ Id. at 793.
Commonwealth v. Fitzpatrick, supra.
The opinion goes on to explain that
[o]n the evening of June 2, 2012, Appellee sent the following Facebook message to Ms. Georg:
`Can't believe how I've fallen in love with you in such a short period of time. It's crazy when you step back and think about it. I feel like I'm in a jail cell. Wanting something I can't have. So it hurts real bad. I believe you feel the same. I understand your position. Single, want to be with someone, have a man pursuing you that you have been intimate with, so you are torn and want satisfaction. Understanding this, I tried to push the limits, take risks at getting caught prematurely to develop what I truly believe will be something that few people on this earth get to experience. My life is riddled with so many emotions, it's hard to comprehend. I want to be yours. I want to help you pack, move, do whatever I can to help you, but I can't. It feels like something is sticking in my chest with a knife. I hate feeling this way. So tears are filling my eyes because I guess I have to say good-bye [sic] until things are appropriate.’
Commonwealth v. Fitzpatrick, supra.
The court goes on to explain that
Ms. Georg also testified that on the afternoon of the murder, Appellee sent Ms. Georg multiple text messages. N.T., 5/8/15, at 802–805. One of the text messages from Appellee stated, `[R]eally miss you.’ Id. at 803. The next text message from Appellee to Ms. Georg exclaimed, `And really really really feel I was made for you.’ Id. Another text message from Appellee stated, `Yes. But it is true I love you.’ Id.

In addition, on that same afternoon Appellee sent Ms. Georg a text message with the lyrics of the song `You Are My Sunshine,’ and the comment, `Well, maybe one day you won't need to buy another property.’ N.T., 5/8/15, at 805. Appellee ended that particular text message with the statement, `Love you. XOOOOO.’ Id.

The Commonwealth also presented stipulated evidence of the existence of a total of $1,714,000 in life insurance policies upon Victim, with Appellee being the designated beneficiary of those policies. N.T., 5/11/15, at 920–921. In addition, it was stipulated that on the morning of June 1, 2012, Appellee conducted a Google search on his work computer using the words `life insurance review during contestability period.’ Id. at 918. This cumulative evidence, although circumstantial, viewed in the light most favorable to the Commonwealth, is sufficient to establish a motive for Appellee's murder of Victim, thereby satisfying the necessary element of intent.
Commonwealth v. Fitzpatrick, supra.
The Superior Court went on to explain that
[i]n conclusion, the record, viewed in the light most favorable to the Commonwealth, reflects that the Commonwealth established Victim was unlawfully killed and that Appellee committed the murder with the requisite motive and intent. Accordingly, we reverse the order granting Appellee's motion for judgment of acquittal, and remand for reinstatement of the jury verdict on the charge of first-degree murder and judgment of sentence.

Commonwealth v. Fitzpatrick, supra.

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