Com. v. McBurrows

779 A.2d 509

COMMONWEALTH of Pennsylvania, Appellant v. Javan McBURROWS, Appellee.

Superior Court of Pennsylvania.

Argued December 15, 2000.

Filed June 1, 2001.

Mary M. Killinger, Assistant District Attorney, Norristown, for Com., appellant.

Garrett D. Page, Norristown, for appellee.

Before: McEWEN, President Judge, DEL SOLE, KELLY, POPOVICH, JOHNSON, JOYCE, MUSMANNO, ORIE MELVIN and LALLY-GREEN, JJ.

ORIE MELVIN, J.

¶ 1 In this prosecution for murder in the first degree, the Commonwealth has appealed from the Order which granted in part the defense's omnibus pre-trial motion to suppress the testimony of the Appellee's wife on the grounds of spousal privilege pursuant to 42 Pa.C.S.A. § 5914. At issue is whether a wife's observation of her husband's disposal of the alleged murder weapon is a confidential communication between spouses protected under § 5914. For the reasons that follow, we reverse.

¶ 2 The facts and procedural history may be summarized as follows. On January 15, 1999, the Appellee was charged with first and third degree murder, voluntary manslaughter, recklessly endangering another person, possessing an instrument of a crime and endangering the welfare of children.¹ These charges arose out of the fatal abuse allegedly inflicted by the Appellee against a minor child, Michael Davis (age 4), who was in his care on January 9, 1999.²

¶ 3 On the evening in question, the Appellee's wife, Mrs. McBurrows, testified she observed the abuse which was inflicted upon the victim. The suppression court summarized her rendition of the events from her statements to the police on January 11, 1999 and January 13, 1999 as well as her preliminary hearing testimony on March 3, 1999 as follows:

Mrs. McBurrows was at home at the time of the events leading up to Michael's death in the early morning hours (approximately 3:00 a.m.) of January 9, 1999. She was in her second-floor bedroom with her baby and her 18 month old when her husband summoned Michael into the bathroom, which was next to Mrs. McBurrows' bedroom. Michael walked in upon [one of the minor female children] using the toilet.

According to Mrs. McBurrows, her husband had made the children close their eyes when they found someone of the opposite sex in the bathroom. Michael apparently had failed to do this, and Mrs. McBurrows overheard her husband question Michael as to what he was supposed to do when he saw a female in the bathroom. Michael was unresponsive, and Mrs. McBurrows heard her husband slap the child on both sides of his face. Mrs. McBurrows walked into the bathroom and heard the defendant repeat the question. This time, Michael replied that he was supposed to close his eyes. She saw her husband hit the child again. Defendant asked the question one more time and, again, Michael responded as before. Defendant hit him a third time, and Michael answered yet a third time that he should close his eyes.

Defendant stopped beating Michael to feed him pizza. Shortly thereafter, Mrs. McBurrows' attention was once again drawn to the scene in the bathroom, where defendant was now holding a mason's level and admonishing Michael that he was not to do "nasty" things because he was a boy. Defendant asked Michael what he was. When Michael replied that he was a boy, defendant swung the level and struck Michael twice on the back of his legs. Mrs. McBurrows tried to intervene, but defendant raised the level at her, demanding to know what she wanted. Fearing for her safety, she backed down.

Defendant again asked Michael what he was and, again, Michael said he was a boy. Defendant struck him another time on the legs. Mrs. McBurrows saw him strike the child with the level a total of five to ten times on the legs. Eventually, Michael fell to the floor.

Subsequently, Michael asked defendant if he could have something to drink. Defendant gave him carrot juice and water and then forced him to walk back and forth the length of the second floor about four or five times.

When Mrs. McBurrows saw the boy tire, she cautioned her husband. Defendant put the child's coat on and pulled him outside into this snowy front yard. The child's shoe had come off and, as his foot sank into the snow, he commented that his shoe was gone. After rubbing snow in the child's face, defendant took him upstairs and placed him in the bathtub, which was full of water. By that time, however, the water was cold, and defendant directed his wife to go downstairs and bring up hot water for Michael's bath.

Five to ten minutes later, Mrs. McBurrows returned to the bathroom and saw that Michael's eyes were closing. She left to get more water. When she re-entered the bathroom, she saw defendant throw Listerine antiseptic in the child's eyes. She returned to her bedroom; it was not long before she heard gurgling sounds coming from the bathroom and heard her husband call to her that Michael was "in trouble" She went into the bathroom and saw her husband lift the child from the bathtub and, after that, to try to open the child's mouth with his fingers. He could not. He told his wife to get more warm water.

When she returned, defendant had Michael across his knees and was slapping him on the back. Michael vomited in the tub. Defendant laid him on the floor and performed CPR. Michael vomited again. Defendant asked his wife to listen for the boy's heartbeat. Hearing only a faint heart beat, she demanded they take Michael to hospital.

Defendant wrapped Michael in a sheet and carried him to their van, instructing her to drive to the hospital. As he was doing this, he asked his wife if she was going to "fold" on him. She proceeded to take Michael by herself to Abington Hospital.

Almost three hours later, at approximately 7:00 a.m., she returned home and told her husband that Michael had been transported from Abington Hospital to Children's Hospital of the University of Pennsylvania (CHOP). Shortly thereafter, Mrs. Darlene David appeared at the house. Defendant had asked her to watch the children while he and his wife went for a short drive. Defendant did not tell Mrs. David or his wife where they were going.

As Mrs. McBurrows got in the van, she saw two mason's levels inside an open plastic bag on the floor of the front seat. One of the levels was the one she saw her husband use to strike Michael that morning. She saw a second bag from which protruded a BB rifle.

Defendant drove them to an abandoned church in the Germantown section of Philadelphia, where he stopped the van, took the levels from the bag and threw them over the fence. As he threw them, he told her he was donating them. Mrs. McBurrows said she heard one of the levels hit what sounded like a pole on the other side of the fence.

On their way back to their house, Mrs. McBurrows placed a call on her cellular phone to CHOP to check on Michael's condition. While the hospital was processing her inquiry, a call came in from Mother Davis, Michael's grandmother, which defendant answered. Defendant apparently having been told Michael had died, screamed "I don't believe it." He also spoke with Erika Daye, Michael's biological mother, and one of the CHOP doctors. He passed the phone to his wife, who also spoke with Mother Davis and assured her they would be on their way to CHOP.

The McBurrows drove home, awakened the children, loaded his own children into the van and the Daye children into Mrs. David's car. Mrs. McBurrows thought the plan was that Mrs. David would drive their children to her home in Edgewater Park, New Jersey, and she and her husband would take Mrs. David's car with the Daye children to be with their mother at the hospital. As it turned out, at the last moment, a police car drove down the street as they were in the final stages of departure. Defendant climbed into his van with his five children and drove off. Mrs. McBurrows then accompanied Mrs. David and the Daye children in the car to Mrs. David's house in Edgewater Park, New Jersey. Along the way, Mrs. McBurrows contacted her husband to let her know where they were going. As they pulled into Mrs. David's house, defendant was waiting for them.

Defendant quickly collected the Daye children into the van and proceeded to drive to Georgia, where Mrs. McBurrows' sister lived. Along the way, Mrs. McBurrows noticed the bag with the BB rifle was no longer in the van. Defendant told her he threw the bag in the sewer. He asked if she was still "with him" or if she was going to "fold" on him. He discussed his going to jail and whether she would remarry. He insisted that he would be set up if he went to CHOP. He also admitted to her he might have injured Michael by trying to resuscitate him and hitting him on the back.

They arrived at her sister's house in Georgia on January 10, 1999 at 3:00 a.m., and Defendant was soon apprehended by the police.

Suppression Court Opinion, 8/31/99, at 3-7.

¶ 4 On May 18, 1999, the Appellee filed an omnibus-pre-trial motion seeking among other things, to preclude the testimony of his wife on the basis of spousal immunity or privileged communications pursuant to 42 Pa.C.S.A. §§ 5913, Spouses as witnesses against each other, and 5914, Confidential communications between spouses. A hearing was held on the motion on June 28, 1999. Following the hearing, the defense agreed to submit the challenged portions of Mrs. McBurrows' testimony from her statements given to the police on January 11, 1999 and January 13, 1999, as well as her testimony from the preliminary hearing on March 3, 1999.

¶ 5 By Order dated July 20, 1999, the suppression court granted in part and denied in part Appellee's suppression motion. For purposes of this appeal, the suppression court found Mrs. McBurrows' testimony regarding her observation of Appellee's disposal of the mason's level allegedly used to beat the victim to death was privileged pursuant to § 5914.³ The Commonwealth filed a notice of appeal on July 21, 1999. In the notice of appeal, the Commonwealth certified pursuant to Pa.R.A.P. 311(d)...