Commonwealth v. Davis

121 A.3d 551

2015 PA Super 164

COMMONWEALTH of Pennsylvania, Appellant

v.Charles DAVIS, Appellee.

No. 2726 EDA 2013

Superior Court of Pennsylvania.

Argued June 30, 2015.

Filed July 29, 2015.

Peter Carr, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Richard J. Giuliani, Philadelphia, for appellee.

BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, DONOHUE, SHOGAN, ALLEN, LAZARUS, MUNDY, and STABILE, JJ.

Opinion

OPINION BY ALLEN, J.:

The Commonwealth appeals from the trial court's order suppressing confidential statements which Charles Davis (“Davis”) uttered to his spouse, Nicole Walton (“Walton”), outside the presence of third parties. After careful consideration, we affirm.

The trial court detailed the following factual and procedural background of this case as follows:

On July 19, 2012, [Davis] and his alleged co-conspirator, Ali Marsh [ (“Marsh”) ], were charged with murder, attempted murder, robbery, burglary, aggravated assault, criminal conspiracy, possession of an instrument of crime (PIC) and violations of §§ 6105, 6106 and 6108 of the Uniform Firearms Act in connection with a home invasion shooting that left a man dead and his wife seriously injured.

[Davis'] preliminary hearing was held on October 17, 2012 before the Honorable Patrick F. Dugan. Sherrell Paul, the decedent's wife, testified that she and her husband were at home sleeping on the night of the shooting. Sometime between 10:30 and 11:00 pm, Ms. Paul was awakened by her husband's voice. When she went to investigate, Ms. Paul saw an unknown man in the hallway outside her bedroom. A struggle ensued. Ms. Paul kicked the unknown man down the stairs. At that point, shots rang out and Ms. Paul was struck. As she lay on the hallway floor, another unknown male ran past her and into her bedroom. Moments later, the second male came out, grabbed Ms. Paul and demanded money. When Ms. Paul responded that she did not have any, the second male shot her again, inflicting multiple gunshot wounds. (N.T., 10/17/12, pp. 13–22).

Although Ms. Paul could not positively identify the assailants, she did provide a general description of both men. The first—the one that she struggled with initially—she described as black with a beard, wearing [“]a black Nike hoody.” (N.T., 10/17/12, p. 15). The second man she also described as black. He too had a beard, but was thinner than the first man and had a lighter complexion. (N.T., 10/17/12, p. 17).

The Commonwealth also called [Davis'] wife, [Walton], to testify about his involvement in the shooting. Walton testified that she was at home sleeping on the night in question when [Davis] called her. According to Walton, Davis sounded anxious and told her that he needed her. Walton then drove to a pre-arranged location, where she met Davis and Marsh. She noticed that Marsh had been shot in the foot and was bleeding. Walton and Davis helped Marsh into Walton's truck. When Walton suggested taking Marsh to the closest hospital in Philadelphia, Marsh insisted that she take him to a hospital in another state. Ultimately, Walton drove Marsh to a hospital in Maryland. When they arrived at the hospital, Walton and Davis dropped Marsh off and returned to Philadelphia. Walton claimed inexplicably, that during the two hour ride to Maryland, the three of them never discussed what really happened on the night of the shooting. Instead, they discussed fabricating a story that Marsh had been robbed and shot in the foot. (N.T., 10/17/2, pp. 23–35).

The Commonwealth, over the objection of defense counsel, was permitted to illicit testimony about private incriminating conversations between [Davis] and Walton. During those conversations, which took place on the night of and a few days after the incident, [Davis] made numerous admissions to Walton about his involvement in the fatal shooting. Walton denied making the statements and claimed that they were fabricated by police.

[FN:1 Walton's statements were admitted as substantive evidence. See Commonwealth v. Liveley [Lively ], 530 Pa. 464, 610 A.2d 7 (Pa.1992). In one statement, Walton told police that after returning to Philadelphia[,] Davis told her: “[w]e got into some shit last night, Nic. It's bad. Real bad.” In a second statement, Walton told police that she met Davis at 50th Street and Baltimore Avenue. Walton asked Davis if he had been involved in the murder in question. He responded: “Yeah, this shit is bad.” When she then inquired why they had shot the deceased's wife, [Davis] said “that was Ali's dumb ass. He said he got his self shot and them n–––––s left him there.” Davis also told Walton that he had to go back into the house to drag Ali out because Ali could not move. No third parties were present during either of these conversations between Ms. Walton and Davis. (N.T., 10/17/12, pp. 27–36, 45–52, 61–64).]

On cross-examination, Walton stated that she believed the conversations with her husband were confidential and that they were not made in the presence of any third parties.

The Commonwealth and defense also agreed to several stipulations. First, the decedent, John Derek Paul, was shot to death inside his home at 3113 Cecil B. Moore Avenue on March 5, 2012. Second, there was a blood trail [that] led from the inside of the decedent's home out to the street. This blood was tested and ultimately found to match that of [Marsh]. Finally, six .45 caliber and six .40 caliber cartridge casings were found in the entryway of the home, on the steps leading to the second floor and on the second floor landing. (N.T., 10/17/12, pp. 10–11).

At the conclusion of [Davis'] preliminary hearing, the presiding Municipal Court Judge held both Davis and Marsh for trial on all charges.

Davis filed a Motion to Quash with this court, claiming that the aforementioned private conversations between Davis and his wife were protected by the spousal testimony/confidential communications privileges of 42 Pa.C.S.A. §§ 5913 and 5914 and had improperly been admitted at the preliminary hearing. Without those statements, the defense argued, the Commonwealth failed to establish a prima facie case against Davis on any charges relating to the home invasion itself.

On May 2, 2013, at a hearing before this court, the Commonwealth argued that although the disputed testimony fell under the spousal testimony/confidential communication privilege statutes, it was nonetheless admissible under a crime fraud exception. In support of its claim, the Commonwealth cited numerous federal cases in which confidential communications made in furtherance of a crime or criminal activity were deemed admissible. See: U.S. v. James Hill, 967 F.2d 902 (3rd Cir.1992) ; U.S. v. Ammar, 714 F.2d 238 (3rd Cir.1983) ; U.S. v. Broome, 732 F.2d 363 (4th Cir.)cert. denied, 469 U.S. 855 [105 S.Ct. 181, 83 L.Ed.2d 116] (1984) ; U.S. v. King, 541 F.3d 1143 (5th Cir.2008) ; U.S. v. Neal, 743 F.2d 1441 (10th Cir.1984).

This court initially agreed with the Commonwealth's assertion. It ruled that the statements were admissible under the crime fraud exception and denied the Motion to Quash.

Davis filed a Motion for Reconsideration in which he cited Commonwealth v. Savage, 695 A.2d 820 (Pa.Super.1997), wherein former President Judge Vincent A. Cirrillo, writing for the majority, directly confronted this issue. The [Superior C]ourt in Savage held that there was no crime/fraud exception to the spousal privilege for confidential communications.

On August 22, 2013, after reviewing Savage and considering further arguments, this court reversed its original position on the admissibility of Walton's testimony about the confidential communications with her husband. The court ruled such testimony was inadmissible. However, based upon the totality of the admissible evidence presented at the preliminary hearing, and considering that evidence and the reasonable inferences drawn therefrom in the light most favorable to the Commonwealth, this court ruled that even without the confidential communication testimony, the Commonwealth had made a prima facie case against Davis.

On September 23, 2013, the Commonwealth filed the instant interlocutory appeal along with a Statement of Matters Complained of on Appeal, alleging that the court erred in suppressing Ms. Walton's testimony. On October 4, 2013, [Davis] filed a cross-appeal. In his Statement of Matters Complained of on Appeal, filed on November 8, 2013, [Davis] alleged that the court erred by not granting his Habeas Corpus motion for discharge.

Trial Court Opinion, 3/25/14, at 1–5.

On March 25, 2014, the trial court issued its opinion pursuant to Pa.R.A.P. 1925. On October 28, 2014, our Court issued a per curiam order determining that the Commonwealth's appeal “should be considered by the Court sitting en banc [.]” Order, 10/28/14, at 1. On January 28, 2015, by per curiam order, we quashed as interlocutory Davis' cross-appeal at 2972 EDA 2013 from the trial court's denial of Davis' habeas corpus motion for discharge.

Instantly, we consider the Commonwealth's sole issue:

Should the [trial] court's exclusionary order, which depends on the erroneous premise that there is no crime fraud exception to the marital privilege in criminal cases, be reversed?

Commonwealth Brief at 2.

In support of its contention that the confidential communications between Davis and Walton “should be deemed admissible under the crime-fraud exception to the marital privilege,” the Commonwealth argues:

[T]he Pennsylvania Supreme Court has recognized a crime-fraud exception to the indistinguishable attorney-client privilege in criminal cases. This Court itself has recognized a crime-fraud exception to the marital privilege in civil cases. And a significant majority of other jurisdictions have recognized a crime-fraud exception to the marital privilege in both civil and criminal cases.

Commonwealth Brief at 10 (emphasis in original). The Commonwealth emphasizes that the “statute codifying the attorney-client privilege in criminal cases is identical to that codifying the...