In re Interest of J.B.

147 A.3d 1204

2016 PA Super 198

In the Interest of: J.B.

Appeal of: J.B.

No. 980 WDA 2015

Superior Court of Pennsylvania.

Argued May 17, 2016

Filed September 1, 2016

Dennis A. Elisco, New Castle, for appellant.

Katherine E. Burdick, Philadelphia, for appellee.

Gregory J. Simatic, Assistant District Attorney, Pittsburgh, for Commonwealth, participating party.

BEFORE: OLSON, STABILE, and MUSMANNO, JJ.

OPINION BY STABILE, J.:

Appellant, J.B., appeals from the May 18, 2012 order of disposition. We affirm.

This action arises from the February 20, 2009 murder of K.M.H. (the “Victim”). On that date, the Victim was engaged to and living with C.B., Appellant's father, in a rented two-story farmhouse situated near wooded areas and farmland in Wampum, Pennsylvania. Appellant (then 11 years old) and the Victim's two daughters, J.H. (then age 7) and A.H. (then age 4) also lived in the house. The Victim was eight months pregnant.

A light snowfall covered the ground that morning. C.B. left for work at 6:45 a.m. and arrived around 7:00 a.m. N.T. Adjudication Hearing, 4/11/2012 at 146-47. State police subsequently confirmed that C.B. was at work during the commission of the crime and C.B.'s hands tested negative for gunshot residue. Id. at 63, 82, 138, 147. Police quickly eliminated C.B. as a suspect.

In preparation for their new baby, C.B. and the Victim were trading bedrooms with Appellant. They were relocating their belongings from their first floor bedroom to Appellant's upstairs bedroom. The upstairs bedroom adjoined a smaller bedroom the couple intended to use as a nursery. Appellant was moving to the first floor bedroom. N.T. Adjudication Hearing, 4/10/2012 at 95, 108; N.T. Adjudication Hearing, 4/11/2012 at 68-69. On the morning of the murder, Appellant had to go downstairs to get dressed because his clothes had been moved to the first floor bedroom. N.T. Adjudication Hearing, 4/11/2012 at 68-69.

Appellant gave a statement to Trooper Janice Wilson, of the Pennsylvania State Police, describing his actions on the morning of the murder. Appellant said he awoke in the upstairs bedroom, retrieved clothes from the downstairs bedroom, and dressed in a downstairs bathroom. Id. at 69. Once he was dressed and ready, Appellant and J.H. sat on the couch watching television. Id. A.H. was still asleep. Id. at 66. Appellant heard the Victim click her cell phone either open or shut, presumably to check the time. Id. at 69-70. According to Appellant, the Victim told him and J.H. to leave or they would miss the bus. Id. at 70. Appellant and J.H. left the house at 8:13-8:14 a.m. Id. at 89. As Appellant traversed the driveway, he noticed a large black truck parked by the garage. Id. at 65-66.

The school bus driver testified that Appellant and J.H. were about a third of the way down the driveway as the bus approached, with Appellant leading J.H. by about ten yards. N.T. Adjudication Hearing, 4/10/2012 at 152. Normally, they were halfway or three quarters of the way down their long driveway as the bus approached. Id. at 151. As the children ran toward the bus, the driver did not observe either child stray from the driveway or discard anything. Id. at 153-56. Appellant and J.H. took their assigned seats and exhibited no unusual behavior. Id.

Just after 9:00 a.m., a tree service crew arrived at the residence to collect firewood purchased from the property owner. Id. at 13-14, 19, 150. The driveway was the only way in or out of the property by vehicle. Id. at 42; N.T. Adjudication Hearing, 4/11/2012 at 147. The crew came in three trucks, with Steven Cable's truck in the lead. N.T. Adjudication Hearing, 4/10/2012 at 14, 20. Cable, the owner of the tree service, observed a light coating of snow on the driveway approximately 1/8 to 1/4 of an inch in depth. Id. at 20. Cable did not observe any tire tracks in the driveway. Id. at 17, 31. He did observe two sets of children's footprints in the center of the driveway. Id. at 21-22, 38. Shortly after the crew began its work, Cable noticed a little girl (A.H.) at the door crying. Id. at 23. As Cable approached, A.H. told him “her mother was dead.” Id. at 25. Cable was unable to reach the property owner to get permission to enter the residence, so he called 911. Id. at 25. Cable remained at the door with A.H. until police arrived. Id. at 26.

Trooper Harry Gustafson and Corporal Jeremy Bowser of the Pennsylvania State Police arrived at 10:13 a.m. Id. at 43-46. Trooper Gustafson entered the house and observed the Victim lying on her left side in a large pool of blood on the bed in the first-floor bedroom. Id. at 49, 71. The cause of the injury was not immediately apparent, but the Victim was obviously dead. Id. at 49-50. Trooper Gustafson immediately summoned paramedics. While awaiting their arrival, Trooper Gustafson and his partner took turns using a valve mask in an attempt to get air to the unborn baby. Id. While that effort was ongoing, Trooper Gustafson heard A.H. talking. Id. at 59. Trooper Gustafson investigated and found A.H. talking on a cell phone. Id. Trooper Gustafson asked A.H. for the phone and spoke to the caller. Id. at 59-60. It was the Mohawk Elementary School nurse calling the Victim to inform her that Appellant was ill and wanted to come home. Id. at 59-60. Trooper Gustafson identified himself, explained that he was investigating a serious situation, and asked the nurse to keep Appellant at school until police could arrange for someone to pick him up. Id. at 60.

The paramedics arrived at 10:40 a.m. Their examination revealed a gunshot wound to the back of the Victim's neck. Id. at 82, 85. Neither the Victim nor her unborn child displayed any vital signs. Id. at 81. Paramedics notified the coroner's office, and the Victim and her unborn child were pronounced dead. Id. at 81.

Corporal Andrew Pannelle of the Pennsylvania State Police Forensic Services

Unit testified that he arrived at the scene around noon, and, after obtaining a search warrant, he examined the interior and exterior of the residence. Id. at 89-90. As Corporal Pannelle did an initial walk through of the residence for security purposes, he observed the Victim lying on the bed in the first floor bedroom. Id. He testified that he did not notice any signs of forced entry or signs of a struggle in the residence. Id. at 93. Corporal Pannelle did not notice any obvious evidence outside the residence. Id. at 96-97. Corporal Pannelle testified that all of the doors to the house were unlocked. Id. at 124. He opened the doors to the armoire in the first floor bedroom and found a gun safe on the bottom shelf, containing two handguns and ammunition. Id. at 103. On the top shelf, he found a work helmet and two boxes of shotgun shells—one opened and one closed. Id. at 104. The open box contained sixteen unfired rounds of Federal Premium Wing-Shok .20 gauge shotgun ammunition. Id. at 104-06.

Sergeant Ken Markilinski, also of the Pennsylvania State Police, accompanied Corporal Pannelle to examine the second floor of the residence. They found six long guns in Appellant's upstairs bedroom, partially covered by an orange cloth. Id. at 108-109. One of the guns, a Harrington and Richardson youth model .20 gauge shotgun, smelled as if it had been freshly fired. Id. at 113, 130-131, 142. It had gunpowder residue in the breech. Id. at 141. Based on his personal experience as a hunter for over forty years and as a twelve-year participant in a skeet shooting league, Sergeant Markilinski testified that the odor and presence of residue indicated to him that the weapon had been fired “within recent hours.” Id. at 141-142. The odor of burnt gunpowder was “still pungent,” and Sergeant Markilinski was able to wipe away some of the residue with his finger because the residue did not have time to harden. Id. at 142. Sergeant Markilinski said it is possible for the odor of burnt gunpowder to remain on a gun for up to a day. Id. at 144. The Commonwealth did not offer Sergeant Markilinski as an expert witness. Id. at 144.

Trooper Wilson attempted to speak with A.H. at the scene, but she was in a state of shock and incapable of answering questions. N.T. Adjudication Hearing, 4/11/2012 at 60-61. At approximately 12:00 p.m., Trooper Wilson went to Mohawk Elementary School to interview J.H. and Appellant. Trooper Wilson testified that, during a ten-minute interview J.H. “really didn't have much to offer about what had happened that morning.” Id. at 64. J.H. was “very, very distraught” when Trooper Wilson first arrived, but she calmed down when told she was not in trouble. Id. J.H. and A.H. did not testify at the adjudication hearing.

After J.H.'s interview, Trooper Wilson interviewed Appellant in a conference room in the presence of the school guidance counselor. Id. Appellant had been sleeping in the nurses office, but he was responsive during the interview. Id. at 65. Trooper Wilson, without informing Appellant of the death of the Victim, asked him who was at the residence that morning. Appellant stated that the Victim, J.H., and A.H. were the only other persons present after C.B. left for work. Id. at 65-66. Appellant stated that that A.H. was still asleep when he and J.H. left for school. Id. Appellant also saw a “black, large pickup truck parked back by the garage” as he was walking down the driveway to catch the school bus. Id. at 66. When Trooper Wilson asked for more details about the black truck, Appellant said he did not know if it was running, and he did not see anyone inside. Id. Appellant said the truck was the same kind as the property owner and another man used when they came to feed cows. Id. at 66-67. Appellant also described his own actions that morning, as we have already set forth above.

The night before the murder, Adam Harvey, the Victim's ex-boyfriend, was escorted out of a nightclub after having a verbal altercation with the Victim's parents. Id. at 126. He testified that he subsequently went back to his parents' house, where he was living in the basement. I...